DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 30th day of April 2019
Present : Smt.Shiny.P.R. President
: Sri.V.P.Anantha Narayanan, Member Date of filing: 22/06/2016
CC/88/2016
Sujith.T.P.
Sukanya, - Complainant
Nila Nagar,
Yakkara, Palakkad – 678 707
(By Adv. Girish K Nochulli)
Vs
1. P.V.S.Automotive Company (P) Ltd.
(Rep.by its Managing Director
Mr.P.V.Chandran),
Near Rotary Club, Kadamkode,
Chandranagar,
Palakkad – 678 007 - Opposite parties
(By Adv.M.Narayanankutty)
2. FORD India (P) Ltd.
(Rep.by its Managing Director,
Mr.Nigel Charles Harris),
S.P.Koil (PO), Chengalpattu,
Chennai – 603 204
(By Adv.Anitha.T.S.)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Brief fact of the complaint.
This complaint is filed alleging deficiency of service of complainant’s vehicle-Ford-Eco-Sport with registration number-KL09-AG-25-purchased from the 1st opposite party and manufactured by the 2nd opposite party. The complainant had been experiencing abnormal sound from engine of his vehicle (Ford-Eco-Sport) with engine number DG-47628 and he had taken the vehicle to the 1st opposite party who had informed him that there is some complaint with the engine and since the vehicle was within the warranty period they promised to get it replaced. Accordingly complainant gave his vehicle for service on 13/05/2016 under job card number 352 to the 1st opposite party who assured the complainant of the delivery of the vehicle within 5 days. According to the complainant, his vehicle was made ready only on 15/06/2016 and the opposite party had informed him that two parts of the engine namely pulley tensioner, and pulley idler also have to be replaced. They are not covered by warranty and complainant has to pay for that. According to the complainant the vehicle has just run 76857 kilo meters when it was given for service and he was regularly servicing the vehicle as per the service schedule of the 2nd opposite party and he was never told about engine problem or other problems till complainant reported this problem to the 2nd opposite party. Complainant also pleads that he has understood from his friends in the automobile field that the pulley tensioner and pulley idler would have got damaged due to the manufacturing defect of the engine; since the service team identified engine problems they should replace the pulley tensioner and pulley idler also under warranty which will take only two days for the authorised and trained service technicians. Then complainant intimated the 1st opposite party over phone and the 2nd opposite party by email to get the pulley tensioner and pulley idler replaced under warranty; he also requested the opposite parties to reimburse him “rent a car charges” paid by him due to the inordinate delay in getting his vehicle serviced beyond the promised delivery period. But the 1st opposite party insisted that the charges for the pulley tensioner and pulley idler should be paid by the complainant before taking delivery of the vehicle and charges paid by the complainant for “rent a car cannot be reimbursed as there is no such practice for the opposite parties”. Accordingly complainant paid an amount of Rs.5,754/- and took delivery of the vehicle to avoid further loss on account of payment to rent a car. Complainant further pleads that the manufacturing defect of the vehicle was detected during the period of school vacation for complainant’s children which badly affected their movements even though complainant had taken “rent a car” and therefore the loss suffered by the complainant was not just the amount paid to the 1st opposite party and the amount of rent paid to rent a car @ Rs.1,800/- per day for 32 days which amounted to Rs.57,600/- but it was much higher and cannot be calculated in terms of money. Complainant prays to this Hon’ble Forum to direct the opposite parties to refund to the complainant Rs.5,754/- which is the amount collected from the complainant for replacing the pulley tensioner and pulley idler as per receipt number 512 dated.15/06/2016, to reimburse to the complainant the amount paid by the complainant to rent a car at Rs.1,800/- per day for 32 days amounting to Rs.57,600/- and to pay to the complainant a compensation of Rs.50,000/- towards mental agony suffered by him.
The complaint was admitted and notices were sent to both the opposite parties to enter their appearance and file their versions. In their version filed by the 1st opposite party, they contend that the complaint is not maintainable in law or on facts and hence it is liable to be dismissed; except those expressly admitted rest of the allegations averments and accusations put forth in the complaint are expressly denied by this opposite party. The allegation that the complainant was experiencing high engine oil consumption and abnormal sound from the engine of the vehicle in question is totally false and hence they are denied by this opposite party. This opposite party also contend that when the complainant’s vehicle was brought to the service station on 13/05/2016 with complaints, the service personnel of this opposite party tested and checked the vehicle and found that there was no sufficient engine oil as prescribed by the manufacturer – (Ford India Pvt, Ltd) as a result of which the performance of the engine of the vehicle got deteriorated and it is only due to the sheer carelessness and negligence of the complainant the engine of this vehicle was damaged. Accordingly, this complaint was registered with the 2nd opposite party and as per the direction of the 1st opposite party carried out necessary repair work of the engine under warranty which was immediately informed to the complainant. The 1st opposite party also contend that they have replaced 23 parts under warranty but excluding pulley tensioner, and pulley idler, the 23 parts were replaced as per the warranty conditions of the 2nd opposite party free of cost. The 1st opposite party also argues that the complainant took delivery of the vehicle on 15/06/2016 and he was fully satisfied with the performance of the vehicle and work done by the opposite party. According to this opposite party they have never given any assurance to the complainant that the vehicle will be repaired and delivered to the complainant within five days as alleged in the complaint; but the complainant was clearly informed that it is a major work which requires sanction from the 2nd opposite party manufacturer and it is a time consuming work. This opposite party further denies the allegation that pulley tensioner and pulley assy idler got damaged due to the manufacturing defect of the engine as totally false. According to this opposite party it is only due to the reason that the said vehicle has run 76857 kilo meters without sufficient oil being filled in by the complainant and not due to any other reason and there is no warranty for pulley tensioner and pulley idler and hence only they were billed. This opposite party also denied the claim of the complainant that he had to hire a vehicle for 32 days @ of Rs.1,800/- per day and hence Rs.57,600/- has to be expended by him and the receipt produced for the purpose of the claim is a fabricated one. The 1st opposite party also contend that the damage to the engine of the subject vehicle was caused only due to the lapses and carelessness on the part of the complainant for which this opposite party cannot be held liable. Hence this opposite party prays to the Hon’ble Forum to accept their contentions and dismiss the complaint with cost.
In their version the 2nd opposite party contend that the complainant has failed to show any defect or deficiency in service or unfair trade practice under sections 2f, 2g and 2r of the Consumer Protection Act 1986. This complaint being without any cause of action is not maintainable and therefore it is liable to be dismissed. The allegations made by the complainant are false and frivolous and hence complaint should be dismissed. According to this opposite party the main grievance of the complainant is regarding the amount charged to him for the pulley tensioner and pulley idler and these two parts of the engine are not covered under the warranty policy and hence cost of their repair and replacement should be borne by the complainant. This opposite party replaced all other parts of the engine which were covered under warranty without any cost to the complainant. But pulley tensioner and pulley idler are billable parts not covered under the warranty policy. The complainant was asked to pay a sum of Rs.5,754/- (Rupees five thousand seven hundred and fifty four only). This opposite party further contend that the question of manufacturing defect does not arise in the present case as the subject car had extensively travelled for over 76000 kilo meters in a span of over two years and the complainant had never raised such an issue prior to the filing of the present complaint and the subject vehicle was extensively used and was running in a pristine condition prior to the alleged defect. According to this opposite party the averments with respect to manufacturing defect are clearly fragments of imagination and bold aversions made by the complainant. The complainant has not relied upon any evidence such as a Government approved automobile engineers report in order to ascertain whether the subject car suffered from a manufacturing defect. The allegation of manufacturing defect is required to be proved beyond doubt by credible documentary evidence; Hon’ble Supreme Court and the National Commission in a series of judgements held that it was imperative that the defects as alleged in the complaint are thoroughly referred to and inspected by an automobile expert also where the subject matter of a complaint refers to technicalities such as allegation towards the manufacturing defect in the car and it is necessary to obtain a technical report and in its absence no relief shall be granted. Further as per section 13(1)(c) of the Consumer Protection Act 1986 it is mandatory to appoint an appropriate laboratory or an expert who would analyze and test the goods to determine whether they are suffering from any defect. According to this opposite party, the complainant has not conducted any such procedure and in view of that the present complaint should be dismissed. This opposite party further contends that the complainant has not suffered any damage on account of the negligence of the opposite parties and hence as per Section 14(d) of the Act he is not entitled to any damages claimed. The claim for reimbursement and compensation made by the complainant is also exorbitant, excessive and exaggerated. While the complainant has sought reimbursement for the charges paid towards rental of another car and compensation for mental agony, he has failed to disclose why the delay was caused in repairing the vehicle; the complainant has failed to intimate this Forum that delay in the repair work of the subject car occurred only due to complainant’s own fault because no approval to replace the pulley tensioner and pulley idler was ever given to the 1st opposite party until 15/06/2016 and on approval the subject car was fully repaired to the complainant’s satisfaction. All other parts being covered under the warranty policy were repaired or replaced without any cost to the complainant and hence this opposite party fully adhered to their obligation under the warranty policy. The complainant is not entitled to any of the claimed damages as he has not suffered any injury on account of the negligence of the opposite parties rather he suffered injury on account of his own negligence. According to this opposite party there is no privity of contract between the complainant and this opposite party and therefore the present complaint is bad for non jointer of parties because the complainant has unnecessarily dragged the 2nd opposite party in the array of opposite parties even though no cause of action can be made against the 2nd opposite party. The 2nd opposite party also states that the two parts namely pulley tensioner and pulley idler are not parts covered under the warranty policy provided by this opposite party and hence costs for its repair and replacement have to be borne by the complainant. This opposite party is only obligated to ensure that the cars manufactured by them are state of the art and safe for driving but sale of the car and its correct services are undertaken by the dealers (1st opposite party in this case) and this opposite party has no role or liability in respect of such services; this opposite party has the only obligation relating to the warranty conditions of the cars manufactured by it which has been duly met in this case as contended by this opposite party. According to this opposite party complainant has not followed the mandate under section 13(1)(c) of the Consumer Protection Act 1986 but this opposite party has already fulfilled their obligations under the warranty policy and repaired or replaced all parts in the engine which were covered under the policy free of cost and complainant was duly informed on numerous occasions by the opposite parties that pulley tensioner and pulley idler parts are not covered and hence cost of their repair/replacement should be borne by the complainant himself. This opposite party further contends that since pulley tensioner and pulley idler were not covered under the warranty policy, approval of the complainant was required to repair or replace the same on a paid basis and any delay in repairing or replacing the subject car parts was due to the complainant not giving approval to the 1st opposite party or to the 2nd opposite party for the commencement of the repairing of the parts not covered under warranty. According to this opposite party, any delay in repairing the subject car was a result of complainant’s own act because the complainant has admitted in his complaint that the 1st opposite party asked him to remit the charges for the parts not covered under the warranty policy before the delivery of the subject car is made to the complainant but the latter ignored the same; also Rs.5,754/- (Rupees five thousand seven hundred and fifty four only) has been remitted to the 1st opposite party and not to the 2nd opposite party, therefore no question of reimbursement can be made against this opposite party. This opposite party also denies that manufacturing defect of the subject vehicle was detected and it affected its mobility because the question of any manufacturing defect in the subject car can only be answered by an expert’s advice or report. The claim for damages, compensation and reimbursement made by the complainant is exorbitant, exaggerated and not based on sound principles. Hence this opposite party pray to this Hon’ble Forum to dismiss the complaint according to section 26 of the Consumer Protection Act 1986 and award exemplary cost in favour of the opposite parties against the complainant.
Complainant filed chief affidavit and opposite parties also filed their affidavits. Complainant was directed to file interrogatories and 2nd opposite party was sent questionnaire for answers. Exts.A1 to A8 were marked from the side of the complainant, Ext.A3, A4 &.A7 in series which were marked with objection. Exts.B1 to B4 were marked from the side of the opposite parties except Ext. B1 which was marked with objection. The 1st opposite party was cross examined as DW1.
The following issues arise in this case for consideration by this Forum.
- Whether the opposite parties have committed any deficiency in service and unfair trade practice?
- If so, the relief and cost available for the complainant?
Issues 1 & 2 in detail
To support his pleas Exts.A1 to A8 were marked from the side of the complainant, Exts.A3, A4 & A7 being marked in series with objection. From the side of the opposite parties to support their contentions Exts.B1 to B4 were marked, Ext.B1 being marked with objection. Ext.A1 is a vehicle report card which shows name of the customer complainant, model of the vehicle, kilometers run as on 13/05/2016 as 76857 kilometers, registration number as KL-9-AG-25, date of issue of this report as 13/05/2016. Ext.A2 is interactive reception check sheet which shows complaints and observations. It also shows that engine oil consumption of the disputed vehicle is high and engine mileage as 76857 kilometers, vehicle registration number as KL-9-AG-25, date of the check sheet as 14/05/2016. Ext.A3 which is marked with objection is claim for car rental due to vehicles engine work for one month. Ext.A4 which is also marked with objection is a reply from Ford India dated.13/06/2016. Ext.A5 is an invoice issued by PVS Ford sales and service Chandranagar, Palakkad which discloses customer details, model of the vehicle, cost of parts replaced - cost of pulley assy idler as Rs.2,086.68/- (Rupees two thousand eighty six and sixty eight paisa only) and pulley tensioner as Rs.2,938.57/- (Rupees two thousand nine hundred and thirty eight Rupees and fifty seven paisa only), VAT amount as Rs.728.66/- (Rupees seven hundred and twenty eight and sixty six paisa only), grand total amount as Rs.5,774/- (Rupees five thousand seven hundred and seventy four only). Ext.A6 is cash receipt issued by PVS Automotive company (Pvt, ltd), Chandranagar, Palakkad which shows Rs,5,754/- (Rupees five thousand seven hundred and fifty four only) received from the complainant by way of service charges of his vehicle with registration number as KL-9-AG-25. Ext.A7 series which are marked in series with objection are four numbers of cash receipts photocopies i.e receipt for Rs.14,400/- (Rupees forteen thousand four hundred only) dated.14/05/2016, for Rs.14,400/- (Rupees forteen thousand four hundred only) dated.21/05/2016, for Rs.14,400/- (Rupees forteen thousand four hundred only) dated.28/05/2016 and for Rs.14,400/- (Rupees forteen thousand four hundred only) dated.04.06.2016. Ext.A8 is a photocopy of vehicle repair history report issued to the complainant customer dated.29.10.2016 in respect of his Ecosport vehicle with registration number KL-9-AG-25 which shows details of repair, details of bill, kilometers run as on 13/05/2016 as 76857 kilometers, date of final repair as 13/05/2016, operation details etc... It is also clear from Ext.A8 that at the time of 70000 kilometer service done by the opposite parties “Engine oil warning lamp blink and oil topup damage, Engine oil consumption high inform the customer, CUST drop the vehicle later”. Ext.B1 is a certified copy of board resolution passed by the board of directors of Ford India Pvt, Ltd, at their meeting held on Wednesday February 10, 2016 which gives the Managing Director authorisation to sign legal documents on behalf of the company which is marked with objection. Ext.B2 is vehicle repair history which is marked discloses customer details, vehicle details, repair details, operation description, repairs billable, repairs covered under warranty. This also shows pulley assy idler as a billable item and amount charged is Rs.2,086.68/- (Rupees two thousand eighty six and sixty eight paisa only), pulley tensioner also shown as a billable item and amount charged is Rs.2,938.57/- (Rupees two thousand nine hundred and thirty eight Rupees and fifty seven paisa only), demand details, finis details etc...; in page number 24 of this Ext. it is mentioned that “engine oil consumption high inform the customer CUST drop the vehicle later. Engine oil consumption high and service engine renewed”. Warranty and service guide is marked as Ext,B3 which shows 24 month new vehicle warranty which mentions that “every new Ford vehicle is covered by warranty for 2 years or 100000 kilometers whichever occurs earlier from the vehicle sale date.” Any part repaired or replaced under the warranty will be covered for the balance of the vehicle warranty period. It also mentions under 24 month new vehicle warranty what is not covered i.e this warranty does not cover certain items such as 3rd item, 7th item, 10th item etc…. Ext.B4 is a table of contents standard provisions of DESSA.
We have perused the affidavits and documentary evidences filed by both the complainant and the opposite parties in this case before this Forum and understood that the complaint is with regard to deficiency of service of complainant’s Ford Eco-sports vehicle purchased from the 1st opposite party which was manufactured by 2nd opposite party. The disputed vehicle was given for service on 13/05/2016 with the opposite parties which is proved by Ext.A1, but this vehicle was made ready only on 15/06/2016 after a month which is clear from Ext.A5 which also shows two parts namely pulley assy idler and pulley tensioner were billed at Rs.2,086.68/- (Rupees two thousand eighty six and sixty eight paise only) and Rs.2,938.57/- (Rupees two thousand nine hundred and thirty eight and fifty seven paise only) respectively. We also view that the vehicle had run 76857 kilometers as on the date of giving the same for service on 13/05/2016 which is clear from Exts.A1 & A2. It is also clear from Ext.B2 that between 04/01/2014 (date of 2nd free service) and 13/05/2016 (date of giving the vehicle for repair) i.e within 2 years 5 months the vehicle has been seen as having run around 67000 kilometers which shows abnormal use of the vehicle by the complainant. We also observe that as per Ext.B2 which is vehicle repair history in respect of complainant’s vehicle, “engine oil consumption is high”, pulley assy idler and pully tensionser, the disputed parts of this vehicle are billable parts. We also understand from Ext.B3 that if a vehicle is abnormally used, the vehicle will not be covered by warranty policy of the company. It is also clear from DW1 deposition before this Forum that “k^njyâv Bb F©n³ Hmbn CÃmsX hn HmSn¨m F©n\pw, aäp `mK§Ä¡pw tISp]mSv kw`hn¡pw F¶Xv icnbmWv."" Again we observe that during school vacation this vehicle was being serviced by the opposite parties and as a result of late delivery of the vehicle by around 32 days after service complainant and his children were affected but complainant is not seen produced correct original bills to support his claim of having paid Rs.57,600/- (Rupees fifty seven thousand six hundred only) by way of payment to rent a car at Rs.1,800/- per day for 32 days. It is also admitted by DW1 in his deposition before this Forum that 13/05/2016 \v kÀÆokn\v FSp¯n«v 15/06/2016 \mWv Xncn¨p sImSp¯Xv." Also it is observed that the complainant failed to appear before this Forum for cross examination by the opposite parties; which enabled the opposite parties to adduce adverse evidence against him, further the complainant has also failed to engage a technical expert to examine the defects in his vehicle and prove its manufacturing defect as alleged by him. Also we view that the complainant has failed to produce any solid and clear evidence to prove that the pulley assy idler and pulley tensioner are covered under the warranty policy of the company and also failed to concretely prove that he has incurred Rs.57,600/- (Rupees fifty seven thousand six hundred only) towards making payment to rent a car. At the same time we also observe that there was delay on the part of the 1st opposite party in the delivery of the disputed vehicle to the complainant for more than a month which is also admitted by DW1 in his deposition before this Forum and this must have definitely caused mental agony to the complainant and his family due to their inability to use the disputed car during vacation period of complainants children.
Under the above circumstances we decide to partly allow the complaint.
We order jointly and severally the 1st and 2nd opposite parties to pay Rs.7,000/- (Rupees seven thousand only) by way of compensation for mental agony suffered by the complainant and his family due to their inability to use the disputed car due to the delayed delivery of the car by the opposite parties; they are also ordered jointly and severally to pay Rs.2,000/- (Rupees two thousand only) by way of cost of this proceedings.
This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to 9% interest p.a on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 30th day of April, 2019.
Sd/-
Shiny.P.R
President
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Copy of the vehicle report card dated.13/05/2016 issued by opposite party to the complainant
Showing kilometers run as 76857 kilometers
Ext.A2 - Copy of the interactive reception check sheet dated.14/05/2016 issued by opposite party to the
Complainant showing complaints and observations as “engine oil consumption high and engine
Sound”
Ext.A3 - Copy of the email sent to opposite party by the complainant (Marked with
objection)
Ext.A4 - Copy of email received from 2nd opposite party by the complainant (Marked with
objection)
Ext.A5 - Copy of the invoice number – CRIAG0064600 dated.15/062016 issued by
1st opposite party to the complainant
Ext.A6 - Copy of the cash receipt number – 572 dated.15/06/2016 issued by
1st opposite party to the complainant
Ext.A7 series - Copies of cash receipt for payment made to rent a car (4 No’s.) (Marked with
objection)
Ext.A8 - Copy of Vehicle repair history dated.29/10/2016 of the vehicle Number –KL-9-
AG-25
Exhibits marked on the side of Opposite parties
Ext.B1 - certified copy of board resolution passed by the board of directors of Ford India pvt, Ltd, at
their meeting held on Wednesday February 10, 2016 , giving authorisation to sign legal
documents on behalf of the company (Marked with objection)
Ext.B2 - Copy of vehicle repair history of complainant’s vehicle showing customer details, vehicle
details, repair details etc..
Ext.B3 - Copy of warranty and service guide showing various details of warranty
Ext.B4 - table of contents standard provisions of DESSA showing definitions, responsibility with respect
to companies products, responsibility with respect to service etc…
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite parties
DW1 - Baburaj.R.K
Cost
Rs.2,000/-
