Haryana

Ambala

CC/406/2016

Karam Shah - Complainant(s)

Versus

Pasco Motors - Opp.Party(s)

S.P. Singh

09 Apr 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                                      Complaint case no.        : 406 of 2016

                                                          Date of Institution         : 04.11.2016

                                                          Date of decision    :  09.04.2018

 

 

Karam Shah, S/o Sh. Chaman Shah, r/o V.P.O. Laha, Tehsil, Naraingarh, District Ambala

……. Complainant.

 

1.  PASCO Motors, N.H.73, Ambala Jagadhri Road, Near Gurudwar, Dosarka, District Ambala, through its authorized signatory.

2.  M/s Metro Motors Pvt Ltd. 10 Mile, G.T.Road, Mohra, District Ambala 

3.  TATA Motors  Pvt Ltd., 20^th Floor Tower-2, One India Bulls Center, 841, Senopati Bagpat Marg, Mumbai.

4.  HDFC Bank Ltd, Shingar, Palace Complex, Nicholson Road, Ambala Cantt through its Branch Manager.

 

 ….…. Opposite Parties.

 

Before:        Sh. D.N.Arora, President.

                   Ms. Anamika Gutpa, Member.                  

         

 

Present:       Sh. Nirbeshwar Chauhan,  counsel for complainant.

Sh. P.K.Goel, counsel for OP No.1.

Sh. S.R.Bansal, counsel for OP No.2 & 3.

Sh. Sandeep Chauhan , counsel for OP No.4.

                  

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had purchased Tata ACE E-III Dicor, Model No..2014, Engine No.8LNACRAIL50KVYSB4569, Chasis No.MAT445452EZK49601, bearing registration no.HR 37-D-8263 from OP No.1 vide invoice dated 21.11.2014 for an amount of Rs. 3,37,299/-  and the physical delivery of the vehicle was given to the complainant on 31.12.2014 as per the scheme of the company. The vehicle stated above gave its proper and effective service upto 20^th March 2015 and thereafter, started giving Engine, Pump Problems due to which the complainant was not availing its proper services and accordingly, the complainant reported the matter to OP no.1 about the problems. On the advised of the OP No.1 the complainant along with his vehicle visited the OP No.2 on 2.04.2015 and their mechanic checked up the vehicle and done first routine service of the same. He further stated that in the month of Aug.2015 the vehicle started giving same trouble, he again visited the OP no.2 on 27.08.2015 where, the OP No.2 removed, dismantle/assembled  and installed the engine and special charges for set up of engine were charged from him as per service history. After doing the complete engine work of the vehicle, the OP No.2 assured the complainant that there will be no problem in the vehicle in future but the problems of the vehicle remain unchanged and the vehicle was giving same trouble in its functioning. The complainant has been requesting the OP Nos. 1 & 2 time and again but the OPs were putting off the complainant  with one reason or  the other and  on 02.12.2015 the OP No.2 again called the vehicle of the complainant and found the same trouble then re-newed cylinder head cover oil seal and the complainant paid a proper charges of the company. On 16.09.2016, the complainant again visited the OP No.2 along with vehicle for its checking. The OP No.2 retained the vehicle of the complainant and gave the delivery after three days and charged Rs. 12,000/-. The complainant on 19.09.2016 when was coming to his house, the vehicle  suddenly stopped and could not reach up to the house, then the complainant  at his own expenses  took the vehicle from that place to the OP No.2 and the vehicle in question is still standing  in the premises of the OP No.2 since 24.09.2016. The vehicle of the complainant was finance with HDFC Bank Ltd and due to the fault of the Ops the complainant could not re-new the road permit, Insurance policy and could not pay the road tax of his vehicle. And besides this due to non plying the vehicle, the complainant could not pay the monthly installments of the bank from where the vehicle was finance. A legal notice served upon to the Ops through registered post on dated 13.10.2016. Hence,  the present complaint.

2.                   Upon notice, OP No.1  has appeared and filed written statement and stated that there is no defect in vehicle. The complainant never came to OP No. 1 for checking of vehicle as alleged in the complaint except  once as mentioned in the complaint and that too on 2.4.2015 for the first service of his vehicle  and there  he did not give any cause of complaint and made a routine  first service and also took his vehicle  in fit condition after satisfying with the job and service and signing  in this regard. No such complaints  were ever made to Op and complainant never came to OP No. 1. It is wrong that first  service  was done by OP No.2 after referring of complainant  to  it by OP No.1 as alleged. The complainant if had gone directly to OP No.2 then OP No.1  has no knowledge of same and there is no deficiency on the part of OP No.1.

Upon notice, OP No.2  has appeared and filed written statement and stated that the  vehicle was checked and properly attended without any charges from the complainant, although  kerosene oil was found in pump damaging fuel injunction pump(FIP), although  special  approval  was taken from Tata Motors Ltd. For repair and the same was got done without  any charges from the customer  and again the customer reported the vehicle on 24.08.2016 which was got  checked and estimate of Rs. 12000/- was given for repair  of FIP, but till then the customer  is not coming to the workshop of the OP No.2. He further stated that the vehicle is out of warranty and so much so, he has not availed proper and free services well in time as per schedule.  

Upon notice, OP No.3 has appeared and filed written statement and stated that as per clause no.1 of terms & conditions of warranty “This warranty shall be for 1 year from the date of sale of the vehicle or 36000 Kms of its  running, whichever occurs earlier”. In the present case, the original manufacturer’s warranty  in respect of the vehicle  in question had already been expired. The vehicle in question has covered 17144 kilometers as on 28.1.2016 which would amply prove that vehicle is roadworthy  and does not suffer from any defect much less manufacturing defect.  He further stated that it is pertinent to mention that the entire repair jobs were carried out under warranty and the complainant   had only paid for consumables which are not covered under the warranty.

Upon notice, OP No.4 has appeared and filed written statement and stated that the complaint does  not related to the OP No.4 as the OP No.4 is just a financer of  the vehicle of the complainant and  he was made installments for repayment of the loan amount and the complainant is bound to pay the installments regularly to the OP No.4. The defect in the vehicle is not an excuse in delaying the repayment of installments. So, there is no deficiency in service on the part of OP No.1 to 4 and prayed for dismissal of the present complaint.

3                      To prove his version complainant tendered his affidavit as Annexure C/A along with documents as annexure C-1 and C-14 and close his evidence. On the other hand, Counsel for the OP No.1 tendered affidavit as Annexure R/A along with documents as Annexure R-1 to R5 and close his evidence. Counsel for the OP Nos. 2 & 3 tendered affidavit as Annexure R-X & R-Y alongwith documents as Annexure R-1 to R-11 and closed their evidence. Counsel for OPNo.4 tendered affidavit as Annexure R-A along with documents as Annexure R-12 to R-15 and closed his evidence.

4.                     We have heard both the counsels of the parties and carefully gone through the case file.

5.                     It is not disputed that the complainant had purchased vehicle mentioned in the complaint from OP No.1 on 31.12.2014 vide bill Annexure C-4   for amounting Rs. 3,37,299/-.  As per service history as Annexure C-5 on 27.08.2015 the vehicle was brought to the service centre with problem such as starting problem. Therefore, the engine of the vehicle was removed and dismantled/assembled at Service Centre. Thereafter the vehicle handed over the complainant in a working condition. Further perusal of the Annexure C-5 reveals that the vehicle was again brought to the service centre on 02.12.2015 with starting  trouble besides leaking of  engine oil and OP No. 2  i.e. service centre has renewed the cylinder head with cover oil seal and the complainant took the vehicle in working condition after executing the satisfactory note Annexure R-4. The vehicle was repaired free of cost being in warranty period. After that the vehicle was again to the service centre on 28.01.2016 with same problem such as starting along with new problems in electronic instruments/ gauges defective. The vehicle was repaired on site by changing injection pump, remove and install, injectors remove and install,   checking engine performance by diagnostic kit and special charges for fib / injector.

6.                     From the perusal of the job sheet dated 04.09.2016 as well as 16.09.2016 same problem has been occurred i.e. Starting problem and complainant approached to the OP for rectification of the above said problems mentioned above but they have demanding Rs. 12,000/- for repairing charges but the complainant refused to the same and vehicle in question is lying with the OP no.2.

In the present case it is not disputed that the vehicle went out of order numbers of times and the complainant had to visit the service centre time and again resulting into wasting of precise time, mental agony and harassment to the complainant besides financial loss which questioning on the remarkable features of the vehicle as claimed by the manufacturer/ service centre.

Perusal of the Annexure C-10(Job Card dated 19.09.2016)  reveals that the complainant had visited the service centre lastly as the vehicle was not working properly after getting the engine of the same dismantled by the service centre on 27.08.2015 vide Annexure C-5. The complainant has specifically come with the plea that the problem in the engine occurred within a short span of purchasing of vehicle but the service centre could not remove the grievance till today as the vehicle was not giving acceptable performance, therefore, he was left with no option but to leave the vehicle at service centre in non working order since 24.09.2016. This plea is very well supported by the job sheets Annexure C-5 to Annexure C-10. Perusal of the Annexure C-5 to C-9 reveals that the service centre had repaired the vehicle free of cost but vide Annexure C-10 the service centre had demanded amount of Rs. 12,000/- for the repair work done to put the engine alongwith its component in order and this fact is enough to prove on the file that the engine was giving problem from the first visit regarding problem in engine on 27.08.2015 within warranty period. Undisputedly, the engine of the vehicle was dismantled and repaired but it must be borne in mind that this must have caused harassment, mental agony, anger, anguish, frustration and sadness on the part of the person, who had bought  a very new car.  It is pertinent to mention here that engine  and important parts and without the working of these parts the vehicle cannot run and that parts were repaired  within a period of shorter period of its purchase  doubted the remarkable features in the vehicle which the service centre/ manufacturer are claimed in their reply and they are  duty bound to provide after sale service but in the present case it appears that the Ops have violated the provisions of Consumer Protection Act by not providing service after selling the vehicle as it went out of order number of times firstly within warranty period. It was the duty of the service centre to get the vehicle trouble free after repairs but in the present case it appears that the vehicle continued to give problems which show that the vehicle was of sub-standard quality and has failed to fulfill the purpose for which the complainant had purchased the same. On this point reliance can be taken from case law titled as III (2014) CPJ 130 (NC)  Harpreet Motors Private Limited, National Insurance Co. Limited V. Dr.Prithipal Singh Bhandari & Ors.  DOD 26.05.2014 – “Wherein it has been held by Hon’ble national Commission that Once the vehicle had been sent to petitioner for repairs, it was their duty to carry out all necessary repairs in one go and give vehicle back in perfect running condition-Vehicle continued to give problems even after delivery of vehicle had been given to complainant after charging sum of Rs.2,78,500/-”.   It is pertinent to mention here that the service centre and manufacturer are not suppose to earn profit from the customers and they cannot be permitted to defeat the benevolent provisions of the Consumer Protection Act because after sale of the product it remains their duty to redress the grievance of the customer but in the present case the appearing Ops have failed to do so. On this point reliance can be given from case law titled as Nishad Nagesh Kulkarni Versus Sony India Pvt. Ltd. & ors. I (2016)  CPJ 584 (NC).

Although counsel for the OP Nos. 2 & 3 has argued that we have checked the vehicle and found cylinder head 2^nd No. Piston Exhaust value broken   and we have replaced defective parts under  warranty. We have charged special charges Rs. 1490/- from TML not form customer. We have not charged for Cylinder Head Cover Oil Seal from customer and it has been further argued that on 28.01.2016 the injection pump was repaired on paid basis because kerosene found in Pump. We had taken special approval from TML for repair   of fuel pump and we have not any charge from customer. It is further argued that the complainant reported to their workshop on 24.8.2016 not on 16.09.2016 for routine check up and staring problem. They have checked the vehicle and give estimate of Rs.12000/- for FIP repair but customer not reported to our workshop till date for which we had sent a Regd. Intimation letter on 21.09.2016. The counsel for the OP Nos. 2 & 3 argued that the complainant was very much satisfied with the service provided by them and in token thereof he had given satisfactory note Annexure R-2 & R-4 and lastly Annexure R-6 date 08.02.2016 and the complainant also endorsed that if diesel found adulterated in his vehicle then the workshop will not be responsible for any warranty. It has been further argued that there is no expert evidence on the case to show that there was manufacturing defect in the vehicle and no compliance of Section 13 (1) (c) of Consumer Protection Act has been made, therefore, it cannot be said the vehicle was having manufacturing defect. Moreover, Section 13 (1) (c) is wee bit unfavourable to the consumers and the consumers cannot be equated with manufacturer/service centre. Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like manufacturer/service centre, to get the expert appointed with the permission of this Forum to prove that the car does not suffer from any manufacturing defect. In the present the Ops have even not bothered to produce their own Experts who are always available at their back before this Forum to prove that the car was not suffering from any defect. It was open for the OPs to move an application for getting the vehicle examined through expert but it has not been done so despite the fact that the vehicle was lying with the service centre. Hon’ble National Commission in case titled as Scooters India Limited & Anr. Vs. Madhabananda Mohanty & Ors II (2005) CPJ 136 (NC)  has held that it is not always necessary for the consumer to give expert testimony though if he does so, it will add to the weight of the evidence. However, it must be shown that the use of the vehicle has been substantially impaired on account of the defect. In view of the law laid down in the aforesaid cases, it is not necessary to file the expert evidence in order to come to the conclusion whether the vehicle in question having the manufacturing defect. As per service record placed on the file by the OPs it is clear that there were many defects in the vehicle and the same were removed/rectified as and when the complainant brought the car to the OP No.1 and the parts thereof were also replaced. Though the Op Nos.2 & 3 have sent the notice to the complainant to collect the vehicle but when the complainant has lost faith in the product of the OPs then this Forum also cannot even force to the complainant to take the vehicle and even the Ops also cannot take the benefit of the same because there is no surety that the same would not went out of order again.  We should not forget that the complainant had to visit the service station time and again for no fault of his which stands adequately proved. 

7.                     During the course of the arguments counsel for OP Nos. 2 & 3 i.e. Service centre and Manufacturer made the following statement that “our workshop shall repair the vehicle as per estimate made in the presence of complainant and will deposit entire repair cost and labour charge s with the company. We will deliver the vehicle within one month because vehicle in lying in standing since 24.08.2016 a letter dated 21.09.2016 which is Annexure R-9 but the complainant did not make any offer in this regard”. Though the OP Nos. 2 & 3 had claimed that the vehicle is out of warranty and they are ready to rectify the same after paying the charges by the complainant but keeping in view above facts show that the vehicle was having inherent defect in the same therefore the complainant had to approach the service center time and again. Hence, this plea is rejected because firstly the engine was repaired within warranty period and it continued started problems, therefore, this Forum has a Firm view that the warranty of the vehicle was not void because every time the vehicle created same problems. So far regard claim regarding against OP No.4 i.e. HDFC Bank from where the complainant had taken the loan but due to fault of the OP Nos. 2 & 3 the complainant could not re-new the road permit, Insurance policy etc. The complainant further stated that he could not pay  the monthly  installments to the finance company due to non plying the vehicle in question but perusal of the relief clause reveals that the complainant had not claimed any relief against the OP No.4, therefore the complaint against  OP No.4 stands dismissed. The OP No.1 taken the plea that it has sold the vehicle to the complainant as it is after receiving the same from manufacturer i.e. OP No.3, therefore, no deficiency in service can be attributed to it. Undisputedly, the OP No.1 has played a role to deliver the vehicle to the complainant but when we have held that there is manufacturing defect in the vehicle, therefore, Op No.1 cannot be held liable for any deficiency in service. Accordingly, complaint against Op No.1 also stands dismissed.

8.                     Keeping in view the above discussion we are of the view that the complainant has suffered a lot on account of non-performance of the vehicle as per his expectations. Therefore, accordingly, the present complaint is allowed and the Op Nos. 2 and 3, being service centre and manufacturer of the vehicle, are directed as under:

1. To replace the vehicle with new one of the same model on same price subject to completing formalities qua transferring of the vehicle either in the name of OP Nos. 2 & 3 or in the name of representative of  their choice without any parking charges within a period of 30 days. It is also made clear that if OP  Nos. 2 & 3 are not in position to deliver the vehicle then they will pay the cost of vehicle i.e amount Rs.3,37,299/- vide  invoice dated 21.11.2014.
2. To pay a sum of Rs. 10,000/- on account of mental agony, harassment, sufferings and cost of litigation.

 

Compliance of this order be made within a period of one month and if the Op Nos.2 & 3 failed to replace the vehicle as per above directions then the cost of vehicle would carry interest @ 9 % per annum for defaulted period. Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

Announced on : 09.04.2018

 

                            

 

                             (ANAMIKA GUPTA)             (D.N. ARORA)

                             Member                             President