BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 31^st December 2015        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:100/2015    

Complainant/s:                       Sandeep S/o.Appasaheb Desai,   Age: 30 years, Occ: Private Service, R/o.21/1A, Mahalaxmi Nilaya, Mahantesh Road, Vidyagiri, Bagalkot 587102.

(By Sri.B.S.Hoskeri, Adv.)

v/s

Respondent/s:                 1.     Renault India Pvt Ltd. (RIPL), Head Office: ASV Ramana Towers, # 37-38, 4^th Floor, Venkatnarayana Road, T.Nagar, Chennai 600017. R/by its Managing Director.

(By Sri.V.M.Sheelavant, Adv.)

2.     Nagshanti Autocars LLP (Renault authorized Dealer), P.B.Road, Vidyanagar, Hubballi 580031. R/by its Managing Director.

(By Sri.M.G.Gadgoli, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to replace the vehicle by new one of the same brand or to pay Rs.11,41,208/- (cost of the vehicle including 2 years insurance) with interest @18% from the date of purchase till realization, to pay Rs.2,52,304/- (registration charges, life tax, accessories and service charges), to pay Rs.2 lakhs as global compensation and mental agony, to pay cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant wish to purchase car for his personal and family usage as such approached respondent.2 on 13.05.2013 and purchased Renault Duster SUV motor car bearing registration No.KA 29 M 8176 with warranty of 48 months 2+2 years extended warranty from the date of purchase manufactured by the respondent.1 for Rs.10,88,900/- against invoice dt.09.05.2013. After purchase, the complainant was using the same and plying the same as per the instructions and warranty norms of the respondent. While using the same the complainant noticed water leakage under the mat all over the car, immediately approached respondent.2 and complained. Except giving lame reasons did not attend, when insisted repeatedly the same was set right by removing and replacing AC set along with the rotten mat. At the 2^nd service respondent.2 technician revealed air bag sensor was not functioning and to be replaced. Thereafter it was set right by replacing the new one. Later, the complainant noticed all the 4 tyres had severe wear and tear on the inner edges. This has not been noticed by the respondent.2’s technician even during the first 3 services attended. When the same was complained the respondent.2 did not attend by giving false reason it is due to overloading when the complainant had no occasion to ply his vehicle with overload. When the wear and tear problem was severe it was taken to MRF service station by Renault for checkup. When it was checked it was reported that there was a major deviation in the alignment of the rear wheels compared to Renault Duster alignment parameters. Inspite of severe problems respondent did not taken any care in resolving the same saying that “dead axle” is not covered under the warranty. In the meantime the complainant also had noticed that wheels boards of the front left wheel are getting broken. Two bolts got struck in the wheel and remaining bolt head broken apart. It is also noticed 3^rd bolts thread worn out around bolts neck and found there is a crack in the bolt which would be broken if left for some time like other two. Inspite of brought to the notice all these facts to respondent.2, the respondent.2 not bothered to attend. Hence, the act of the respondents amounts to adopting unfair trade practice. The defects which were mentioned were common in the vehicles manufactured by the respondent and it was learnt & confirmed by the complainant by some other purchasers of the same brand vehicle. Since the complainant is serving at Bangalore it had occurred headache to complainant to timely attend the same and to take it to Hubli all along from Bagalkot. Whenever the car was taken on holidays there was no service due to holiday as such complainant was forced to apply pay loss leaves. The complainant purchased the said vehicle by availing loan from the bank. Due to manufactural defects complainant could not able to use the same for what purpose he has purchased & as the vehicle was idle the complainant could not able to repay the borrowed amount, instead the interest is accumulating day by day. On looking into repeated problems arosed there is no point in moving around, respondents for repairing the car when they have no definite plan of action with them. So also as the complainant has lost faith in the product of the respondent there is no occasions to replace except refund of the cost including registration, life tax accessories, insurance payments & other service charges. In support of claim of the refund of amount the complainant relied on some apex courts judgments and prays for allow the complaint and to grant relief as sought in the prayer column.

3.     In response to the notice issued from this Forum both the respondents appeared and contested the matter.

4.     The respondent.1 admits the written version taking contention that the relationship between respondent 1 and 2 is of principal to principal basis as defined in Article.3 of the dealership agreement. So, the answering respondent is nothing to do with the claim and the respondent is not liable and is not a necessary party. Even then the complainant impleaded the respondent with an ulterior motive to harass the respondent. In support of this contention the answering respondent relied on several apex courts citations and shifts the burden and liability on the respondent.2. Apart from denying the liability based on the agreement entered between respondent 1 and 2 as defined in Article.3 of the dealership agreement the answering respondent denied the complaint averments made against the respondents with regard to manufactural defects contending that those defects have been arosed at the hands of the complainant for not complying and due to non performance of the proper maintenance. Further the respondent contended that whatever the defects noticed by the complainant during the warranty period were attended and set right by replacing the same as such there does not arise question of committing deficiency in service nor practice of unfair trade practice as alleged. Further the answering respondent contended that wear and tear of tyres was due to some external impact and even the respondent No 2 also communicated the same to the complainant and the complainant took back the vehicle without giving work approval. Further contended saying that warranty tyre is of tyre manufacturer i.e. of MRF and not of the respondents and is based on the warranty term of the respective tyre manufacturer. The wear and tear of the tyre is not due to the manufactural defects and is based on the maintenance by the complainant, way of usage driving manner and the road conditions and periodical alignments as per the norms and the defects which have been noticed on 20.10.2014 to that day the vehicle rund over 19865 kms., it itself reveals that the wear and tear of the tyre is due to usage style of the complainant and not due to the vehicle fault. By asserting these facts the answering respondent further in detail reveals how the tyres to be maintained timely. Further the answering respondent denied all other complaint averments except which are admitted and puts the complainant to strict proof of the same and also denied the loss, liability by relaying on  the apex courts judgments in support of the contentions and pray for dismissal of the complaint.

5.     The respondent 2 also admits written version in detail taking contentions in the same line on which the respondent 1 contended and asserted. Apart from the contentions and assertions of the respondent.1, the respondent.2 also with regard to wheel bolt damage  is concerned contended that it is due to mishandling by the complainant while replacing the wheels by someone else other than by the authorized service centers by over tightening the bolts while the wheels are removed and refitted otherwise there is no such occasion to brokening of the bolts or torning of the bolts head and jamming of the threads as alleged by the complainant in his complaint. Those are all the lame blame against the respondents in order to convince the court and to have wrongful gains. Further the respondent taken contention that till then 3^rd service there were no any problems have been arised and noticed either by the complainant or by the technicians of the respondent 2 only after when the vehicle had rund more than 19865 kms. Under those circumstances the contention of the complainant that those defects have arised due to manufacture defects is baseless and far from truth. The court commissioner inspected the vehicle on 29.08.2015 i.e. after lapse of 10 months at the time the said vehicle had rund 29814 kms., itself shows that the complainant had sufficiently rund and using the vehicle. In view of the above said facts and circumstances complainant is not at all entitled to claim of replacement of vehicle or refund of the amount as contended and puts the complainant to strict proof of the same. In total the answering respondent denied all other complaint averments and the liability taking contention that the answering respondent has not committed any deficiency in service or unfair trade practice as alleged and prays for dismissal of the complaint.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both the parties have admits sworn to evidence affidavit, relied on documents.  Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

7.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant had purchased the vehicle in question from respondent 2 manufactured by the respondent 1.

8.     Now the question to be determined is, whether the vehicle in question suffering from manufactural defects and the problems arised in the vehicle are due to the manufactural defects and not attending by the respondents amounts to deficiency in service, as such the complainant is entitled for either replacement or refund of cost including all charges of insurance, tax and accessories charges.

9.     Since the facts have been revealed in detail which requires no repetition.

10.   Though the complainant has raised several defects viz., leakage of water, non indication of air bag sensor, breakage of wheel bolts, wear and tear of the four tyres within the warranty period of 48 months i.e. 2+2 years extended warranty from the date of purchase. Among the defects the leakage of water, non-indication of air bag sensor, breakage of wheel bolts, have been replaced by the respondent without charging to the satisfaction of the respondent. Only problem unsolved and existed is wear and tear of the 4 tyres. While the respondent contended that the wear and tear of the tyres is not covered under the warranty issued by the respondent against the manufactural defects there is no such agreement in between the customer/ complainant and the respondent and further contended that the wear and tare of the tyres is solely based on how the vehicle used on the road – driving system of the driver, structure of the roads, maintenance of timely air pressure & timely alignment in accordance with the norms of the tyre manufacturers warranty. Warranty to the tyres covers only against the manufacturer of the tyres depending upon the warranty of the tyres issued by the manufacturer and contended that non impleading the manufacturer is fatal to the complaint. Further the respondent contended that till the vehicle in question rund 19865 kms., that too till 3^rd free service there was no any indication of wear and tare of the tyres as alleged & as admitted by the complainant. Interalia contended that it is due to non maintenance of the tyres. Further also contended as contended by the complainant and also as noticed by the commissioner is due to wear of axles/ suspension system/ control arm/ it must have been traced in the beginning itself. But it only occurs only after the vehicle rund for more than 19865 kms. Further contended that the commissioner observed the vehicle when the vehicle rund and when odometer readings at 29814 kms. The respondent.2 also has filed objections to the commissioner report. The commissioner has been appointed by this Forum as per Sec.13 (c) of the CP Act on the application made by the complainant. Even the respondent.1 also had taken contention in his written version unless an expert report either complainant nor the Forum cannot access the manufactural defects. On perusal of the commissioner report at conclusion para.3 with regard to uneven wear and tear on all the tyres are concerned there was no damages/ abnormal wear was found during the 3^rd free service at 19865 kms. Primary angles were as per the manufacturers specifications, but there is considerable variation in secondary angles, which might have caused the uneven tyre wear of all 4 wheels, especially more wear is noticed on rear wheel tyres. This problem might be due to component wear of axles/ suspension system/ control arm etc. Also, the uneven wear on the tyres indicates that, the above reasons lead to the negative camber and toe – in of the wheels. Further also made observation by the commissioner the wheel alignment is not being done as per the standard in the workshop, since the use of height gauge is not being used to measure the chassis heights. This is very much necessary for the vehicles having been used for longer time. Further observed the problem should have been identified with the height gauge to measure the chassis height, as there will be a change in the parameter of the components of the suspension and steering system. But the commissioner has not given specific reason except saying, might be. However the MRF Wheel test report Ex.C12 further fortify the observation made by the commissioner. It is also brought out by the complainant that he was carrying timely alignment with the respondent only. The Ex.C12 was conducted at MRF service center because of alignment unit was not working properly maintained by the respondent. So also nowhere the respondent denies or asserts the complainant was not approaching the respondent for alignment. Service invoice Ex.C10 and 11 reveals the complainant was carrying alignment at respondent. So also when the respondent 2 only carrying out all the services as per service manual, why respondents have not noticed variation in the secondary angle in the rear wheels and also it is not the case of the respondent that variation in the secondary angles is due to unnatural driving system by the complainant. Except showing tendency of escapism from liability the respondent taken contention that it might be due to over loading. But till then the complainant approach this Forum why the respondent has not noticed the same during normal course of services attended, is the question and the reasoning to arrive the respondent has not properly carried service during the service and failed to notice the same. For the sake of discussion even after submission of the commissioner report and after filing objections to the commissioner report by respondent.2 the respondent.2 would have taken an opportunity to inspect the variation in the secondary angles of the rear wheels, for what reason it arises, whether due to manufactural defects or due to rough handling of the vehicle by the complainant. But no attempts were made except oral denials.  Under those circumstances the main reason for wear and tear of the all the 4 tyres might be due to the observation made by the commissioner and not due to the manufactural defects of the tyres by the manufacturer MRF. Under those circumstances it is obvious to say, the wear and tare of the tyres is solely due to non-carrying of the proper alignment by the respondent and variation in the secondary angles as observed by the commissioner.  Hence, complainant establishes his case of deficiency in service by the respondents & hence the complainant is entitled for the relief.

11.   Now further question to be determined is, whether those defects are due to manufactural defects as such whether the complainant is entitled for replacement of the new vehicle, in alternative entitled for refund of the cost and all the antecedentle charges including life tax, insurance, accessories and other charges.

12.   As rightly discussed supra and as per the own admission of the complainant the respondent even at the first instance or after repeated persistent insist made the respondent attended and set right the defects viz., leakage of the water, replacement of entire rotten mat, replacement of air bag and broken nuts and bolts of the wheels. These defects are not major and are might be due to some other reasons. However the respondents have set right the same. Further grievance of the complainant that, if the air bag was not removed and  in the meantime if the vehicle would have met with the accident the inmates of the vehicle would have not been protected from loss of life. But in this juncture it has to be noticed it is not the case of the complainant that there was no system of indication of activation of the sensor in the dash board. As per the submission made during prosecution of the trial the LC for complainant openly admits the red light was indicating in the dash board but the complainant was under an impression that it was due to non applying of seat belt. So it is understood and confirmed that there is indication of sensor pertaining to the non activation of air bags. Under those circumstances it is common in the human made articles have some defects but set righting the same after trace out will not amounts to a deficiency in service. Even after trace out of the defects not set right and not obliged will amounts to a deficiency in service amounting to unfair trade practice. So, taking into consideration of all the defects which have raised by the complainant are not incurable and permanently persistent defects. Under those circumstances the complainant is not entitled for either replacement of new vehicle or for refund of the vehicle. It is also the case of the respondent. In this regard the respondent relied on 2011 (1) UC 421 Supreme Court C.N.Anantram vs. M/s.Fiat India Ltd., & ors. Wherin the said case their lordships have relied some other case laws relied by the counsels appearing for the party. Among them Indochem Electronics Vs. Addl. Collector of Customs – 2006 (3) SCC 721, Maruti Udyog Vs. Sushilkumar Gabgotra- 2006 (4) SCC 644 and some other cases have been referred; wherein their lordship observed when the defects are not major and are not due to original manufactural defects either ordering for replacement nor refund is not proper, if it is ordered for replacement of defective parts and charges of the defective parts is sufficient and proper. Applying the dictum of the cases relied and observation made by their lordships if it is ordered the respondent.2 to trace out whether wear and tare of the tyre is due to variation of the secondary angles of the rear wheel tyes as observed by the commissioner or for what reason the said tyres were worn out unevenly or whether it is due to imperfect alignment attended by the respondent and to set right those defects by replacing secondary angles if it is defective or otherwise if it is due to wrong alignment of the wheels and to replace all the 4 tyres free of charges to the satisfaction of the complainant.

13.   In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is allowed in part. The respondent.2 is directed to set right the defects as observation made by replacing 4 wheels with free of cost along with Rs.25,000/- towards compensation and cost of the commissioner charges along with Rs.5,000/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization. The complainant is directed to deliver the vehicle in question to the respondent.2 under proper acknowledgement and at the time of delivery of the car the respondent 2 is directed to issue job card on the date of delivery and to note the duration required to set right the defects. In the event of mentioning duration those days excludes from the 30 days stipulated period given for set right the defects. If the respondent 2 refuse to take delivery of the vehicle for repair the complainant immediately approach without delay and make necessary application by way of E.P. before this forum in this regard.

        No order is made against respondent.1.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of December 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR