Punjab

Ludhiana

CC/14/646

Mr.Dhiraj Rana - Complainant(s)

Versus

Padam Motors - Opp.Party(s)

Dhiraj Rana Adv.

27 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 646 of 17.09.2014

Date of Decision            :   27.09.2016

 

Mr.Dhiraj Rana House No.12884, Sector 18, Vishkarma Colony, Ludhiana, Punjab,141003.

….. Complainant

                                                         Versus

1.The Manager Padam Cars Private Limited, G.T.Road, Dhandari Kalan, Khasra No.279/3, Dhandari Kalan, Ludhiana, Punjab 141010.

2.The Managing Director, Chevrolet Sales India Pvt. Ltd., Ist Floor, Plot No.15, Sector 32, Gurgaon-122001, Haryana.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Damandeep Singh, Advocate     

For OP1                         :         Sh.Rajeev Abhi, Advocate

For OP2                         :         Sh.Kamal Kumar, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant purchased a Chevrolet Beat LS car bearing registration No.PB-10-EQ-2770 from OP1, the authorized dealer of OP2 on 12.2.2014 on payment of Rs.5,16,000/-. Since from the date of purchase, complainant has been facing problem to the effect that AC was not working properly and as such, he reported the matter to employee of OP1 many times. The vehicle was inspected and repaired a number of times. Despite several visits to the service centre of OP1, issue has not been resolved. Even emails on many occasions were sent, but to no effect. Despite sending of letter dated 19.8.2014, the grievance of the complainant has not been resolved, despite the fact that he is a consumer. By pleading deficiency in service on the part of OPs, directions sought to the effect that Ops should apologize for the inconvenience caused to the complainant and even directions sought against Ops for calling upon them to repair the defects or provide a new and non-defective vehicle at the earliest. Compensation for mental harassment and agony of Rs.30,000/- and litigation expenses of Rs.1000/- claimed.

2.       In written statement filed by OP1, it is pleaded interalia as if the present complaint is barred in view of section 26 of the Consumer Protection Act; complaint bad due to non-joinder and mis-joinder of necessary parties because no firm working under the name and style of M/s Padam Motors exist and that there is no defect in the air conditioner unit of the purchased car. Besides, it is claimed that complicated question of law and facts are involved requiring elaborate evidence and as such, remedy available with the complainant is to approach the Civil Court. Complainant even alleged to be estopped by his act and conduct from filing the complaint. Padam Cars Pvt. Ltd is duly incorporated under the Companies Act and as such, description of OP1 is not proper at all, particularly when the complaint has been filed against M/s Padam Cars Pvt. Ltd. Job card bearing No.001896 dated 24.5.2014 was prepared due to complaint of A.C.cooling low. This job card was prepared when the car had travelled distance of 2234 Kms. On checking and inspection of the A.C.unit, it was found that fin sensor requires adjustment and the same was adjusted. Thereafter, car was returned to the complainant after due repairs and without getting any charges. Complainant approached OP1 for running repair on 3.6.2014 after the car travelled distance of 2826 Kms. Complaint of air cleaner was lodged and job card No.002162 was prepared. The air cleaner was replaced without charging anything from the complainant. Again on complaint of complainant qua AC cooling less on mileage of 3864 Kms, A.C.cooling was thoroughly checked and entire AC unit i.e.heater and air conditioning evaporator module was replaced with the original AC unit manufactured by OP2. That replacement was done without getting any charges because the repair was carried out in the guarantee period. Complainant received the car after due check up and after recording satisfaction note on the job card. A.C.Unit of the car functioning properly. However, on 3.7.2014, when the car travelled distance of 4281 Kms, complaint of A.C.cooling less was submitted by the complainant and job card No.003171 was prepared. Air conditioner/AC refrigerant pressure sensor was replaced without any charges. Complainant came for first free service on 9.8.2014, when the car travelled mileage of 5028 Kms. Free service was provided and complaints of A.C/Air filter clean, check AC problem, check break noise, engine oil rep., noise coming into 2000 rpm were resolved. A.C/Air filter was cleaned, fin sensor was checked and adjusted, but there was no fault of break noise because the same was found OK. Car was delivered to the complainant subject to his satisfaction, qua which, he recorded satisfaction note on the job card itself. For all the five times, car was checked to the satisfaction of the complainant and even each and every email of the complainant was duly attended. After 9.8.2014 till the filing of the written statement, the car was never brought back by the complainant to the workshop of OP1. In view of all this, it is claimed that the complainant has not approached this Forum with clean hands. By claiming that there is no deficiency in service on the part of OP1, prayer made for dismissal of complaint.

3.                In separate written statemnt filed by OP2, it is pleaded interalia as if OP2 has no privity of contract with the complainant and as such, complainant                cannot claim any relief under the warranty agreement against OP2. Besides, it is claimed that no notice/letter/legal notice/intimation was ever sent to OP2 regarding the alleged problem in the vehicle in queston and as such, complainant has no cause of action against OP2. Whole vehicle cannot be replaced as per warranty agreement because of specific prohibition under the agreement. Complainant is always       welcome to visit the premises of the OP1 and get the repair work done during the warranty period, free of cost. After inquiry, it was found that problem of complainant was attended under warranty and damages were rectified to the satisfaction of the complainant, due to which, he recorded satisfaction note on the concerned job card. It is claimed that as per information gathered by OP2, there was some air filter cleaning problem in the air conditioner, which was rectified on 5.7.2014. Complainant signed the satisfactory note and as such, no problem was left in the A.C.Vehicle of the complainant is running smoothly and that is why he has not brought the same for repair thereafter. It is claimed that OP2 has been unnecessarily dragged in the litigation because no allegation levelled against OP2 qua manufacturign defect. Had there been any manufacturing defect, the vehicle would not have run in good condition till date. OP2 has a contract with its sister concern namely General Motors India Pvt.Ltd., for purchase of vehicles manufactured in India. Thereafter, Chevrolet Sales India Pvt. Ltd., used to supply a stock of 20-25 cars to OP1 and receive the sale price for the same at the time of supplying of the cars. After that responsibility remained of OP1 to sell the cars to customers and to receive the sale consideration. Necessary services to be provided by OP1 because the same has agrement with Chevrolet Sales India Pvt. Ltd., under which, their dealings were on Principal to Principal basis. Allegations qua repair of AC of the vehicle levelled against OP1 and as such, prayer made for dismissal of complaint against OP2. Sensory complaint as well as parts designated as requiring periodic replacement not covered by the warranty. Though OP1 called upon the complainant many times, but despite that present complaint has been filed, even though the car running in good condition. It is claimed that complainant is not a consumer of OP2 and no deficiency in service is there on the part of OP2.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C4 thereafter, his counsel closed the evidence.

5.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.R1/A of Sh.Gagan Brar, Cluster Head of M/s Padam Cars(P)Ltd along with documents Ex.R1/1 to Ex.R1/10 and then closed the evidence.

6.                Counsel for OP2 tendered in evidence affidavit Ex.RA2 of Sh.Sanmukh Singh Khaira, Zonal Manager of OP2 along with documents Ex.R2/1 to Ex.R2/4 and then closed the evidence.

7.                Written arguments in this case submitted by OP1 and OP2, but not by the complainant. Oral arguments of counsel for the parties even heard and records gone through carefully.

8.                It is admitted during the course of arguments by counsel for the complainant that dispute only remains qua the compensation to be awarded on account of mental harassment. It is vehemently contended that A.C of the car is now working, but repair of the samae took place after two years and as such, complainant suffered lot of mental tension and harasment. However, Sh.Kamal Kumar, Advocate representing OP2 has vehemently contended that defects were rectified as and when pointed out and as such, there is no deficiency in service on the part of OP2, particularly when OP2 is not the dealer, who sold the car in question to the complainant. Rather, it is contended that car in question purchased by the complainant from OP1 and as such, OP1 had to provide the services. Sh.Rajeev Abhi, Advocate representing OP1 has vehemently contended that due services were provided as and when the car brougth for rectifying the defects and even the emails were duly responded and as such, there is no deficiency in service on the part of OP1, due to which, complainant not entitled to claim any compensation.

9.                After going through para no.7 of affidavit Ex.CA of complainant, it is made out that the complainant  himself has admitted as if OP1 had repaired the car during the pendency of the complaint. However, it is claimed through this para itself that the said defects removed after great persuasion and submission of number of requests and as such, in view of this, it is contended that the complainant suffered lot of mental tension and harassment. In view of these allegations levelled in para no.7 of affidavit Ex.CA, it is obvious that the complainant himself was aware as if the services were provided by OP1 and he succeeded in rectifying the pointed out defects, may be during the pendency of the complaint. As liability of OP1 was to repair the car by removing the defects and as such, certainly OP2, the whole sale dealer, has been unnecessarily impleaded in this complaint.

10.              Invoice of the car Ex.C1 along with email letters and other letters Ex.C2 and Ex.C3 are produced on record to establish that complaints regarding improper working of AC of the car were lodged many times, but those complaints through email were attended and replied by the Ops. So, certainly submission advanced by counsel for OP1 has force that due services by way of attending the email complaints were used to be provided by OP1.

11.              Ex.R1/1 is history of job card showing that car was brought to the premises of OP1 on five occassions i.e. 9.8.2014, 3.7.2014, 18.6.2014, 3.6.2014 and 24.5.2014. The car was brought for first free service on 9.8.2014 as per contents of Ex.R1/1, but it was brought for running repair on 3.7.2014, 18.7.2014, 3.6.2014 and 25.5.2014. A.C.cooling was less and that is why, replacement of air conditioner(A/C) w Refrigerant pressure sensor took place on 3.7.2014 without charging anything from the complainant is a fact borne from item No.2 of Ex.R1/1. Further, items of Ex.R1/1 establishes that for checking of problem of A.C Trip sometime, on 18.6.2014, replacement of AC heater and air conditioning evaporator module took place               by charging just Rs.107/- from the complainant. On 3.6.2014, mal-                          functioning of AC Trip some time was reported and for rectifying the same, air cleaner assembly was replaced without charging anything from the complainant on 3.6.2014. Air cooling was low, when the car was brought on 24.5.2014 and thereafter, adjustment of FIN censor took place without charging anything from the complainant on 24.5.2014. All these entries contained in Ex.R1/1 leads to the inference that complaints of less ac cooling or of improper functioning of AC were duly attended by OP1 without charging anything from the complainant. Even repair order Ex.R1/2 dated 18.4.2014 shows that for rectifying the problem in AC cooling, the checking of AC cooling was done, but warranty invoice Ex.R1/3 dated 20.6.2014 shows that repair for A/C Gas Module ASM HTR AC EVPR BL, heater and air conditioner Evapor was done on 20.6.2014 and complainant recorded endorsement of satisfactory services being provided to him. Same endorsement also recorded on invoices Ex.R1/4, Ex.R1/5 and Ex.R1/7. Other documents produced by OP1 on record shows that the complaints of the complainant were duly responded and as per need, due rectification was done and as such, certainly it is not a case of altogether deficiency in service, even though repair could not be carried out in one go.

12.              Replacement of the car in question or refund of price could not be ordered because the manufacturing defect in the car not pointed out. Defects in the AC used to be rectified properly and complainant has been using the car extensively and as such in view of the law laid down in case Jai Malhotra vs. M/s.Maruti Udyog Ltd and another-III(2002)CPJ-95(N.C.), request for replacement of the car with new one could not be accepted, particularly when evidence of expert for pointed out manufacturing defects even not brought on record. Rather, admission of the complanant itself establishes that the defects have been removed during the pendency of the complaint.

13.              As per law laid down in case Baldev Raj and sons vs. Ram Kumar and another-II(2013)CPJ-42A(CN)(Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla), when the service centre/dealer had replaced the shocker and carried out repairs without charging anything during pendency of complaint, then District Forum must not award compensation and cost. Ratio of this case is not fully applicable to the facts of the present case. When the defect of part could be repaired by fixing new spare parts, then the same is not a manufacturing defect as per law laid down in case Civily Kallarakkal vs. Dealer, Divya Automobiles and others-III(2002)CPJ-14(Kerala State Consumer Disputes Redressal Commission, Thiruvanathapuram). In this case also as the defects have been removed in the AC and as such, manufacturing defect certainly is not there. However, complainant had to visit time and again for getting the AC repaired and as such, in view of the fact that services were provided without charging anything, it is obvious that complainant suffered mental tension and harassment by visiting OP1 at least on five occassions. However, defects have been removed during pendency of the complaint and as such, by keeping in view the above cited legal position as well as the fact that the services have been provided to the complainant on each and every occasion without charging anything, it is fit and appropriate to award minor compensation for mental harassment only. The defects were removed during pendency of complaint itself suggest that the same was      not rectified before filing the complaint, even though the same could have been rectified.

14.              Complaint against OP2 is not maintainable because contract between OP2 and OP1 is on dealer to dealer basis as provided by agreement Ex.OP2/4.

15.              Therefore, as a sequel of the above discussion, complaint allowed against OP1 only to the extent that complainant entitled for compensation for mental harassment and agony of amount of Rs.3000/-(Rupees Three thousand only) and even litigation expenses of Rs.2000/-(Rupees Two thousand only). Payment of these amounts be made by OP1 within 40 days from the date of receipt of copy of this order. However, complaint against OP2 is dismissed. Copies of order be supplied to the parties free of costs as per rules.

16.              File be indexed and consigned to record room.

 

 

          (Vinod Bala)                                     (G.K. Dhir)

                             Member                                              President                         

Announced in Open Forum

Dated:27.09.2016

Gobind Sharma.