Punjab

StateCommission

A/1226/2014

Nissan Motor India Pvt. Ltd. - Complainant(s)

Versus

Sukhpreet Singh - Opp.Party(s)

K.S. Cheema

09 Jun 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1226 of 2014

 

                                                          Date of Institution: 04.09.2014

                                                          Date of Decision: 09.06.2015

 

Nissan Motors India Pvt. Ltd through its Managing Director, AVS, Ramana Towers, 37 and 38, Vonkatnarayana Road, T. Nagar, Chennai 600017

                                                                                                         

                                                                                                                                                           …..Appellants/Opposite party no.2

 

                                      Versus

 

1.       Sukhpreet Singh, SD/o Sh. Baldev Singh, R/o Kothe Beran Wale,        Muktsar Road, Kotkapura District Faridkot.

 

                                                          … Respondent no.1/Complainant

 

2.       AVC Motors Nissan, Mansa Road, Bhatinda.

 

 

                                                …..Respondent No.2/Opposite party no.1

         

First Appeal against order dated 09.07.2014 passed by the District Consumer Disputes Redressal Forum, Bathinda

 

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member

          Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants                     :         Sh.K.S Cheema, Advocate

          For the respondent no.1             :         Sh. Shatki Mehta, Advocate

          For the respondent no.2            :         Sh. Rajan Bansal, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the opposite party no.2 in the complaint) has directed this appeal against the respondent no.1 of this appeal (the complainant in the complaint)  respondent no.2 (the opposite party no.1 in the complaint), challenging order dated 09.07.2014 of District Consumer Disputes Redressal Forum Bathinda, accepting the complaint of the complainant and directing the OPs to replace the injector of the  car in question with new one free of costs within warranty period and to give fresh warranty of the injector in question, besides Rs.10,000/- as compensation and costs of litigation. The instant appeal has been preferred against the same by the opposite party no.2 now appellant in this appeal.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased Nissan Micra XV Car bearing Engine No.D003140 and Chassis No.1001756 from Dada Motors Jalandhar on 29.1.2011. The complainant was assured that said car was of the best quality at the time of its purchase. The complainant purchased the said car by spending Rs.5,65,000/- and two years warranty was also given on the said car at the time of its sale to the complainant, which were further got extended on 28.1.2013, vide extended warranty policy no.21301532580 dated 28.1.2013 from OP No.1 on payment of requisite price for another two years after expiry of original warranty or up to 80000 kms, whichever occurs earlier. The complainant used to get the service of the car effected from OP No,1, which is authorized dealer of the OP No.2. The above-said vehicle of the complainant started giving troubles in the functioning, as the car in question gave the starting trouble. The complainant took the vehicle to OP No.1 on 8.10.2013 and pointed out the defects therein. The car was checked by the mechanic of OP No.1 and kept the car in question, vide job card no. ROAB13001687  dated 8.10.2013  and asked the complainant to take its delivery later on. The complainant visited the office of OP No.1 time and again and enquired about the car which did not function properly. OP no.1 sent the car to BOSCH for investigation and after investigation BOSCH furnished its report that injector of the car had stopped functioning and recommended to OP No.1 that through cleaning of the system from fuel tank to injector pipes may be carried out for removing of any water contents and replacement of diesel filter.  The complainant approached to OP No.1 with the request to replace the injector of the car in question, but they flatly refused to replace it within the warranty period. The complainant issued legal notice dated 4.12.2013 upon Ops through Sh.Japneet Kapil Advocate Bathinda to replace the aforesaid defective injector of the car in question. The OP No.1 gave reply to the said notice on 10.12.2013 through Sh. Rajiv Gupta Advocate on the basis of the false facts and flimsy grounds.  The complainant suffered mental harassment due to deficient act of the OPs. The complainant has, thus, filed the present complaint directing the OPs to replace the defective injector of the car in question with new one free costs and further to pay compensation to the tune of Rs.50,000/- for mental harassment, besides Rs.11,000/- for costs of litigations.

3.      Upon notice, OP No.1 filed its separate written reply raising preliminary objections that the complainant has no cause of action to file the present complaint against OP No.1, as the claim of the complainant is out of warranty period.  On merits, in the written reply, it was averred that the warranty of the vehicle was got extended by the complainant on 28.1.2013 from OP No.1 by extending original warranty for another two years and no new warranty condition was added to it. It was denied by OP No.1 that the car in question was sent to BOSCH for investigation. It was not denied that injector of the car was sent to Chandigarh to Delphi Service Centre  for their expert opinion, as injector was of Delphi make. The injector was damaged due to improper /dirty fuel used by the complainant, as such repair of the injector is not covered under the warranty clause and is out of warranty.  The complainant is supposed to bear the expenses of the repair/replacement of the injector in question due to above said reasons. The warranty given on the car in question lapsed due to improper use of fuel by the complainant. Any deficiency in service on the part of OP No.1 was specifically denied. It was further allegd that the complainant is bound to bear the parking charges of Rs.250/- per day from 29.10.2013 till the date of delivery of the car by OP No.1 and hence OP no.1 prayed for dismissal of the present complaint.

4.      Upon notice, OP no.2 filed its separate written reply raising preliminary objections that OP No.2 is manufacturer of Nissan Micra Car among other four wheelers and OP No.1 is the authorized seller and service dealer of the motor vehicles manufactured by it. It was further averred in the preliminary objections that the complaint of the complaint is false, frivolous and merits dismissal under Section 26 of the Consumer Protection Act. It was further averred that OP No.2 cannot be held liable for alleged acts and omission. On merits, it was averred by OP No.2 that investigation was conducted by JAECO Rebuilding System Pvt. Ltd  Chandigarh, where it was reported that the defect in the injectors had occurred due to water entry therein. The report further recommended that there should be thorough cleaning of the system from fuel tank to injector pipes. The defects occurred due to water contents of the fuel system. The complainant had not maintained the vehicle in proper manner and remained negligent by getting it filled with adulterated fuel, which further damaged major part of the engine.  It was further pleaded by OP No.1 was rightly refused to replace the injector under warranty, as there was no manufacturing defect in the car in question. The above defects developed due to adulterated fuel being used by the complainant, which was infused with water. OP No.2 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence, the copy of legal notice Ex.C-1, postal receipts Ex.C-2 and Ex.C-3, copy of extended warranty certificate Ex.C-4, copy of R.C of the vehicle Ex.C-5,  copy of driving license Ex.C-6, copy of investigation report Ex.C-7, copy of retail invoice Ex.C-8, copy of sale certificate Ex.C-9, copy of Form No.22 Ex.C-10, copy of delivery challan Ex.C-11, copy of insurance cover note Ex.C-12, copy of job card Ex.C-13, copies of bills Ex.C-14 to Ex.C-28, affidavit of Sh.Sukhpreet Singh Ex.C-29, affidavit of Gurjant Singh Ex.C-30, photographs Ex.C-31 to Ex.C-34, copy of vehicle condition report form Ex.C-35. As against it, OPs tendered in evidence the copy of warranty information Ex.OP-1/1, copy of report of failure injector Ex.OP-1/2, copy of reply to the legal notice Ex.OP-1/3, affidavit of Surinder Monga, Incharge Ex.OP-1/4, affidavit of Reshma Ravindran Manager Legal Ex.OP-2/1. On conclusion of evidence and arguments, the District Consumer Disputes Redressal Forum Bathinda, accepted the complaint of the complainant directing the OPs to replace the injector of the car with new one free of costs taking it to be within warranty period and to give fresh warranty of the injector in question. The District Forum also awarded composite compensation and costs of litigation of Rs.10,000/- to the complainant. Dissatisfied with the order of the District Forum  Bathinda dated 09.07.2014, the opposite party no.2 now appellant has preferred this appeal against the same.  

6.      We have heard learned counsel for the parties and have also examined the record of the case.

7.      We refer to evidence on the record to determine the controversy raging between the parties in this case. The pleadings of both the parties have been duly considered by us on the record. The complainant produced Ex.C-1, which is copy of legal notice served upon the OPs and postal receipt thereof are Ex.C-2 and Ex.C-3. Ex.C-4 is extended warranty certificate to the effect that extended warranty term : additional two years after expiry of Original Warranty or up to total 80000 Kms whichever occurs earlier. For further explanation please refer the extended warranty manual terms and conditions. Ex.C-5 is the registration of the motor vehicle and Ex.C-6 is driving license of Sukhpreet Singh. The investigation report by BOSCH is Ex.C-7 on the record. This report has stated that failure of injector has been found due to water entry. It was recommended that thorough cleaning of the system from fuel tank to injector pipes may be carried out for removing of any water contents and replacement of diesel filter.  Ex.C-8 is retail invoice for purchase of the car in question by the complainant for Rs.5,64,706/- from Dada Motors Jalandahr. Ex.C-9 is sale certificate, Ex.C-10 is initial sale certificate of compliance with pollution standards safety standards of components and road worthiness, Ex.C-11 is delivery challan, Ex.C-12 is insurance policy issued by United India Insurance Company for this car, Ex.C-13 is job car, Ex.C-14 to Ex.C-28 payment of receipt of Dasmesh Taxi Stand, Ex.C-29 is  affidavit of Sukhpreet Singh complainant on the record. The complainant Sukhpreet Singh swore in his affidavit that there was starting problem in the car so purchased by him, which was under the warranty period. He took the car to Ops, but defective piece of the injector in the car was not removed by the OPs, despite warranty period. He served a legal notice to OPs but no effect. Affidavit of Gurjant Singh Ex.C-30 is also placed on the record to support the contention of the complainant. Photographs of the car are Ex.C-31 to Ex.C-34 on the record. Ex.C-35 is vehicle condition report form of the car.

8.      The OPs tendered copy of the warranty information as Ex.OP-1/1 , Ex.OP-1/2 is report of failure injector, Ex.OP-1/3 is copy of reply to the legal notice by OP no.2 to complainant. Ex.OP-1/4 is affidavit of Suridner Monga Incharge AVC Motors is on the record. He stated in his affidavit that injector of the car was sent to Chandigarh to Delphi Service Centre for expert opinion as injector of the car was of Delphi make. He further stated that as per the opinion of the expert injector was damaged due to improper use of the fuel, hence repair of the vehicle is not covered under the warranty. The contention stated in this affidavit is that the fault in the injector of the car occurred due to own negligence of the complainant for improper use of fuel, which infused water in it. Ex.OP-2/1 is affidavit of Reshma Ravindran Manager Legal by OP no.2 to complainant. She also reiterated the averments as pleaded in the written reply in this affidavit. The complainant moved application dated 31.3.2014 before District Forum for taking on the record the photographs of the vehicle, which are placed on the record.

9.      We have carefully heard the submissions of the counsel for the parties and have also examined the documents placed on the record. The main point in dispute between the parties in this case is whether the defects in the injector occurred on account of the own fault of the complainant due to his improper use of the fuel, which is outside the purview of the warranty conditions. This point is to be settled by us with the aid of the evidence on the record. The complainant purchased the car in question from Dada Motors Jalandhar on 29.1.2011 with two years warranty and this point is undisputable. Undisputedly, the complainant got warranty extended of the above vehicle on 28.1.2013 from OP no.1 and paid the requisite premium for extended warranty period of two years after expiry of the original warranty or up to total 80000 Kms, whichever occurred earlier. The complainant faced problem in the starting of the car due to defective injector of the car and hence contacted the OP no.1 on 8.10.2013 for removal of this defect. The OPs contended that the fault occurred due to misuse of the vehicle by improper use of fuel by the complainant. The complainant totally denied this fact. We find that the defect in the injector of the car took place within warranty period. The District Forum rightly observed that there is no parameter prescribed by the OPs or by petroleum company to check the purity of the fuel, which is filled in the tank of the car. A person who is not expert in the matter could not discern about the condition of the fuel, when it is filled in the tank. The complainant cannot be blamed for it because there is nothing on his part to damage his own car in question. OP No.1 opened the entire engine of the car  along with heads without knowledge of the complainant, without his consent and kept some clothes in front portion of the above-said car. The complainant took photographs of the above-said car, which have been shown to us by the officials of the OP No.1, who immediately re-jigged the engine and heads.  Original warranty period was extended for another two years and no new warranty condition was added  as per the submission  of the OPs. The Ops submitted that the defect is not covered by the warranty clauses. The complainant moved an application dated 31.3.2014 but OP denied any visit of the complainant on 24.3.2014. OP No.1 refused to replace the injector of the car, as the defect took place due to own fault of the complainant by improper use of the fuel. When complainant visited OP No.1 workshop on 24.3.2014 to take the pen-drive from the car, he found that         OP No.1 opened the entire engine of the car in question along with heads without knowledge and consent of the complainant, photographs of the car Ex.C-31 to Ex.C-34 may be referred to in this regard. The complainant observed that the officials of  the        OP No.1 have removed the major parts of the car without his knowledge and consent and thereby caused damage to the car causing diminishing in its value.

10.    From appraisal of the above-referred evidence on the record, there is no question of any deficiency or negligence on the part of the complainant being not as an expert person in the field. The complainant took the vehicle to OP No.1 for repair, but delay has been caused by OP No.1 in it. We find that OPs are deficient in not replacing the defective part of the car, which was covered under the warranty period. No person would intentionally put the fuel in the tank of his car to damage it. The plea of the OPs does not seem to be credible.

11.    In the light of our above discussion, we have come to the conclusion that order of the District Forum under challenge in this case does not suffer from any illegality or material irregularity calling for any inference therein. The order of the District Forum Bathinda dated 09.07.2014, under challenge in this case, is hereby affirmed and resultantly the appeal filed by the appellant is ordered to be dismissed.

12.    The appellant had deposited an amount of Rs.5,000/- at the time of filing the appeal, vide receipt dated 4.9.2014 and Rs.5000/-, vide receipt dated 29.1.2015. These amount with interest, if any, accrued thereon be refunded by the registry to the respondent no.1/complainant by way of crossed cheque/demand draft after  45 days from receipt of copy of this order.

13.    Arguments in this appeal were heard on 05.06.2015 and the order was reserved. Now the order be communicated to the parties.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                              (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

                                                                                 

                                                           (HARCHARAN SINGH GURAM)

                                                                          MEMBER

 

June 9   2015.                                                                

(ravi)