Presents:-
- Sri P.Samantara, President.
- Smt. S. Rath, Member.
Dated, Bolangir the 10th day of July 2015.
C.C.No.10 of 2012.
Umesh Patel, aged about 36 years son of Maganbhai Patel.
Resident of Radharanipada,Bolangir Town, P.O/P.S &
District- Bolangir.
.. .. Complainant.
-Versus-
1.Regional Office (East),Maruti Suzuki India Ltd, L & T.
Chamber, 4th Floor, 16 Camac Street, Kolkota-17.
2.Service Division, Maruti Suzuki India Ltd. Palam, Gurugaon
Road,Gurugaon-122015, Hariyan.
3.Odysey Motors Pvt.Ltd. (Authorised Maruti Dealer)
At-Ainthapali, Sambalpur.
4.Odysey Motors Pvt. Ltd. (Service Center)
At-Madhiapali,Bolangir Town, Bolangir.
5.Ganapati Motors,G.E.Road, Supela,Bhilai- 490023.
.. .. Opp.Parties.
Adv.for the complainant- Sri A.K.Mishra & Associates.
Advocate for O.P.No.3 - Sri S.K.Samal & S.S.Deo.
Advocate for O.Ps 1.2.3 & 4 – None.
Date of filing of the case- 01.03.2012
Date of order -10.07.2015
JUDGMENT.
Sri P.Samantara,President.
In the matter of an application u/s.12 of the C.P.Act,1986, filed by the complainant alleging deficiency in service against the opposite parties.
2. The complaint petition has made an advance in payment of Rs 5,000/- on dt.17.03.2010 in booking of Maruti Suzuki (EECO) and assured of delivery of the vehicle within a week.
3. The petitioner also averred, the cost of the Maruti Suzuki (EECO) vehicle is Rs 3,39,822/-. He incurred loan amounting Rs 2,72,000/- and the balance paid by him, thereby obtained a DD from Bank of India,Bolangir.TheD.D.No.012547 dt.26.03.2010 and paid to the O.P.3 on dt.28.03.2010 against issued with a money receipt No.6826/ dt.26.03.2010. The said D.D.was drawn in favour of “Oddyssey Motors Pvt. Ltd. Sambalpur.
4. The complainant also stated although full amount has been paid in advance but the O.P failed to supply the vehicle within the assured time rather take 3 months time and the vehicle was delivered on dt.02.05.2010 and also taken Rs 11,700/- extra amount, on the pretext of price increase vide receipt No.7285 dt.02.05.2010.
5. It is also averred after running 9148 K.M.,the engine of the car seized that to during warranty period. On dt.10.02.2011,the vehicle has been produced at the work shop of O.P.No.5, who repaired the engine and demanded Rs 22,000/- towards repairing charges. The complainant refused to pay as the warranty period prevailing subsequently in intervention of O.P.3 the charges levied has been waived off but the complainant received the vehicle in payment a sum of Rs 1,875/- to O.P.No.5, which included service charges and parking fee, which needs to be returned.
6. The other allegation is that tyres of the car developed some damage and O.P.No.4 in check up removed in fitting of a new. Within a short period, the same damage crop up in the tyre. The O.P.No.4 opined as the suspension of the car has developed defect, so the damage is to occur. The repairing will be done in payment of cost. For the protracted defects the petitioner is not using the car and lying parked. That the O.Ps not rendering better service, cheating the customer byway of taking excess amount and demanding service charges during warranty period. In view of the facts, the O.Ps may kindly directed to refund the excess amount, received in various occasion repair the vehicle and compensation for the loss and mental tension. Relied on money receipts of odyssey Motors (P) Ltd. Bank Statement, Job Card- Ganapati Motors, Quotation copy, Demand Draft.
7. In put to notice, the O.Ps appeared and filed the written version. The O.P No.1 and 2 stating all the averments made and contentions raised by the complainant are wrong and denied. Further contending the complainant is not a consumer of O.P.No.1 and 2 as there is no transaction of sale and purchase u/s.2(d)(i) of C.P. Act. The complainant has neither paid alleged amount towards booking/price increase of the vehicle. The O.P.1 sells the vehicles to its authorized dealers including O.P.No.3. The complainant has alleged that O.P.No.3 & 4 have charged excess amount ,but there is no allegations has been made against O.P.No.1 and 2.It is no more a complaint as per section 2(1)(c) of the Act. There is no cause of action, no privity of contract as per the dealership agreement, the O.P.No.3 and 4 have no authority to represent O.P.No.1 and 2 . The O.P.No.1 and 2 are not liable for any act of omission of commission of O.P.No.3,4 and 5.The complaint is not maintainable and be dismissed in limine with cost.
8. On the other hand front O.P.No.3 and 4 filed the version contending the present complaint is wholly misconceived, groundless and unsustainable in law. The complainant has not mentioned, what type of vehicle is purchased, its registration No, engine No and chassis No as such the complaint case is not maintainable in the eyes of law. It is admitted the extra amount of Rs 11,700/- is taken at the present market value and advance of Rs 5,000/- is adjusted to the consideration amount of purchase of the said vehicle so, it is not liable to refund by O.P.3 and 4.
9. On the point of engine seize in running of 9148 K.M. it is known to O.P.No.5,Ganapati Motors, G.E. Road, Sapela, Bhilai as the repairing has been ensured at their end so also the parking charges. The O.P.No.3 and 4 is not liable to refund the same. The scratches in the body of the vehicle erased while parking inside the garage/workshop of O.P.No.5 so O.P.No.3 and 4 is not liable any more.
10. The vehicle in question is hypothecated with the bank of India as such non-joinder of parties, the case should be dismissed. The entire complaint including damage of tyres due to rubbing as urged has taken at workshop of O.P.No.5, so O.P.No.3 and 4 is not liable to refund. Therefore the O.P.No.3 and 4 prayed that for the above reasons, the case needs to be dismissed along with cost.
11. On the contrary, the O.P.No.5 neither appeared nor preferred to present his points of version in either way in sending by post or person. Although the service is sufficient in view of the section 28A of the Consumer Protection Act,1986.
12. Heard the submissions of the learned counsel of the complainant and gone through written version and submission of O.P.No.1 and 2 and O.P.No.3 and 4. Perused the available records at hand and heard the argument at length.
13, Primarily the complainant in purchase of the Maruti Suzuki (EECO) is a bonafide consumer and prima-facie the consumer suffered deficiency of service in various fronts. However, the complaint petition does not reveal the model name, engine No, chassis No and Registration No as to be a complain that needs the legal requirement. The observation made by O.P.No.3 and 4 in its pleading deems right and in absence of registration certificate and therein the mode of finance disbursal, the hypothecation status against the borrowing is not confirmed one.
14. The complainant’s sole allegation is delay delivery, collection extra amount and charging fees, during warranty and claiming refund. As on the record, Odyssey Motors (P) Ltd has received Rs 11,700/- vide receipt No.7288 dt. 02.05.2010. Also received a sum of Rs 5,000/- on dt.17.03.2010 against booking, vide receipt No.6371 and the final/total cost of Rs 3,39,822/- against vehicle (EECO) on dated 28.08.2010 vide receipt No.6626 is substantive and proves that money has been received in various dates as advanced.
15. No dispute prevails against non receiving of money. The justification as given by O.P.No.3 and 4 that the sum of Rs 5,000/- and Rs 11,700/- is incorporated in total cost of the vehicle. So, we are in completely failed to conceive when the DD drawn for Maruti Suzuki (EECO) against Odyssey Motors (P) Ltd,( an authorized Maruti dealer) for a sum of Rs 3,39,822/- in full payment, then how is possible a sum of Rs 11,700/- has been included in total cost without any just and plausible justification. Such whimsical answered is ample proves the dealer sucks money in broad day light and indulgence in unfair trade practice. No document has been adduced in transparent receive of same. Non adducing cogent reason along with any documents, landed him in the mis-representation to the forum in deliberate and intended manner. So it needs to be refunded as urged by the petitioner. Even no ground or basis has been advanced on the issue of delay delivery. It is also praiseworthy, the firm has intervened in waiving off the charges as demanded in repair of engine by the O.P.No.5 during warranty period.
16. It is the duty of manufacturer/dealer to repair defects in a product during warranty period within a reasonable time. CPR Jan 2010,Chhatisgarh,267.
17. The issue of engine cease in running 9148 K.M. develop of scratches, Non-repairing suspension without paid charges and rubbing tyre is to be answered by the manufacturer and authorized service centre in co-hesive support and assistance. Non appearance or no appearance due to any collusion to avoid the responsibility is joint and severally. We find no way the O.P.No.5 can absolved his legal obligation duty during the warranty. The flexibility in terms warranty should be cleared and intimated in conscientious way but we see neither the manufacturer nor dealer or the service centre is in advance to render adequate and sound technical service rather all are in denouncing the warranty period obligation and it is substantive O.P.5 being and authorized service centre has willfully caused the deficiency in not giving the service as required under the law. So he is in fault as because the warranty clause (2) stipulates:-
(1)The term of warranty shall be twenty four months or 40,000 K.Ms (whichever occurs first ) from the date of delivery to the first owner.
Clause (3):- Maruti Suzuki’s warranty obligation:-
If any defects should be found in a Maruti Suzuki vehicle within the term stipulated above, Maruti Suzuki’s only obligation is to repair or replace at it’s sole discretion any part shown to be defective, with a new part or the equivalent at no cost to the owner or parts or labour, when Maruti Suzuki acknowledges that such a defect is attributable to faulty material or work man ship at the time of manufacture. The owner is responsible for any repair or replacements which are not covered by this warranty.
18. In view of the provisions as made by the manufacturer under warranty condition, the petitioners vehicle is within the stipulated coverage of kilo meters. So also it is the duty of the authorized dealer to ensure the defect developed in suspension for which the tyres got damaged, such consequential loss it to borne by the manufacturer, dealer and service centre jointly and severally which is job work under warranty our such view is fortified by the decision in – Sooraj Automobiles Ltd. Vs. Shri Bhanwarlal and others- 2013 (3) CPR 12 (NC) in which it is held- “ Dealer is bound to repair vehicle during period of warranty”.
19. Again the learned counsel of complainant submitted that when the defects in the vehicle is repetitive and surfaces in short span of repairment it is apparent, the defect is of manufacturing inherent in nature normally in such like situation, the onus of pro0of should be shifted to the side of the O.P, when the manufacturing defects are visible in it’s workshop area and no explanation has been adduced in its rebuttal. Then we find considerable force in the argument urged by the petitioner. The same view is supported in back drop of the decision- Manohar lal Vs. Raj Motors 2014(3) CPR 285 (NC) Held- O.Ps are bound to pay for manufacturing defect of new vehicle”. And Sri Shyamal Ghosh Vs Khokan Auto Distributors, 2013(1) CPR 117 (W.B.)- in which it is held- “Expert opinion is not always necessary”.
(ii) Malwaa Automobiles (P) Ltd Vs Sananda Sangwan & Another 2013 (4) CJPR 114 NC- Held- It is the duty of dealer and manufacturer to play a pro active role and remove defects in the vehicle leaving no element of ambiguity about its fitness from technical point of view.
20. In view of the above mentioned observation which are fundamental in nature, we are of the opinion that the vehicle in question suffered defect within the provision of the section 2(f) of the Consumer Protection Act that is in fault, imperfection and standard which is ;required to be maintained by. The performance of service from booking to repair is dismal as malfunction and multiple defects persists till the date. Under the circumstances, thus it is ordered;
ORDER.
(i) The O.P.No.3 is liable to refund a sum of Rs 16,700/-(Rupees Sixteen thousand seven hundred) only, within 45 days of this order, failing which 9% interest per annum will accrue from the date of application till realization.
(ii) The O.P.No.1,2 and 3 are liable to pay a sum of Rs 10,000/- (Ten thousand) only, to the complainant towards the other technical defects not ensured at the respective O.Ps end hitherto jointly and severally along with a litigation cost of Rs 1,000/-(Rupees one thousand) only, within 45 days of this order, failing which interest @ 9% per annum will accrue on the entire sum from the date of application till realization without any demur.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 10TH DAY OF JULY 2015.
I agree.
( S.Rath) ( P.Samantara)
MEMBER. PRESIDENT.
