STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 53 of 2013 |
Date of Institution | : | 07.02.2013 |
Date of Decision | | 01.05.2013 |
M/s Maruti Suzuki India Ltd., Registered Office at Plot No. 1, Nelson Mandela Road, Vasant Kunj, New Delhi-110070.
……Appellant/Opposite Party No.1.
Versus
- Sh. Ashok Sobti son of Late Shri S.L. Sobti, resident of House No.3316, Sector 24-D, Chandigarh.
....Respondent/complainant
- Modern Automobiles having Office at Plot No.4, M.W. Industrial Area, Phase-I, Chandigarh.
- Berkeley Automobiles Ltd. having Office at Plot No.27, Industrial Area, Phase-I, Chandigarh.
....Respondents/Opposite Parties No.5 and 6.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Parmod Kumar Jain, Advocate for the appellant.
Sh. Neeraj Pal Sharma, Advocate for respondent No.1.
Sh. Aftab Singh, Advocate Proxy for Sh. Ashwani Talwar, Advocate for respondent No.2.
Respondent No.3 exparte.
PER MRS. NEENA SANDHU, MEMBER.
This appeal is directed against the order dated 31.12.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint qua Opposite Party No.1, and directed it, as under:-
“13. The Complainant having reasonably established a deficiency in service on the part of Opposite Party No.1 by proving that the defect in the paint of the car was a manufacturing defect, thus, the present complaint, is Allowed against Opposite Party No.1, keeping in view the opinion expressed by the Hon’ble Apex Court in the case titled Hindustan Motors Ltd. Vs. N. Shiva Kumar and Anr. Decided on 20.08.1999, and also during the arguments the eagerness of the Opposite Party No.1 to paint the vehicle again and the complainant’s no objection to it, we direct Opposite Party No.1 to take back the vehicle in question, and after dismantling all the components attached with the body shell of the vehicle in question, the opposite party No.1 shall repaint all the body parts again after peeling off the old paint, at one of their manufacturing plants. Thereafter all the components shall again be fitted to the body shell in their assembly line and inspected to be ok as per their original manufacturing standards. The Opposite Party No.1 shall also pay an amount of Rs.50,000/- as compensation on account of deficiency in service and having caused harassment to the Complainant and Rs.10,000/- as litigation costs.
14. The opposite party No.1 shall comply with the aforesaid directions within a period of 45 days after delivery of the vehicle by the complainant at the premises of opposite party No.5 failing which it shall refund the invoice price of Rs.3,91,470/- to the Complainant, with interest @12% per annum, from the date of its purchase, till it is actually paid, besides the amount of compensation and costs of litigation.”
However, the complaint, qua the remaining Opposite Parties was dismissed.
2. The facts, in brief, are that the complainant purchased a Maruti Suzuki Wagon-R VXI, from Opposite Party No.5, (authorized dealer of Opposite Party No.1), on 12.01.2011, for sale consideration of Rs.3,91,470/- vide Invoice No.0001548, dated 12.1.2011 (Annexure C-1). It was stated that within 2-3 weeks of its purchase, the complainant noticed small spots of blackish colour, in the paint of the vehicle, on bonnet and roof top. He brought this fact to the notice of Opposite Party No.6, when the vehicle was taken to its premises, for first free service. It was further stated that Opposite Party No.6, did not mention the said defect, on the job card, saying that the same would vanish after washing and Teflon coating of the paint. As such, Opposite Party No.6, got a Teflon coating done, on 20.2.2011, on payment of Rs.1406/- by the complainant, but the problem subsisted. It was further stated that, in the months of March and April, 2011, the complainant made a complaint to Opposite Party No.1, through feed back letters, and requested it, to appoint some technical person to inspect the vehicle, in question, regarding the defect reported by him. It was further stated that, in the meanwhile, the small black spots started converting into big black spots/patches and the matter was again reported to Opposite Party No.5 on 23.6.2011, during 2nd free service, but it failed to mention the said defect, in the job card (Annexure C-2/A). However, it was told to the complainant, that such kind of defects could only be tackled, by Opposite Party No.4, the Regional Service Head of Opposite Party No.1. It was further stated that on 24.6.2011, the complainant contacted Opposite Party No.4, who referred the matter to one Mr. J.L. Sachdeva, Incharge Body Shop of Opposite Party No.5. It was further stated that after inspection of the vehicle, Sh. Sachdeva explained the entire situation to Opposite Party No.4, over telephone. It was further stated that the complainant requested Opposite Party No.5, to issue a job card, to this effect, but it refused to do so, and took a few photographs of the vehicle, in question, on the instructions of Opposite Party No.4. It was further stated that being apprehensive of some mischievous act, on the part of Opposite Party No.5, for not issuing the job card, demanded by him, the complainant also clicked a few photographs, with the help of his mobile, of Mr. J.L. Sachdeva and Mr. Jasbir, while they were inspecting the vehicle in question. It was further stated that Opposite Party No.4 advised the complainant to get the roof and the bonnet of his vehicle re-painted from Opposite Party No.5, for which he never agreed.
3. It was further stated that on 25.6.2011, the complainant received a call from Mr. J L Sachdeva of Opposite Party No.5, inviting him to get his vehicle inspected by an expert and, accordingly, it (vehicle) was taken to the workshop of Opposite Party No.5 on 27.6.2011, where again, Opposite Party No.5 refused to issue the job card to this effect. It was further stated that while inspecting the vehicle, the said expert had also checked the density (DFT) of the paint and after inspection, he opined that the paint of the bonnet and roof was apparently defective. It was further stated that the complainant also contacted Opposite Party No.1, through e-mail and lodged complaints with it. It was further stated that none of the Opposite Parties helped him in supplying the expert report, which according to him, amounted to unfair trade practice and concealment of true facts.
4. It was further stated that despite numerous representations, made by the complainant, the Opposite Parties failed to elicit any response from their side. However, in an e-mail dated 12.7.2011, from the side of Opposite Party No.3, a vague reply was received, which claimed that the top coat paint of the vehicle of the Complainant got contaminated by some external factors. It was further stated that this was immediately objected to, by the complainant, as the top paint of the vehicle was very much fine, whereas, it was due to the under coating i.e. putty or primer below the surface of the paint, which was the main reason for the visibility of black patches through the light colour paint of the vehicle, in question.
5. It was further stated that after receiving the rejection letter, dated 2.7.2011, the complainant sought a second opinion, from a reputed dealer of passenger cars, having expert team of painters and experts. It was further stated that the said dealer, physically inspected the vehicle, in question, and opined that the black coloured big spots/patches, on the bonnet and roof of the vehicle, in question, were because of “MOTTLING AS ORIENTATION OF ALUMINUM PIGMENT GOT CHANGED BECAUSE OF APPLICATION WHILE DOING THE PAINT OR SOLVENT”. It was further stated that there was inherent manufacturing defect, in the vehicle, in question, and Opposite Parties No.1 to 5 were running away from their responsibilities towards their customers, and delaying the matter intentionally, for the reasons best known to them. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking direction to the Opposite Parties, to replace the defective vehicle, in question; to pay a sum of Rs.2,00,000/- as compensation for mental agony and physical harassment and Rs.22,000/- as costs of litigation, was filed.
6. Opposite Parties No.1 to 4, in their joint written version, while answering to the allegations of not registering the defect pointed out, by the Complainant, in the job cards, stated that it was actually due to the reason that the Complainant did not raise this issue at that point of time. It was admitted that the alleged problem was reported, at the workshop of Opposite Party No.6, at the time of obtaining running repairs on 20.2.2011, after the vehicle had covered 1090 Kms. It was further stated that the complainant concocted a false story about the manufacturing defect, in the vehicle. It was denied that the alleged problem was inherent. It was further stated that the complainant brought the vehicle at the workshop of Opposite Party No.5, for obtaining 2nd free service, on 23.6.2011, when the vehicle had covered 4297 Kms. It was further stated that he reported the alleged problem, alongwith the demanded repairs of scheduled service, which was noticed, on the job slip, and, as such, the allegations of the complainant of non-registering of his complaint, on the job card, was refuted. It was further stated that the cause of alleged problem was not attributed to manufacturing defect and the complainant was advised to get the repairs done as per the terms of warranty to which he flatly refused, and also threatened to file a false and frivolous case against them. It was further stated that the alleged problem was due to external factors and not a case of manufacturing defect. It was further stated that the inspection of the vehicle carried out was correct, and that the specification of paint measured through DFT was found within set parameters and standards. It was further stated that the complainant was also apprised, on various occasions, by the expert advice of service engineers to remove his apprehensions. It was further stated that as many as 11 vehicles alongwith the Complainant’s vehicle were painted in a single batch, and, no paint defect was reported from any of these other vehicles. It was further stated that neither the quality, nor the expertise of the manufacturer could be questioned, as the Opposite Parties volunteered to address the problem, as per the warranty conditions, but the complainant refused to get the same repaired. It was further stated that there was no deficiency, in rendering service, on the part of Opposite Parties No.1 and 2. The remaining allegations, contained in the complaint, were denied.
7. Opposite Party No.5, in its written statement, stated that as per the warranty terms and conditions, the complainant was entitled only to warranty repairs rather than replacement of the vehicle. It was further stated that the experts of the manufacturer examined the vehicle and according to them, there was no manufacturing defect, in the same, which was duly conveyed to the complainant. It was further stated that the vehicle, in question, was sent to the body shop by Mr. Vikas Saini, TSM of Opposite Party No.2, for checking the paint. It was further sated that the said vehicle was received in the body shop on 24.6.2011, where it was checked, by the Painter and photographs [Annexure R-5/1 (Colly.)] of the painted surface were taken and mailed to Mr. Vikas Saini, TSM. It was further stated that the vehicle was also inspected by an Engineer Mr. Arshi from DuPont Paint Agency, at the premises of Opposite Party No.5, and the entire paint surface i.e. the one alleged by the complainant, as well as the not affected surface too, was observed. It was further stated that the readings of the DFT meter used during this inspection were e-mailed to Mr. Vikas Saini (Annexure R-5/2). It was stated that the report with regard to the thickness of paint in micron units was found to be within permissible limits. It was further stated that the vehicle, in question, was absolutely in working condition, and perfect in all respects, as the same was inspected by the complainant, at the time of its delivery. It was further stated that there was no deficiency, in rendering service, on the part of Opposite Party No.5. The remaining allegations, contained in the complaint, were denied.
8. Opposite party No.6, in its written statement, stated that the services rendered by it, were only to the extent of the Teflon coating and rubbing, which were got done by the complainant, on 20.2.2011, by paying a consideration amount of Rs.1,406/-. It was further stated that since, no allegations were made against it, with regard to the services rendered by it, therefore, the complaint, against it deserved to be dismissed, with exemplary costs.
9. The complainant filed rejoinder, to the written statement, filed on behalf of Opposite Parties No.1 to 4.
10. The parties led evidence, in support of their case.
11. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to above, in the opening para of the instant order.
12. Feeling aggrieved, the appellant/Opposite Party No.1, has filed the instant appeal.
13. We have heard the Counsel for the appellant, respondent No.1, respondent No.2, and, have gone through the evidence and record of the case, carefully.
14. None appeared, on behalf of respondent No.3, i.e. Berkeley Automobiles Ltd., on 18.04.2013, and as such, it was proceeded against exparte, vide order dated 18.04.2013.
15. The Counsel for the appellant/Opposite Party No.1 (Manufacturer) submitted that neither there was any manufacturing defect in the vehicle, in question, nor the appellant/Opposite Party No.1, was guilty of any deficiency in service. He further submitted that the relief regarding the replacement of vehicle or refund of its price, as claimed by the complainant, was beyond the purview of the warranty agreement, between the parties. He further submitted that the complainant was only entitled to free replacement of defective parts, if any, as held by the Hon’ble Supreme Court of India in case Maruti Udyog Limited Versus Sushil Kumar Gabgotra & Others, 1 (2006) CPJ 3 (SC) and by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case Maruti Udyog Limited Versus Atul Bharadwaj & Others, 1 (2009) CPJ 270. He further submitted that the complainant purchased the vehicle from Respondent No.2 under a specific warranty agreement and the same was delivered in perfect OK and defect free condition. The terms of the warranty for the vehicle and the instructions contained in the owner’s manual were provided to the complainant at the time of purchase of the vehicle. He further submitted that the District Forum ignored the express terms of contract of warranty, between the parties, and raised presumption of inherent manufacturing defect, in the vehicle, in question. He further submitted that the small spots of blackish colour, noticed by the complainant, in the paint of the vehicle on bonnet and roof top, were due to some external contamination and not due to any manufacturing defect. He further submitted that had this been a manufacturing defect, then as advised by Opposite Party No.6 on 20.02.2011, the complainant would have immediately brought the vehicle to Opposite Party No.5, then and there. Opposite Party No.6, advised the complainant that the same would vanish after washing and by Teflon coating of the paint, which was got done on 20.2.2011. He further submitted that since the paint thickness (coating) on the bonnet and the roof of the vehicle, was found well within the normal range, by the Engineers from the paint manufacturer DuPont Paint, the District Forum wrongly directed Opposite Party No.1, to take back the vehicle, in question, and to repaint its body shell, after dismantling all the components attached with it, after peeling off the old paint, with one of their manufacturing plants and on failure to do so, to refund the entire price of the vehicle, in question. He further submitted that the District Forum committed grave error by relying upon the observations made by one Mr. Varinder Singh Saluja, who claimed himself to be a Director of M/s Saluja Motors Pvt. Ltd., in his report, in order to counter the expert report of the appellant as well as engineer from the DuoPoint paint company. Concluding his arguments, he submitted that the appeal be accepted and the impugned order be set aside.
16. On the other hand, the Counsel for respondent No.1/complainant submitted that the order impugned, passed by the District Forum, being based on the due appreciation of documents/evidence placed, on record, by the parties, as also the report of DuPont Paint (Annexure R-5/2), as per which, there was variation in the thickness of paint on the surface of the roof and the bonnet. He, therefore, prayed for the dismissal of appeal.
17. At this stage, it is pertinent to mention here, that the Consumer Complaint, was earlier remanded to the District Forum, by this Commission, vide order dated 01.11.2012 passed in First Appeal No.240 of 2012, with a direction, to reconstruct the documents (Annexures R-1/1 to R-1/7), as the same were missing from its file, and thereafter, decide the same, on merits, afresh, in accordance with law. The documents (Annexures R-1/1 to R-1/7), were, therefore, placed, on record, before the District Forum, by Opposite Party No.4, copies whereof, were also supplied to the Counsel opposite.
18. A perusal of the Report of Inspection (Annexure R-5/2) conducted by Mr. Arshi from DuPont Paint Company, at the premises of Opposite Party No.5, and forwarded to Mr. Vikas Saini, (Opposite Party No.4), Territory Service Manager of Opposite Party No.1, reveals that the thickness of paint of the affected surface of Bonnet, measured, in micron units, by DFT meter, was 83.8, 86.6 D, whereas, it was 70.1 and 65.5 on the non-affected portion. It clearly established that the thickness of paint varied to the extent of 15%. However, the paint on the roof of the vehicle was mentioned as 68.1 and 72.5. There was no mention, in this report, that this defect, in the paint, occurred due to manufacturing defect. Even otherwise, respondent No.1/complainant, also did not place any cogent and convincing evidence, on record, to prove that this difference of thickness was due to any manufacturing defect. Therefore, it cannot be said that the alleged defect, in the paint, constituted manufacturing defect, in the vehicle, in question. At the same time, it could not be ruled out, that there was defect, in the paint, on the affected portion of the vehicle. From the perusal of the documents [Annexure R-1/6 (Colly.)] i.e. Job Slips, dates of which are not legible, at Pages 323, 325, 329 and Annexure R-1/7 - Job Slip dated 23.06.2011, placed, on record, by Opposite Parties No.1 to 4, before the District Forum, after remand, it is established that admittedly, there was some defect in the paint. As per the stand of the appellant/Opposite Party No.1, it was/is still ready and willing to rectify this defect of paint on the affected portion of the vehicle, as per the warranty terms. However, respondent No.1/complainant did not agree to it, and due to his refusal, the defect in the paint, at the affected portion of the vehicle, could not be rectified. In these circumstances, since the appellant/Opposite Party No.1, is still ready and willing to rectify the defect of paint, as aforesaid, by matching its colour/paint with the original colour/paint of the rest of the body shell of the vehicle, in question, we are of the considered view that the ends of justice would be met, if the defective portion of paint, on the affected surface of the body shell of the vehicle, in question, is repainted and made to match with the original colour/paint of the rest of the body shell of the vehicle. In this view of the matter, we feel that the impugned order directing the appellant/Opposite Party No.1,to repaint the whole body shell of the vehicle, in question, after dismantling all its components, was not required. Not only this, the District Forum also erred in directing the appellant/Opposite Party No.1 that on failure to comply with the impugned order, within the specified period, to refund the invoice price of the vehicle to the tune of Rs.3,91,470/-, to the complainant. This relief cannot be, in any manner, said to be justified, particularly, when respondent No.1/complainant, completely failed to prove, on record, that the alleged defect in the paint, constituted any manufacturing defect in the vehicle, in question.
19. Since the appellant/Opposite Party No.1, from the very beginning, was ready and willing to rectify the defect, in the paint, the compensation, awarded by the District Forum, to the tune of Rs.50,000/-, for mental agony and harassment, seems to be excessive and, as such, the same is reduced to Rs.25,000/-. The impugned order, therefore, needs to be modified, to the extent indicated above. However, the costs of litigation awarded by the District Forum, to the extent of Rs.10,000/- are just and proper.
20. No other point, was urged, by the Counsel for the parties.
21. For the reasons recorded above, the appeal, filed by the appellant/Opposite Party No.1, is partly allowed, with no order as to costs, and the impugned order, passed by the District Forum, is modified to the extent as under: -
(i) The appellant/Opposite Party No.1, is now directed to rectify the defect of paint, at the affected portion(s) of the body shell of the vehicle, in question, by repainting the same, so as to match it completely with the original colour/paint of the rest of the body shell of the vehicle, as per warranty terms.
(ii) The appellant/Opposite Party No.1, is directed to pay a sum of Rs.25,000/- to the respondent No.1/ complainant, as compensation, for mental agony and physical harassment caused to him, instead of Rs.50,000/-, awarded by the District Forum.
(iii) This order be complied with, by the appellant/Opposite Party No.1, within a period of 45 days, from the date of receipt of its certified copy, failing which, it would be liable to pay the aforesaid amount of compensation of Rs.25,000/-, alongwith interest @12% p.a. from the date filing the complaint, before the District Forum i.e. 28.07.2011 till the date of actual payment to respondent No.1/complainant, besides payment of cost of litigation, awarded by the District Forum.
(iv) The other reliefs granted and directions given by District Forum, subject to the modification, indicated above, are set aside.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
Date: 1st May, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
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STATE COMMISSION
(First Appeal No.53 of 2013)
Argued by: Sh. Parmod Kumar Jain, Advocate for the appellant.
Sh. Neeraj Pal Sharma, Advocate for respondent No.1.
Sh. Aftab Singh, Advocate Proxy for Sh. Ashwani Talwar, Advocate for respondent No.2.
Respondent No.3 exparte.
Date
ORDER
Vide our detailed order of even date, recorded separately, this appeal filed by the appellant/Opposite Party No.1, has been partly allowed, as per directions.
(NEENA SANDHU) MEMBER | (JUSTICE SHAM SUNDER(RETD.)) PRESIDENT | |
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