STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | : | 32 of 2017 |
Date of Institution | : | 22.02.2017 |
Date of Decision | : | 01.05.2017 |
M/s Dynamic Motors (Unit of RSA Motors), #27, Industrial Area Phase-I, Chandigarh.
……Appellant
V e r s u s
- Sh.Sunil Uppal s/o Sh. Vipin Uppal, R/o 490-A, Sector 61-A, Chandigarh, presently residing at House No.512/2, Phase-6, Ajitgarh Mohali.
- General Motors India Private Ltd., Chandrapura Industrial Estates, Halol- 389351, District Panchmahals, Gujarat, through its Managing Director.
- Customer Assistance Centre, Plot No.15, Echelon Institutional Area, Sector 32, Gurgaon.
...Respondents
Appeal under Section 15 of the Consumer Protection Act,
1986 against order dated 03.01.2017 passed by District Consumer Disputes Redressal Forum-II, U.T.Chandigarh in Consumer Complaint No.668/2014..
Argued by: Mr. Sandeep Jasuja,Advocate for the appellant.
Mr. Harmanjit Singh Jugait,Advocate alongwith
Mr.Abhimanyu Partap Singh Sekhon,Advocate for respondent No.1 Mr.Chanderhas Yadav, Advocate for respondents No.2&3.
Appeal No. | : | 31 of 2017 |
Date of Institution | : | 22.02.2017 |
Date of Decision | : | 01.05.2017 |
- General Motors India Private Ltd., Chandrapura Industrial Estates, Halol- 389351, District Panchmahals, Gujarat, through its Managing Director.
- Customer Assistance Centre, Plot No.15, Echelon Institutional Area, Sector 32, Gurgaon.
-Appellants
V e r s u s
1. Sh.Sunil Uppal s/o Sh. Vipin Uppal, R/o 490-A, Sector 61-A, Chandigarh, presently residing at House No.512/2, Phase-6, Ajitgarh Mohali.
2. M/s Dynamic Motors (Unit of RSA Motors), through its CEO, #27, Industrial Area Phase-I, Chandigarh.
..Respondents
Appeal under Section 15 of the Consumer Protection Act,
1986 against order dated 03.01.2017 passed by District Consumer Disputes Redressal Forum-II, U.T.Chandigarh in Consumer Complaint No.668/2014..
Argued by: Mr. Chanderhas Yadav, Advocate for the appellants
Mr. Harmanjit Singh Jugait,Advocate alongwith
Mr.Abhimanyu Partap Singh Sekhon,Advocate for respondent No.1
Mr.Sandeep Jasuja,Advocate for respondent No.2
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR.DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
This order will dispose of aforementioned two appeals bearing Nos.32 of 2017 titled as Dynamic Motors Vs Sunil Uppal & another and 31 of 2017 titled as General Motors India Pvt. Ltd. and another Vs Sunil Uppal and another, filed OP No.1 and OPs No.3 & 2 respectively, against common judgment dated 3.1.2017 passed by the District Consumer Disputes Redressal Forum-II, U.T.Chandigarh (for short ‘the Forum’ only) allowing consumer complaint bearing No.668 of 2014 filed by respondent No.1/complainant. To dictate order, the facts are being taken from appeal No.32 of 2017 titled as Dynamic Motors Vs Sunil Uppal & another.
2.. Before the Forum, it was case of the complainant that he had purchased Chevrolet Sail UVA Diesel Car on 31.12.2012 through the appellant/OP No.1 for a sum of Rs.5,89,589/-. The said car was manufactured by OP No.3. The car was delivered to him in January,2013. To purchase the above said car, he had raised loan and he continued to make payment of EMIs regularly. It is case of the complainant that immediately after its purchase, the car started giving him a lot of trouble. Facing problem, he took up the matter with OPs. His car, being within warranty, was repaired several times. However, the following defects continued to persist in the car ;
a. Engine Noise (which was from the beginning increased drastically after first month).
b. Mileage came down to 10 KM/1ltr. which was stuck down to 15 KM/1lt.
c. Oil leakage from Turbo.
d. Hose Pipes connected to inter-cooler been replaced.
e. Noise in Braking (rooter damage as per service team Dynamic).
f. Noise in car from rear.
g. Intermediately problem of car shake up while driving and engine goes off.
h. Smoke from car.
i. Water entering from the lower part from driver side.
j. Low pick-up.
k. Stabilizer shaft link replacement (twice) on 07.10.2013.
l. Front break rooter replacement on 23.7.2013.
m. Radiator inlet hose replacement on 01.07.2013.
n. Exhaust pressure sensor replacement on 18.6.2013.
o. Engine flush on 06.06.2013.
p. Crank shaft hub kit replaced.
q. Engine Assembly replaced.
3. Despite repairs having been affected, the car failed to give satisfactory running. At one point of time, engine of the car was replaced in the month of August,2013. Other problems indicated in the earlier part of the order continued to persist despite taking the car to the workshop umpteen number of times. To show that the car was put to extensive repairs, copies of the job cards are placed on record as Annexure C-6(collectively). When verbal requests to redress his grievance failed, he started to communicate with OPs through emails , copies of which have been placed on file as Annexure C-7. The number of defects indicated, and the way the car was running, makes it clear that there was manufacturing defect in the same. When his request to replace the car was not acceded to, he sent a legal notice on 8.1.2014(C-8) asking the OPs to rectify defects in the car, failing which, he would be constrained to take legal action. The legal notice was replied, however, without suggesting any solution qua the problem faced by the complainant, which led him to file a consumer complaint before the Forum on 19.12.2014.
4. It is necessary to mention here that prior thereto also, the complainant had filed consumer complaint bearing No.256 of 2014 before the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh, which was got dismissed as withdrawn on 12.11.2014, stating that there was some technical defect, the complaint be dismissed as withdrawn with liberty to the complainant to file it again, after removing the technical defect.
5. Upon notice, reply was filed by the appellant/OP No.1 and OPs No.2 & 3. The factual matrix of the case was not disputed. Claim raised by the complainant was controverted by stating that the car was brought to the workshop for repair on account of routine wear and tear. Taking note of some noise in the engine, it was replaced, as it was under warranty. It was further said that as and when any malfunctioning was indicated, the complaint was properly attended to and the defects indicated were removed. It was specifically stated that except change of engine assembly, which was replaced on account of insistence by the complainant, other parts changed were minor.
6. OPs No.2 & 3 in their reply stated that there was no manufacturing defect in the car. Their relation with OP No.1 was on principal to principal basis, they did not have any kind of fiduciary obligation with the said OP. It was further said that as per record, as and when any defect was indicated, it was rectified by OP No.1.
7. To the replies filed, complainant filed replication. Parties also led their respective evidence. The Forum, on analysis of pleadings of the parties, evidence on record, and the arguments addressed, allowed the complaint by observing as under ;
“The car in question bearing Chassis NO.MA6 SFBLACCT002216, Engine No.10B7YZ 123050117 and Registration No.CH-01-AR-2867, of the complainant was inspected by Experts/Board of Technical persons comprising Dr.V.P.Singh, Professor, Mechanical Engg. Department, PEC University of Technology, Chandigarh, Dr.Sushant Samir, Associate Professor, Mechanical Engg. Department, PEC University of Technology, Chandigarh and Sh.Gopal Dass, W.I., Mechanical Engg. Department, PEC University of Technology, Chandigarh , who after thoroughly inspecting the vehicle in question on 01.06.2016 in the Mechanical Engineering Department of PEC University of Technology, Chandigarh vide Memo No.PEC/MED/1324, dated 13.6.2016 gave report that there were number of problems in the vehicle and after inspection, test drive and perusal of records the committee is of the opinion that the vehicle has some defects which could not be rectified even after the vehicle was regularly serviced at the authorized service station of the company.
After careful consideration of submissions as well as the evidence produced by the parties before this Forum, it is established that the car in question bearing Chassis NO.MA6SFBLACCT002216, Engine No.10B7YZ 123050117 and Registration No.CH-01-AR-2867, was substandard and had major manufacturing defect since the time of its delivery to the complainant by Opposite Party NO.1. The complainant has already suffered a lot and undergone mental agony even after spending a lot of money in purchase of car. He cannot be left to the mercy of service centre/OPs any more for use of his car in roadworthy condition. The complaint as such is hereby allowed. The Opposite Parties are held liable jointly and severally for the deficiency in service of selling of defective car and as such hereby directed to replace the car in question bearing Chassis NO.MA6 SFBLACCT002216, Engine No.10B7YZ123050117 and Registration No.CH-01-AR-2867 with new vehicle of the same make to the complainant, within a period of 30 days from the date of receipt of certified copy of this order, failing which they shall be liable to refund the price of the car i.e. Rs.5,89,589/- so paid by the complainant along with interest @12% p.a. w.e.f. 1.1.2013 till realization.”
8. It was noted that functioning of the car was looked into by the experts/Board of technical persons and they have specifically observed in their report dated 13.6.2016 that there existed number of problems in the vehicle and after inspection, test drive and perusal of record, the committee was of the opinion that the vehicle was having defects which could not be rectified even after it was regularly serviced at the authorized service station of the company. It was further noticed that as per record, the car had been taken to the workshop many times. The complainant cannot be left at the mercy of service centre of OPs. Noting as above, the complaint was allowed. The old car was ordered to be replaced with a new vehicle of the same make, within a fixed period, failing which, it was said that the appellant/OPs shall refund price of the car i.e. Rs.5,89,589/- paid by the complainant with interest @12% per annum w.e.f. 1.1.2013 till realization of the amount. Hence, this appeal.
9. It has vehemently been contended by Counsel for the appellant that when giving above finding, the Forum has failed to look into evidence on record. It is stated that by the time, the order under challenge was pronounced, the car had covered/run more than 85,000Kms. It was also not noticed that the car had met with a major accident on 14.7.2016 , report submitted by the experts was put under challenge, objections were not noticed when finding was given. Further the car was inspected by the so called experts in the absence of the representative of the appellant/OPs. It was further stated that there was no manufacturing defect. The car was taken to the workshop only for routine check up and for rectification of minor defects. To say so, reference was made to the job card history available on record as Annexure C-6 at page 204 of the Forum record. It was said that the order passed is non-speaking, without looking into arguments raised and further without noticing that the vehicle has run for more than four years and covered 85,000 Kms, as such at this stage, the car cannot be ordered to be replaced with a new one. The element of depreciation in the value of the car, its use, has not been considered. Further, in the alterative, the amount paid has been ordered to be returned with interest with effect from the date of purchase of the car. It was prayed that let the order under challenge be set aside and consequently complaint be also dismissed. To the same effect, arguments were raised by the other appellant in the other appeal.
10. Counsel for respondent No.1/complainant has vehemently contended that the order passed by the Forum is perfectly justified. The car was purchased by raising loan on 31.12.2012. By now, it has been taken to the workshop for more than 42 times. Most of the time had been spent by the complainant in the workshop of OPs in getting the repairs conducted on the new car. By making reference to the experts report, it was stated that their existed manufacturing defect in the car, which necessitated its replacement with a new one. It was further said that when order was passed to get the car inspected through a board of experts, a notice was sent to the OPs to remain present at the time of inspection. However, OPs failed to come in time. All necessary procedures and rules were adopted when inspection was done by the board consisting of very senior engineers of a reputed institution opining that there existed defects in the car and those could not be rectified even after putting the vehicle to extensive repair. It was further said that at one point of time, engine assembly of the car was replaced with a new one. For getting repair of the car done, a lot of physical and mental harassment was caused to the complainant. By stating as above, it was prayed that both appeals be dismissed.
11. After hearing Counsel for the parties, we are of the opinion that both the appeals need to be allowed partly. It is an admitted fact that the car was purchased on 31.12.2012 on payment of Rs.5,89,589/-. It continued to be taken to the workshop again and again. As per job card history placed on record as Annexure C-6 at page 204 , when evidence was led, the car had been taken to the workshop for repair for 37 times, and by now visits have increased to 42. It was specific case of the complainant that there existed a large number of defects in the car. Taking note of the same, the car was sent for inspection to get an expert opinion. The inspection was conducted on 1.6.2016 and the following opinion was given by the board consisting of a Professor, Mechanical Engg. Deptt, PEC University of Technology, Chandigarh, one Associate Professor and one Works Inspector ;
“To
The President,
District Consumer Disputes redressal Forum-II
Plot No.5-B, Sector-19-B, Madhya Marg,Chandigarh
Memo No.PEC/MED/1324
Dated 13 June,2016
Subject: Expert Opinion in CC No.668 of 2014 titled as Sh.Sunil Uppal Vs M/s Dynamic and Ors.
Reference to the letter No.DF-II/No.895 dated 21.04.2016 of the Hon’ble District Forum-II, Chandigarh and our letter No.PEC/MED/11645-50 dated 13.5.2016 the vehicle in question was brought before the committee for inspection on 1.6.2016 at 10.00 A.M. in the Mechanical Engineering Department of the institute by Sh.Sunil Uppal, Complainant. Persons from Opposite Parties were not present during inspection and test drive as they did not report at the scheduled time.
The vehicle having registration No.CH01AR2867, Engine No.10B7YZ123050117, Chassis No.MA6S FBLACCT002216 was presented for inspection. The vehicle in question was inspected and test driven for 30 Kms in city and outside city limits with air conditioning system on.
After perusal of the records and discussions with the complainant, it was found that there was number of problems in the vehicle as mentioned in the application. All the problems/defects mentioned in the application were checked during inspection and test drive. The following is the observation of the committee in respect of the problems/defects mentioned in the complaint ;
- There is no engine noise
- The mileage of the vehicle is found to be 9.1 km/litre of fuel with air conditioning system on in city and outside city limits.
- There is no oil leakage from turbo.
- Hose pipe connected to inter cooler was replaced.
- There were noise while braking
- There was no noise from rear side of the vehicle
- The engine was running smoothly
- Black smokes were seen at the time of starting of the vehicle
- The vehicle having problem of low pick up while driving.
After inspection, test drive and perusal of records the committee is of the opinion that the vehicle has some defects mentioned above as the same could not be rectified even after the vehicle was regularly serviced at the authorized service station of the company.
Sd/- Sd/- Sd/-
(Dr.Sushant Samir) (Sh.Gopal Dass) (Dr.V.P.Singh)
Associate Professor W.I. Professor,
Mechanical Engg.Deptt.
PEC University of Tech.
Chandigarh.”
12. A perusal of the report indicates that no defect was found, so far engine is concerned. It was running smoothly. There was no oil leakage found in the turbo. No noise was detected in the rear side of the car. It was found that mileage of the car was less. However it was not mentioned how much mileage per litre of diesel was supposed to be given by the vehicle. Hosepipe connected to inter cooler was replaced. Black smoke was detected on start of the vehicle. There is no evidence that the fuel used was upto the mark or not. The other defects indicated were minor. When giving report, it was nowhere said that the car was having a manufacturing defect.
13. It is on record that when at the first instance, the complaint was filed and got dismissed as withdrawn on 12.11.2014, the car had covered more than 33,000 Kms. When complaint under consideration was filed, the car had run more than 44,000Kms and by the date arguments heard in the appeal, it had covered more than 85,000 Kms. The life of the car is just more than 4 years. Average running of the instant car appears to be normal, rather on the higher side than in ordinary circumstances. The Forum has failed to refer to any objection raised by the appellant/OPs against the experts’ report. From perusal of Annexure C-6 job card history, as and when the car was taken to the workshop, repair was effected, free of charge, during period of warranty, thereafter, amount was charged as per norms. When ordering replacement of the car, it was not noticed that the car had met with an accident on 14.7.2016 and it was taken to the workshop for repair, and as per available record, it was put under repair but not extensive. It was relevant to look into condition of the car. Under the above circumstances, it cannot be said that there was defect in the car to the extent necessitating its replacement with a new car.
14. Undoubtedly, the car was taken to the workshop for more than routine number it should have been taken in ordinary circumstances. A perusal of document Annexure C-6 makes it very clear that the car was taken to workshop for 42 times. Such number of visits cannot be expected of a new car in a period of 4 years. Virtually, the car had gone to the workshop each month.
15. Running of the car and its condition and accident also, depreciation of car when it was sold out from the showroom, these facts have not been considered by the Forum. The Forum should not have ordered replacement of the car, rather for causing mental and physical harassment in taking the car to workshop a number of times, compensation should have been granted to the complainant. In the absence of replacement of car by the OPs, it was wrongly ordered that full amount be paid with interest from the date of purchase. In no circumstances, interest can be levied from the date of purchase. The car remained under use of the complainant and it has covered more than 85000 Kms.
16. Under the above circumstances, both appeals are partly allowed. Order passed by the Forum is set aside. However, taking note of the facts as referred to above i.e. taking the car to the workshop frequently, appellants in both appeals/Opposite Parties are directed to pay jointly and severally an amount of Rs. One lac as compensation to the complainant towards mental harassment and litigation expenses. The above amount be paid within 30 days from the date of receipt of certified copy of the order, failing which, it shall entail interest @ 12% p.a.(simple) from the date of passing this order till such time the payment is made.
15. Certified copies of this order, be placed on the file of Appeal bearing No.31 of 2017
16. Certified copies of this order, be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion.
Pronounced.
01. 05.2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | : | 31 of 2017 |
Date of Institution | : | 22.02.2017 |
Date of Decision | : | 01.05.2017 |
- General Motors India Private Ltd., Chandrapura Industrial Estates, Halol- 389351, District Panchmahals, Gujarat, through its Managing Director.
- Customer Assistance Centre, Plot No.15, Echelon Institutional Area, Sector 32, Gurgaon.
-Appellants
V e r s u s
1. Sh.Sunil Uppal s/o Sh. Vipin Uppal, R/o 490-A, Sector 61-A, Chandigarh, presently residing at House No.512/2, Phase-6, Ajitgarh Mohali.
2. M/s Dynamic Motors (Unit of RSA Motors), through its CEO, #27, Industrial Area Phase-I, Chandigarh.
..Respondents
Appeal under Section 15 of the Consumer Protection Act,
1986 against order dated 03.01.2017 passed by District Consumer Disputes Redressal Forum-II, U.T.Chandigarh in Consumer Complaint No.668/2014..
Argued by: Mr. Chanderhas Yadav, Advocate for the appellants
Mr. Harmanjit Singh Jugait,Advocate alongwith
Mr.Abhimanyu Partap Singh Sekhon,Advocate for respondent No.1
Mr.Sandeep Jasuja,Advocate for respondent No.2
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
Vide our separate detailed order of the even date, recorded in Appeal bearing No.32 of 2017 titled as M/s Dynamic Motors Vs Sunil Uppal & Ors., this appeal has been partly accepted.
2. Certified copy of the order passed in Appeal bearing No. 32 of 2017, shall also be placed on this file.
3. Certified copies of this order, alongwith the main order passed in Appeal bearing No. 32 of 2017, be sent to the parties, free of charge.
4. The file be consigned to Record Room, after completion.
