DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.445 of 2015
Date of institution: 03.09.2015 Date of decision : 10.07.2019
Ar. Mrs. Madhu Garg wife of Shri Tarsem Garg, R/o H.No.1641, Sector 4, Panchkula, Prop. M/s. Creative Consortium, SCO 56-57, Swastik Vihar, MDC, Panchkula.
…….Complainant
Versus
1. Shri Sanjeev Raj Goel, CMD, Goel Motors Pvt. Limited, B-55, Phase-VI, Industrial Area, Opp. Verka Milk Plant, Mohali.
2. The Managing Director, Mahindra & Mahindra Limited, Area Office Chandigarh, Opposite Swaraj Plant Gate No.3, Industrial Area, Phase-IV, Mohali (through Mr. Sandeep Yadav, Incharge Chandigarh Area Office).
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri R.P.Singh counsel for complainant.
Shri Vaibhav Narang, Advocate and Shri Subhash Chand, Advocate on behalf of OP No.2.
OP No. 1 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant became owner of Mahindra XYLO E8 SUV vehicle after purchase of this vehicle from M/s. Goel Motors Pvt. Ltd. on 28.09.2009 for Rs.7,99,694/-. Sale certificate was issued after service of legal notice by complainant through her husband on 06.10.2009. It is clearly mentioned in sale certificate that vehicle is manufactured in May, 2009. This vehicle was 5 months old, but had been giving trouble since beginning and as such complainant felt doubt as if vehicle was defective or already underwent an accident. Legal notice through email to OP No.1 was sent alongwith notice through registered post on 12.10.2009 for pointing out following defects:
- The vehicle was 5 months old
- OP No.1 used the vehicle for last 5 months.
- Rubber parts of the vehicle were stale. OP No.1 just rubbed oil to give these parts a little shine to overcome the defects.
- Speedometer was disconnected. OP No.1 enjoyed the vehicle for the last 5 months.
- Calcium deposit mark on the side view mirrors reflected that the vehicle was used very roughly.
- Excessive noise of the engine.
- Fuel average was very less.
- Excessive suspension noise.
- Very poor customer service.
- Promises not upkept
These defects clearly pointed out that vehicle was second hand and repaired one, but sold to complainant by mentioning same as new one. Delivery of vehicle was agreed to be given before 30th September for enabling complainant to get benefit of depreciation for the whole year. However, date 28th September was chosen as date of delivery because it was Dusherra on that date. Mr. Naveen and Mr. Sidhu, General Manager of OP No.1 kept complainant waiting for four hours. Meanwhile office was closed due to half day holiday on account of Dussehra. In the evening when patience of complainant stood exhausted, then OP No.1 arranged for a vehicle. On enquiry about month of manufacturing, it was disclosed that vehicle is latest one, but inability was expressed to arrange proof of manufacturing month due to half day holiday. When complainant took the vehicle out of sales office, then she noticed that speedometer wire is not connected and kilometer reading is paused at 64 K.M. Complainant brought the vehicle back and service engineer rebuked the workmen by claiming that during washing of vehicle, speedometer wire was disconnected. Complainant accepted the explanation given in good faith because she could not smell ill intention of the company. All attempts to contact MD and Vice President of OP No.1 did not yield any result. Rather OP No.1 gained time to make ground for denial of right of replacement of vehicle. It is claimed that whole conduct of OP No.1 was full of cheating, deceit and malafide intention for pushing sale of old, used and repaired vehicles for pecuniary gain. Complainant through her husband Mr. Tarsem Garg sent email on 18.11.2009 to Managing Director of Mahindra & Mahindra Ltd., but no response received. Thereafter another email was sent to Company Secretary with request for putting the grievance before the Board of the Company, but no response received. Under these circumstances, complainant claims that she has to presume as if the company was aware of the conduct and fraud of dealer and was also party to pushing sale of repaired vehicles. Again a notice of deficiency in service through husband of complainant was sent to OP No.1, but no reply received. Due to family problems, complainant could not persue her case with the company or with any legal authority. With heavy heart and feeling of being cheated, complainant used the vehicle for 5 years, during which period complainant had to shell out substantial money on repair and replacement of parts, which are not normally required for such a low running vehicle. Paint of the vehicle started fading. Distortion of colour became visible to naked eyes. Big patches developed on roof of vehicle. Colour of bonnet also faded. Thereafter complainant did show the vehicle to her car mechanic, who disclosed that the vehicle was repainted because scratches of regmar were there beneath the damaged paint. Recent photographs showing defects are alleged to be enclosed with the complaint. Thereafter complainant took up the matter with OP by sending email on 16.05.2015. Mr. Harvinder Singh, Service Manager of OP No.1 contacted complainant on phone for calling upon her to bring the vehicle for inspection to workshop of OP No.1. After inspection and discussion with service engineer of Mahindra, Mr. Harvinder Singh admitted about quality failure, but refused to rectify the defects. Demand of Rs.15,000/- was put forth for repairing the roof for removal of defects. Thereafter email on 04.06.2015 was sent to OPs for removal of defects and also for complaining of delivery of sold repaired vehicle as new one. Complainant received mail on 05.06.2015 for the first time from Renita Dsouza, Customer Care Automotive Division in which it was mentioned that Mr. Sandeep Yadav, Customer Care Manager of Chandigarh area office will review the matter and take appropriate action on the reported concerns. No person contacted the complainant till date. OPs rendered deficient services and even they are liable for the fraud committed by adopting practice of selling second hand repaired vehicle. So replacement of vehicle sought or in the alternative refund of Rs.8,02,694/- sought. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.21,000/- more claimed. Interest @ 24% per annum on the price amount also claimed.
2. In reply submitted by OP No.1, it is pleaded inter alia as if complaint is not maintainable being barred by limitation and filed with intention to harass and humiliate OP No.1. Besides it is claimed that complainant has not filed any expert or cogent evidence in support of her case as required by sub clauses (c) to (g) of Section 13 (1) of Consumer Protection Act. As complainant herself claimed that she is running consultancy business and as such she is not consumer. Purchase of vehicle took place on 28.09.2009, but relief regarding replacement of vehicle sought after 6 years in 2015 and as such in view of Section 24-A of Consumer Protection Act, complaint being barred by limitation, merits dismissal. Complaint has been filed by name of OP No.1, but the vehicle was sold by Goel Motors Pvt. Ltd. which is a registered company under the Companies Act. Filing of complaint by impleading by name OP No.1 itself shows that the complaint has been filed with malafide intention. OP No.1 cannot be impleaded in person because Goel Motors Pvt. Ltd. is a corporate and juristic entity. Complaint alleged to be filed on false and vague allegations regarding defects in the vehicle and as such same liable to be dismissed with heavy cost by invoking Section 26 of Consumer Protection Act. Complainant herself claimed that she is using the vehicle for the last 5 years and as such story regarding sale of second hand vehicle is totally false and vague. In Para 4.1 of the complaint it is mentioned that car purchased for Rs.7,99,694/-, but in the relief return of Rs.8,02,694/- sought, which itself shows intention of complainant to harass and humiliate OP No.1. As complaint is filed with malafide intention, as such prayer made for dismissal of the same.
3. In separate reply filed by OP No.2, it is claimed that relationship between dealers and manufacturer is on principal to principal basis. OP No.1 authorised to purchase vehicles manufactured by OP No.2 in bulk quantity and in turn resells the same to other customers. OP No.2 is not aware of ultimate customer of the dealers. There is no privity of contract between OP No.2 and customers of vehicles. OP No.2 is not responsible for any of the acts of omission and commission of its dealers because dealer being separate principal is not agent of manufacturer. OP No.2 plays no role in sale of vehicles because the same is prerogative of dealer. Dealer accepts the sale consideration amount of the vehicle and thereafter issues the receipt, in which OP No.2 has no role to play. Complaint filed by complainant is barred by limitation because vehicle purchased on 28.09.2009 and complainant started lodging complaints on 12.10.2009, 18.11.2009 as per claim of complainant herself. Complaint could have been filed upto 17.11.2011, but it being filed in October, 2015 is barred by limitation in view of Section 24-A of Consumer Protection Act. Warranty of the vehicle is for two years as per warranty manual. Perusal of warranty booklet clearly shows so. However, complainant has approached this Forum after expiry of warranty. For establishing manufacturing defect, expert opinion is required, but same not tendered. No cause of action has arisen to complainant against OP No.2. Complaint being false, vexatious, frivolous to the knowledge of complainant prayed to be dismissed. Annexures-4 and 5 enclosed with the complaint shows as if legal notice served on OP No.1 but not on OP No.2. If complainant was aggrieved due to date of delivery, then she could have denied acceptance of vehicle or could have placed on record some documents to prove the allegation. However, complainant has chosen to remain silent for more than 6 years. Complainant has not disclosed date as to when she attempted to meet concerned person. After 18.11.2009 complainant has not taken any follow up action and as such it deserves to be presumed as if the matter has been resolved. Vehicle has already covered more than 83,000 KMs as on March, 2014, when it has completed 5 years of plying age. Warranty of vehicle is for two years or upto coverage of 50,000 KMs whichever is earlier. Colour of body/paint can be got faded due to many reasons like that usage of polish, cleanliness technique and the place where the vehicle is parked. After passage of many years it cannot be ascertained as to why paint of the vehicle has faded. As the vehicle is out of warranty and as such work of repair or of paint cannot be carried out under warranty and that might be the reason as to why dealer may have demanded Rs.15,000/-. Service Manager Mr. Harvinder Singh approached complainant and thoroughly checked the vehicle for the raised issues, but complainant did not allow further necessary works of vehicle for want of cost. Deficiency in service or fraudulent conduct of OP No.2 not established because complainant after getting vehicle plying for many years is demanding replacement for malafide purpose. Complaint alleged to be filed for abusing process of court and as such prayer made for dismissal of the complaint with exemplary costs.
4. Complainant in order to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-15 and thereafter her authorised representative Shri Tarsem Garg closed evidence. On the other hand counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri S.R. Goel, and thereafter closed evidence. Counsel for OP No.2 tendered in evidence affidavit Ex.OP-2/1 of Shri Manoj Kumar P. Authorised representative of OP No.2 alongwith documents Ex.OP-2/2 to Ex.OP-2/4 and thereafter closed evidence.
6. Written arguments in this case submitted by complainant and OP No.2. OP No.1 was proceeded against ex-parte vide orders dated 05.04.2018 because none turned up for him despite wait. Oral arguments of appearing counsel for parties heard and records gone through.
7. From the pleadings of parties and the submitted affidavit as well as invoice Ex.C-1 of car, it is made out that the car in question was purchased by complainant from Goel Motors i.e. OP No.1 on 28.09.2009, but this complaint filed on 03.09.2015 i.e. after lapse of 5 years and 11 months of purchase. Complaint in view of Section 24-A of Consumer Protection Act must be filed within two years from accrual of cause of action and if same not filed within this stipulated period of two years, then complaint out rightly deserves to be dismissed, being barred by limitation. Though counsel for complainant contends that recurring cause of action available in favour of complainant, but that submission of counsel for complainant has no force at all because it is pleaded case of complainant herself through Para 4.2 of complaint that when vehicle in question was 5 months old after its purchase on 28.09.2009, then it started giving trouble from the beginning and that is why legal notice Ex.C-5 dated 06.10.2009 was served on OPs. Through this notice Ex.C-5 complainant called upon OP No.1 to replace the mats etc. and to pay compensation. The period of 15 days contemplated through legal notice Ex.C-5 was to expire on 21.10.2009. Notice of deficiency in service Ex.C-6 dated 22.10.2009 even was served through postal receipt. Like that notice Ex.C-7 dated 28.10.2009 served and email correspondence Ex.C-8 and Ex.C-9 exchanged on 18.11.2009 for claiming that old repaired, used car has been sold as new one by fraudulent manner. Even notice Ex.C-10 dated 30.11.2009 was served on OP No.1 for calling upon OP No.1 to pay Rs.3,000/- the excess collected amount than the price of Rs.7,99,694/- mentioned in the invoice. Ex.C-4 is notice dated 06.10.2009 served on OP No.1 for complaining of deficiency of speedometer wire being disconnected and the KM reading having paused at 64 KM. No response to notices or of email dated 18.11.2009 was received as per contents of Para 4.5 of complaint and thereafter the matter was not pursued due to family problems as per Para 4.6 of the complaint. What were those family problems qua that details are not mentioned and nor any separate application for condonation of delay has been filed and as such in the absence of any proof of sufficiency of cause of complaint being not filed within two years period as envisaged under Section 24-A of Consumer Protection Act, it has to be held that deficiencies which came to the notice of complainant in 2009 gave rise to cause of action to complainant in 2009. Last of this cause of action accrued to complainant on 18.11.2009, when email correspondence entered, but despite that complaint is not filed within two years thereof and as such certainly complaint is barred by limitation insofar as remedy of stoppage of meter reading at 64 KM as alleged or of sale of old used car as new car is concerned. Likewise deficiencies pointed out in Para 4.2 referred above in detail, gave cause of action to complainant on 12.10.2009, when notice in that respect was served, as discussed above, but despite that complaint is not filed within two years therefrom and as such certainly complaint is barred by limitation. Present is not a case of availability of recurring cause of action to complainant because if complainant came to know about sale of old used car with deficiency of stoppage of speedo meter in 2009, then cause of action accrued with respect to those matters in 2009. That cause of action arose once and not for all times to come, more so when complainant herself did not take any action w.e.f. 18.11.209 to the date of sending of email on 16.05.2015, copy of which is placed on record as Ex.C-11. Non taking of any steps for redressal of grievance with respect to cause of action that accrued in 2009, for more than 5 years now debars complainant from filing this complaint.
8. If delivery of car was made by OPs to complainant during night hours on 28.09.2009 because of that day being Dussehra day, then complainant got knowledge of defects after 5 months of use of vehicle as per contents of Para 4.2 of complaint itself. So knowledge by complainant regarding defects or of car being accidental gained by complainant by end of February, 2010. This complaint is not filed within two years from the date of this knowledge of defects even. It is not continuation of defects that to give rise to cause of action, but surfacing of first defect or of knowledge thereof to give rise to cause of action to complainant for redressal of grievance, so that defects may be got removed. Complainant approached OPs through email correspondence or notices referred above uptill November, 2009 and as such cause of action stood terminated on 18.11.2009 for the found defects in 2009 because of non applying by complainant to OPs for redressal of grievance of defects or old accidental used car being delivered to complainant.
9. If we go through Para 4.2 of complaint, then it is made out that complainant started having doubt about the car being subjected to accidental one because of giving of trouble by it since from beginning. No report of expert has been produced in this respect on record and as such virtually on basis of conjectures and suspicious, it is sought to be projected as if old used accidental car sold as new one to complainant by OPs. If the date of manufacture of car not mentioned on the date of delivery of car on 28.09.2009, then it was because of the fact that there was half day holiday on that date as borne from contents of Para 4.3 of complaint itself. This date of manufacture could have been ascertained subsequently by complainant, but same not ascertained and as such fault lay with complainant in abandoning relief in that respect. In sale certificate Ex.C-2 it is specifically mentioned that month and year of manufacture is May, 2009 and as such complainant through certificate Ex.C-2 was made known as if the car in question delivered to her was manufactured in 2009. That grievance stood redressed on issue of sale certificate Ex.C-2 dated 28.09.2009 itself. If invoice or delivery certificate etc. were not given at the time of delivery, but delivered after two months as contended through oral and written arguments, then after going through Ex.C-1 and Ex.C-2, complainant was supposed to know year of manufacture of car as May, 2009 in November, 2009 itself. On such knowledge cause of action accrued to complainant for the first time, but despite that she did not take any action after 18.11.2009 and as such virtually complainant abandoned the relief based on cause of action in November, 2009. Present is not at all a case of recurring cause of action, more so when cause of action for each found defect accrued from the date of knowledge of these defects and not subsequently. It is well settled that once period of limitation starts running, then subsequent events will not make the same as recurring cause of action. Even if complainant may have written 20 letters or visited the Managing Director or the show room, despite that complaint is not filed with respect to defects qua which knowledge got by complainant in 2009, within period of limitation of two years and as such complaint deserves to be dismissed on that score with respect to the defects that came to the knowledge of complainant upto November, 2009.
10. Next grievance projected by complainant through Para 5.1 of complaint is that she sent email dated 16.05.2015 on which Harvinder Singh, Service Manager of OP No.2 contacted her, but for removing the defects, repair charges of Rs.15,000/- were demanded and as such it is contended that in view of contents of Ex.C-11, complaint is within limitation. After going through Ex.C-11 it is made out that complainant on 16.11.2015 projected grievance as if she has noticed big patches of colour distortion/fading on roof and bonnet of the car. For the seeming colour fault, request through Ex.C-11 was made to OP for deputing an expert. If despite this request Ex.C-22 or subsequent request Ex.C-12 dated 04.06.2015, expert has not been deputed by OPs, then complainant could herself have got the vehicle inspected from an expert for finding out the cause of distortion of colour or of fading of paint on roof and bonnet of vehicle, but no such expert opinion obtained by complainant and as such fault lay with complainant in not proving that distortion or fading of this colour took place due to manufacturing defect. Car was used by complainant for 5 years and as such these pointed out defects through Ex.C-11 surfaced after 5 years of use of car. These defects’ by no stretch of imagination can be termed as manufacturing defects. In the absence of any proof on record that implied warranty of paint is more than 20 years as projected through email Ex.C-12 dated 04.06.2015, it has to be held that it is a matter of imagination of complainant to conceive that warranty of paint is for more than 20 years. How complainant came to the conclusion that the old/repainted vehicle was delivered to her, that also is a matter of imagination of complainant because fading/distortion of colour projected through photograph Ex.C-14 may have various reasons like that as to under what conditions use of car took place or as to where it remained lying parked during night or sunshine hours or rainy day hours. Atmospherical conditions also bound to have effect on the paint of a car and even fall of some chemical on the same may have result of distortion or fading of colour and as such in the absence of any proof or assertion by complainant that she kept the car in safe conditions for saving colour of the car, it has to be held that grievance projected in this respect also is not proved by complainant, more so when complainant has already used the car for more than 83000 KMs as in May, 2014.
11. After going through standard warranty clause of Mahindra & Mahindra, copy of which is produced on record as Ex.OP-2/3, it is made out that warranty for repair or replacement of parts of car is of two years or of 50,000 KMs plying, whichever occurs earlier from the date of retail sale to the customer. In view of production of this warranty terms and conditions as Ex.OP-2/3 on record it is obvious that warranty is not of 5 years as claimed by complainant. Further perusal of those terms and conditions contained in Ex.OP-2/4 reveals that deterioration of appearance items and trim, due to normal exposure or use, is not covered under the terms of warranty. Any slight discrepancy in paint, chrome and trim is corrected during the PDI as per Clause 2 of terms and conditions of standard warranty produced on record Ex.OP-2/4. Maintenance replacement does not provide for dent, scratches or other damages or normal deterioration due to use and exposure, blemishes or stone chips after delivery or damage due to chemical or industrial fallout after delivery is also provided by Note-3 of Appendix of Ex.OP-2/4 at Page 13 in print. So warranty of paint, distortion virtually is not provided beyond period of two years with exception that in case damage caused due to industrial or chemical fall out, then the warranty ceases and as such in case Mr. Harvinder Singh, Service Manager of OP No.2 demanded Rs.15,000/- for repair of roof paint charges, then same was because of the fact that warranty of two years had already expired. Exposure of car to vagaries of the season also bound to have effect on the colour/paint of the car because of its use for 5 years and as such also the complaint is misconceived for redressal of grievance projected through Ex.C-11 to Ex.C-13.
12. If email Ex.C-13 dated 05.06.2015 has been sent by Renita Desouza Customer Care of Automotive Division to complainant for disclosing that Mr. Sandeep Yadav Area Officer has been authroised to review the matter and take appropriate action, then due to that alone it cannot be inferred that OPs virtually acknowledged their fault, more so when disclaimer regarding contents of Ex.C-13 points out that email has been received in error and that is why it should be deleted from the system immediately. Complainant want to get benefit of Ex.C-13 despite the fact that admission of defect of paint is not projected or made through Ex.C-13 at all.
13. If OPs have not filed any document or history sheet or pre delivery record, then same does not make any difference because pre delivery record not to serve any purpose, more so when complaint with respect to cause of action that occurred in 2009 is barred by limitation. Record of history even need not have been produced because the fault of paint fading may be due to exposures or like reasons of fall of chemical or anything else on the car. Replacement of car after 6 years is sought for getting undue benefit, despite the fact that warranty is only for two years, as discussed above and as such complaint certainly is filed for abusing process of law.
14. As a sequel of above discussion, complaint deserves dismissal and the same is hereby dismissed without any order as to costs. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
July 10, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
