ORDER

Per Sh. Rakesh Kapoor, President

The complainant had bought a second hand Honda City Car bearing registration no. DL 3C AK 1361 from OP — 1 who is  the authorised dealer of OP — 2. The car was purchased on 19.5.2011
an payment of a sum of Rs.3,10,000/- which was paid in cash. It is  alleged by the complainant that he had bought  the car  on the
representation of the OPs that they specialize in second hand cars and give warranty for a period of one year. In this case warranty was given for the period 27.5.2011 to 26.5.2012.  It is alleged by the complainant the OP s had wrongly certified that the car plied on the road upto 50,000 k.m. whereas the condition of the engine shows that it had plied more than 1 lac k.m. The main grievance of the complainant is contained in Paras 5 & 7 of  her  complaint which are reproduced as under:

5. That the car bought by the complainant is not in a good condition. Since the complainant bought the car, he is daily visiting the workshop on G.T. Karnal Road for service under warranty period, which makes it prima facie clear that the car was not in a good condition before sale. After purchasing of the car  the complainant travelled to Dehradun by Car but before reaching Dehradun it started trouble hence the complainant got it repaired the same and when the complainant was returning back it again gave trouble and went out of order, hence the complainant had to inform the respondent No.1 who offered tow away facility on payment of Rs.3500/- and the car was
brought to the workshop of the respondent No.1 where it was kept for repair from 18.6.2011 to
8.7.2011. Even after its release from the workshop, noise was noticed in the car from
the Engine and complainant again visited the
respondent No.1 and was told that the chain  
set of the car has to be replaced. In this way
the complainant has spent about Rs.25000/- on 
repair of the car inspite of the insurance and
warranty given by the respondents. The car is
still not fit for driving and is ,parked outside the house of the complainant as the
respondents are unable to remove the defects
inspite of various visits to the workshop of the respondent No.1. Even the respondents did not make the job card on visit by the complainant along with car as they were unable to find out the defects in the car. From the condition of the car it has been assessed that car has run more than 100000 Km and not 50000 Km as was told at the time of same.  Thus my complainant has been cheated as the said car prior to sale has not been mechanically examined and repaired after purchase from the market for further sale to prospective buyer so as to certify that the car is good running condition on the road as was assured and represented by respondent no.1.  It is pertinent to mention here that at the time of the sale of car, the respondents gave new Insurance commencing from the date of sale deliberately, knowingly fully that the car is not in a good condition so as to trust its personal liability of repairing the car on Insurance company as well as on the complainant as changed of all the parts are not covered under the insurance company hence some liability was fastened on the insurance  company and part of it on the complainant in the grab of insurance.

7. That the complainant has been misrepresented cheated as every second day there is some or the other problems in the car. The problems and defects have been mentioned in the e-mail by the complainant to the respondents.
(a) There is no check Engine light in the car as it has been disconnected.

(b) Meter reading shows 52000 Kms were as the
car is running above 100000 Kms.
(c) Radiator of the car is broken
(d) Clutch is weak
(e) It is an accidental car
(f) Brake pads are not working properly
(g) Noise from steering and suspension.
(h) Weak engine
(i) Noise from cylinder
(j) Water body defective
Even now a days the car is not in a good working condition and requires mechanical service. The same is standing at the house of the complainant and the complainant is unable to drive the same on the road. At the time of sale, the check Engine light as mentioned above was disconnected deliberately so that in case the check engine light was working the same could have revealed the position of the engine very weak. Thus ,the complainant could not know the position of engine which was very weak at the time of purchase of the car from the respondent, who sold the same to the complainant without making it fit.

    The complainant has alleged deficiency in service on the part of the OPs as well as unfair trade practice and has approached this Forum with the present complaint.
 

The OPs have contested the complaint and
have filed separate Written Statements.  In his W.S., OP -1 has taken the  following  preliminary objections:

1. That the present complainant has already got the refund/claim of Rs 25000/ from MFCWL i.e respondent no.2 much prior to filing of the present complaint the fact which she has deliberately concealed from this honb’le forum. The present complaint is liable to be dismissed on this ground alone.
2. That the present complaint is not maintainable against the answering respondent on the ground that as per the terms of the agreement of Purchase/delivery receipt “warranty agreement is an agreement between buyer i.e. complainant and Mahindra First Choice Wheels Ltd i.e respondent no2 (Annexure- 1). So the answering respondent i.e respondent no-i has nothing to do with the present complaint and the present complaint is liable to be dismissed as against the answering respondent on this ground besides other grounds mentioned in above and subsequent paras.

3.That the vehicle in question was sold to the complainant on as is where is basis by the answering respondent and also it was made clear to her before the sale of the vehicle in question that the respondent no.1 bears no responsibility regarding the correctness of the Kilometres reading in odometer and for any malfunctioning of the vehicle or claims arising there from after delivery. The same can be verified from the para one of the(nnexure-2) Moreover the terms and conditions were explained to the complainant orally also by the answering respondent at the time of delivery of vehicle in question.

4. That the warranty terms and conditions placed on record by the complainant clearly reveals that the MFCWL warranty is a contract between Mahindra first choice Wheels Ltd i.e MFCWL respondent no-2 and the owner of the vehicle i.e complainant. Further it reads “owner shall not include a dealer or trader who has purchased the vehicle for the purpose of reselling the same” (Annexure-).So it is crystal clear from the bare reading of terms and conditions of this document filed by the complainant that the respondent no-I bears no responsibility of any kind with respect to any complaint regarding vehicle in question. The present complaint is filed against the answering respondent with ulterior motives and to harass him.

        OP -1 has contested the complaint on merits and has denied allegations of the complainant as made in the complaint. He has denied that the complainant has spent a sum of Rs.25000/, on the repair of the car and has claimed that no receipt in support of the alleged repair has been filed on record. He has also stated that it had been explained to the complainant that the OPs did not bear any responsibility regarding correctness of the k.m. reading in the Odometer in the car. OP has therefore, prayed for the dismissal of the complaint against him.

   In its separate Written Statement, OP2 has also denied any deficiency in service on its part  and has prayed for the dismissal of the complaint. The main defence of OP — 2 is contained in Paras 3, 5 & 7 of the W.S. which are reproduced as under:

3.That the Respondent No. 2 reiterates that the
averment made in Para 3 of the complainant are true to the extent that respondent No. 2 is a well reputed company for car selling and purchasing. However Mahindra First Choice Wheels Ltd is into business of sale and purchase of pre owned cars through its appointed dealer network - Malhotra Motors Westend being the one in present case, where Mahindra First Choice Wheels Ltd provides the service of certification of cars procured by its dealers. Mahindra First Choice Wheels Ltd offers a limited warranty of one year or 15000 km on certified cars. The vehicle in question in the present complaint was offered a limited warranty from 27.05.2011 till 26.05.20 12 as per the terms/norms of warranty agreed by the customers and duly signed as per the records of the company. It is not correct to say that, the car has been plied on road upto 100000 Kms, the same is false and denied. As per the sales agreement Mahindra First Choice Wheels Ltd. does not certify the odometer reading of the car.
5.That the respondent No. 2 reiterates that the averment made in Para, 5 of the complaint is false, frivolous and hence denied. After malfunctioning of the vehicle was reported to Mahindra First Choice Wheels Ltd, Mahindra First Choice Wheels Ltd carried the necessary repair on the vehicle and defective parts were replaced under warranty to make vehicle into good condition. The parts replaced were not falling under warranty coverage but despite this a goodwill warranty claim for Rs. 25,750/- was allowed on customer’s car. As reported by the customer that an amount of Rs. 3500/ was paid for towing of the car, as per the term of Road Side Assistance (RSA) facility, it has been clearly mentioned that service up to a distance of 25 Km from the point of purchase is free and beyond that it is on chargeable basis. No claim has been intimated to Mahindra First Choice Wheels Ltd till now where chain set needed to be replaced under warranty. No warranty claim has been raised on Mahindra First Choice Wheels Ltd after 8/7/2011. As the First Information Report for warranty jobs was made on date 28/6/2011, the said vehicle was received at the workshop of Mahindra First Choice Service Ltd and the service was done up to the customer’s satisfaction level and the same was also acknowledged by the customers on 17/7/2011. It is pertinent to note that Malhotra Motors Westend does not have workshop of its own therefore they do not make any job cards. Complainant was informed at the time of sale of the vehicle that the car had run for 52000 Kms and the same is also captured in the agreement to sale and warranty acknowledgement signed by the complainant. As mentioned above Respondent No. 2 never certifies the odometer reading of the cars. It will be wrong to say that the car prior to sale has not been mechanically examined and repaired whereas the vehicle was already examined / certified by Mahindra First Choice Wheels Ltd. Mahindra First Choice Wheels Ltd has no knowledge about the commercial deals such as Insurance between complainant and Malhotra Motors Westend as Mahindra First Choice Wheels Ltd involvement is limited to certification and post sales warranty..’

7.That the Respondent No. 2 reiterates that the averment made in Para 7 of the complaint are false hence denied.
a) That in respect of the contentions made in the clause “a” of Para 7 of the complaint it is denied that
the check engine
light (ECM) is been disconnected as alleged or at all.
b) That the clause “b” of Para 7 are false hence denied as Mahindra First Choice Wheels Ltd never certifies the odometer reading of the cars
c) That the Clause “c” of Para 7 are false hence denied as the radiator of the car was changed being under warranty.
d) That the Clause “d” of Para 7 are denied as being a wear tear part it is no covered under warranty.
e) That the clause “e” of Para 7 are denied as there
were no structural damages.
f) That the clause “f” of Para 7 are denied as being a wear tear part it is not covered under warranty.
g) That the clause “g” of Para 7 are denied as noise, from steering and suspension can also be due the conditions of the road and also upon the driving habits.
h) That the clause “h” of Para 7 are denied.

i)That the clause “I” of Para 7 are false hence denied. No such intimidation was given to Mahindra First Choice Wheels Ltd.

j. That the clause “j” of Para 7 need no comments as being ambiguous.
 

The mentioned vehicle has been received by the complainant after it got repaired at workshop on dated 17/07/2011. The Complainant already signed that he is satisfied with work done, and there is no pending work in vehicle. The complainant also did the road test of of concerned vehicle

OP2 has also prayed for the dismissal of the   complaint.

     We  have heard arguments advanced at the bar and have perused the record.

     The complainant has placed on record the delivery receipt dated 26.5.2011 showing the purchase of the Honda City car  bearing registration No. DL 3C AK 1361. A copy of the registration card  filed on record  shows that this car was registered on   17.12.2004. It is , therefore,  clear that at the time of the purchase of the car it was 7/8 years old.     The car was sold to the complainant on “as is where is basis” but a warranty of one  year  was extended  in favour of the complainant   by OP2.  Under the head scope of warranty coverage  the following has been recorded :

The warranty  does not cover  normal maintenance services including engine tuning , break and clutch etc.

  The warranty  does not cover replacement of parts as a  result of normal wear and tear, ageing such as spark plugs , belts, break shoes, break disks , clutch disk/ pressure plate, filters, wiper blades, bulbs , fuses , brushes , houses , tyre , tube , battery , audio system , catalytic converter, silencer, exhaust pipe, wiring , electrical rubber items and mounting.  In the present case, the grievance of the complainant is that the car purchased by her is defective and has to be taken to the authorised service centre for repairs on almost every day.    The complainant had in para 7 of her complaint listed the problems and defects  in the car.   These have been reproduced above.  Under the head (a)  the complainant had alleged that there was no check engine light in the car as it has been disconnected.  The OP has denied this fact but be that as it may , the complainant ought to have  insisted on the check engine light at the time of the purchase of the car  and should not have raised an issue of this at a later stage more so at the time of filing of the present complaint.  Under the  head (b), the complainant had alleged that the meter reading shows 52,000/- Kms whereas the car has run more than one Lac Kms.   The complainant has not placed on record any evidence / report to prove this fact.  There is nothing on record except the bald statement of the complainant to prove that the car had run for more than 1,00,000/- Kms. Even otherwise, the Ops have explained that there is no warranty with regard to the correctness of the odometer.  Under the head (c), the complainant had alleged that the radiator of the car was in a broken condition. OP2 has admitted the fact but has claimed that it had been replaced under warranty.     Under the head “d” and “f”, the complainant had alleged that the clutch is weak and the break pads are not working properly.   OP2 has explained that this is not covered under the warranty clause as it is due to normal wear and tear. The fact is borne out from the warranty clause already referred to above.  Under the head (e), the complainant had alleged that the car is accidental. This fact has been denied by OP2 who has claimed that there was no structural damage to the body of the car .  The complainant has not placed on record any report or document in proof of the aforesaid allegation. Even, otherwise, there is nothing on record to show that the Ops had represented that  the car was not accidental.     Under the head “g” , the complainant had alleged that there was noise from steering and suspension . OP2 has denied this fact and has claimed that the noise from steering and suspension can also be due to the condition of the road and the driving habbits.   Under the head (i) , the complainant had claimed that there was  a noise from cylinder .  OP2 has denied this fact and has claimed that no such intimation was given to it.   Under the head (g) and (i) again there is no documentary proof of the defect in the car . It is  not shown that the complainant had  taken the car to the workshop of OP2 and had  complained about the aforesaid conditions. The complainant had also alleged under the head (h) and (j) that the engine of the car was weak and its water body was defective.   OP2 has also denied this fact. Again, there is no measure  by which one can come to the conclusion that the engine of the car was weak at the time of its purchase.   But be that as it may,    it was for the complainant to have ensured   before purchasing the car that its engine was in a good condition.    It is pertinent to note that the car was brought to the workshop of OP2 on 8.7.2011 after its purchase and repairs were carried out  at a total cost of Rs. 35,045/-  as is clear from proforma invoice Ex. CW1/.10.   However,  the complainant was charged for Rs. 11,343/- only and  OP2 had changed parts under warranty to the tune of Rs. 25,750/-.   The record does not show that the complainant had  again taken the car to the workshop of OP2 either for replacement / repair of the clutch  or for repair/ replacement of the chain set as has  been alleged in the complaint.     We, are, therefore, of the considered opinion that there is nothing on record to show that the Ops were deficient in rendering services to the complainant. As already stated,  the complainant had purchased a car which was 7/8 years old on as is where is basis .  The car was repaired as per the warranty clause whenever it was brought to the workshop of OP2.     We , therefore, see no merits in this complaint. The same is hereby dismissed. 

A copy of this order be made available to both the parties free of cost as per law.

File be consigned to R/R.

Announced in open sitting of the Forum on_____________