STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 92 of 2012 |
Date of Institution | : | 19.03.2012 |
Date of Decision | : | 19.02.2013 |
1] M/s. Toyota Kirloskar Motor Private Limited, 10th Floor, Vittal Mallya Road, Banglore.
2] Managing Director, M/s. Pioneer Toyota, Industrial Area, Plot No. 77, H&I, Industrial Area, Phase - I, Chandigarh, U.T.
Both through Mr. Sukhwinder Parkar, Sr. Sales Manager.
……Appellants/Opposite Parties No.1 and 2.
Versus
1] Sh. Taranjeet Singh Warar son of Sh. Balwant Singh Warar resident of Tower 5, H. No.602, Royal Estate, Zirakpur, District Mohali.
….Respondent/Complainant.
2] Reliance General Insurance Company Limited, 570, Rectifier House, Naiqaum Cross Road, Wadala (W) Mumbai.
3] Reliance General Insurance Company Limited SCO No.145-146, Sector 9-C, Madhya Marg, Chandigarh.
....Respondents/Opposite Parties No.3 & 4.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: MRS. NEENA SANDHU, MEMBER.
Argued by:Sh. S. R. Bansal, Advocate for the appellants.
Sh.Sandeep Bhardwaj, Advocate for respondent No.1.
Sh. Tajender K. Joshi, Advocate for respondents No.2 and 3.
PER MRS. NEENA SANDHU, MEMBER.
This appeal is directed against the order dated 13.02.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint of the complainant and directed Opposite Parties No.1 and 2 (now appellants), as under: -
“14] In view of the foregoings, we are of the firm opinion, that the case of the complainant succeeds and deserves to be allowed. The same is accordingly allowed with directions to the OPs No.1 & 2, to jointly & severally, repair the vehicle of the complainant, under warranty, making it fully roadworthy and to the entire satisfaction of the complainant, without charging anything from him towards repair, replacement of parts or labour charges. They are also directed to pay Rs.40,000/- as compensation to the complainant for causing him great mental agony and physical harassment, apart from litigation cost of Rs.10,000/-.
This order be complied with by OPs No.1 & 2, jointly & severally, within a period of 30 days, from the date of receipt of its copy, failing which they would be jointly & severally, liable to pay the above awarded amount, alongwith interest @ 12% p.a. from the date of filing of the present complaint i.e. 15.3.2011, till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.10,000/-.”
2. However, the District Forum dismissed the complaint qua Opposite Parties No.3 and 4 (now respondents No.2 and 3), on the ground that the repair of the vehicle, in question, did not fall under insurance policy.
3. The facts, in brief, are that the complainant purchased Toyota Innova Car on 11.8.2008 from Opposite Party No.1 vide AnnexureC-1. It was stated that the said car was duly Registered vide Regd. No.PB-22-C-6151 (Annexure C-2). It was further stated that the car, in question, was also covered under warranty, vide Warranty Card Annexure C-3. As averred, the car was serviced from time to time from Opposite Party No.2. It was further stated that the last service was done from Opposite Party No.3 vide AnnexureC-4. It was further stated that the said vehicle started giving problem from the very beginning and the same was taken to the workshop of Opposite Party No.2 on 28.10.2009 with Odometer Reading of 64717, which was within the prescribed limit, as mentioned in the warranty card (Annexure C-3). It was further stated that the complainant left the vehicle in the workshop of Opposite Party No.2 on 28.10.2009 for removing the defect. It was further stated that Opposite Party No.1, deputed an Expert Engineer to physically check the vehicle. It was stated that the Opposite Parties, vide letter dated 13.11.2009 (Annexure C-5) intimated the complainant that there was no manufacturing defect in the vehicle. It was further stated that Opposite Party No.2 did not show any report of the Technical Engineer of Opposite Party No.1, to him, who had inspected the vehicle on 5.11.2009 in the workshop of Opposite Party No.2. It was further stated that when the vehicle, in question, was handed over to Opposite Party No.2, its Official had inspected it and had mentioned in RO No.007800, dated 28.10.2009 as “HARD START IN COLD CONDITION”. It was further stated that the complainant was surprise, when the foreman/mechanics of Opposite Party No.2, could not start the vehicle in spite of swapping multiple batteries and push starting. It was further stated that the problem in the vehicle, in question, persisted, since the day of its purchase. It was further stated that the Opposite Parties advised the complainant that by afflux of time, the vehicle would be very comfortable and problem free, but the same proved to be false. It was further stated that the Opposite Parties, changed the Absorber, Shock FT RH, Sup SA FAR Suspension, Absorber, Shock FT LH, Front Absorber SET one side, Front Shock Absorber OPP. Side vide Invoice dated 13.2.2009 (Annexure C-7). It was further stated that earlier the vehicle, in question, got the identical problem and being under warranty period, Opposite Party No.2 replaced certain parts of the vehicle (Annexure C-8) free of charge. It was further stated that Opposite Party No.1, in order to cover up the manufacturing defect in the vehicle, connived with Opposite Party No.2, and therefore, put the burden of repair on the complainant, costing around Rs.2,20,775/- as per estimate Annexure C-6. It was further stated that the complainant sent notice to Opposite Party No.1 on 19.11.2009 (Annexure C-9), but to no avail. It was further stated that the complainant had informed the Insurance Company, at the time of parking the vehicle, at the premises of Opposite Parties No. 1 and 2 but they did not appoint any surveyor on the pretext of manufacturing defect in the vehicle. It was further stated that the complainant wrote letter dated 11.11.2010 (Annexure C-10), to Opposite Party No.4 to appoint a surveyor, but all in vain. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. 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), directing the Opposite Party to handover the vehicle after making it roadworthy and free of any defect; to grant a sum of Rs.7,000/- per day from 28.10.2009 till the vehicle was delivered, on account of loss in the business, Rs.25,000/- as damages on account of shock and agony and Rs.10,000/- as costs of litigation, was filed. Apart from it, separate direction was also sought against Opposite Parties No.3 and 4, to pay the repair charges as per the estimate of Opposite Parties No.1 and 2.
4. The Opposite Parties No.1 and 2, in their written version, stated that the complainant never disclosed the services enjoyed from other dealers, such as Ludhiana, Jalandhar etc. It was further stated that the vehicle was received for repair on 28.10.2009. It was further stated that the complainant was duly informed, vide letter dated 13.11.2009 that the jobs were not covered under warranty. It was further stated that since there was no manufacturing defect in the vehicle, so the expenses to the tune of Rs.2,20,775/- on the repairs, were to be borne by the complainant himself. It was further stated that the complainant had already taken accidental claim and due to that impact only, the vehicle had not been working properly and henceforth, the warranty clause came to an end. It was further stated that there was no manufacturing defect in the vehicle in question. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining allegations, contained in the complaint were denied.
5. Opposite Parties No.3 and 4, in their written version, stated that complainant had not informed them, at the time of parking the vehicle at the premises of Opposite Parties No. 1 and 2 and therefore, the question of appointment of any Surveyor did not arise. It was further stated that the complainant had not lodged any claim with Opposite Parties No.3 and 4. It was further stated that there was no manufacturing defect in the vehicle in question. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Parties No.3 and 4, nor they indulged into unfair trade practice. The remaining allegations, contained in the complaint were denied.
6. The Parties led evidence, in support of their case.
7. 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, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.1 and 2.
9. In the present case, the Hon’ble President, State Consumer Disputes Redressal Commission, U.T., Chandigarh, abstained himself, from proceedings. However, the matter was argued before the Single Bench, constituted, by the Hon’ble President, State Consumer Disputes Redressal Commission, U.T., Chandigarh, under Section 16(1B)(i) and (ii)of the Act, vide order bearing No.SC/CP-2012/3650 dated 20.12.2012, to ensure speedy redressal of grievances of the consumers, as also taking into consideration the factum that the smooth working of the Commission is not hampered with.
10. The Counsel for the appellants/Opposite Parties No.1 and 2, submitted that the complainant was not a consumer as the vehicle, in question, was purchased by him, on Hire Purchase basis, for commercial purposes and not for his personal use. He further submitted that since the complainant had alleged fraud and cheating, which require leading of voluminous evidence, therefore, the District Forum was not having the requisite jurisdiction to try the complaint case and the same was triable before the Civil Court of competent jurisdiction. He further submitted that the appellants are not liable to repair the vehicle free of costs, under warranty, as the defect HARD START IN COLD CONDITION, occurred due to earlier accident, the claim whereof, had already been taken by the respondent No.1/complainant from the Insurance Company. He further submitted that the complainant did not disclose this fact of the vehicle earlier met with an accident, either at the time of filing the complaint, nor in the previous complaint filed by him. He further submitted that the District Forum, without having a report from an independent expert, and, without considering the interrogatories, and its reply, wrongly directed the appellants, vide the impugned order, to repair the vehicle, free of costs. Therefore, he prayed that the impugned order passed by the District Forum, being unsustainable, be set aside. In support of his contentions, the Counsel for the appellants relied on the judgment of Hon’ble Supreme Court of India in case Raythara Sahakari Bank Ltd. Vs. Chandrakala R. Dass, 2007 (1) CPC Page 1 (SC).
11. On the contrary, the Counsel for respondent No.1/ complainant submitted that respondent No.1/complainant had purchased the car, for his personal use, after getting the same financed from HDFC Bank and as such, he was a ‘consumer’, as per the provisions of the Consumer Protection Act, 1986. He further submitted that mere by writing word ‘fraud’in the complaint, does not mean that the complainant had alleged specific allegations of fraud or cheating, on the part of the appellants. He further submitted that the vehicle, in question, was very much under warranty, as the same had run 64717 KMs on 28.10.2009, when it was reported for the alleged non-starting defect, which was less than 1,00,000 KMs and within 36 months of the purchase, as mentioned under the Basic Warranty Coverage. He further submitted that no doubt, there was a damage and certain minor repairs were done and radiator was replaced, qua which, the claim was duly paid by the Insurance Company, but the present defect i.e. HARD START IN COLD CONDITION was not the result of the previous damage/accident but due to manufacturing defect in the vehicle. He further submitted that as the appellants failed to prove, any nexus between the accident and the alleged starting defect, hence, their plea that the non-starting problem was the outcome of previous accident was falsified. He further submitted that since the defect in the vehicle was patent one, therefore, there was no need to obtain the opinion of any independent expert, specially when Sh. Amarjeet Singh, M/s. Arora Associates, Surveyors, Investigators & Loss Assessors in his technical report dated 05.07.2011 (Annexure R-X) clearly stated that the problem occurred to the vehicle was due to some internal problem in engine, due to normal usage. He further submitted that since the vehicle was under warranty, the appellants were duty bound to repair the same, free of costs, which the District Forum rightly ordered vide the impugned order. He further submitted that the impugned order, being well reasoned order, is liable to be upheld.
12. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, and also the written submissions of the Counsel for the respondent/complainant, carefully.
13. Although in the complaint, there is no mention that the respondent No.1/complainant purchased the vehicle, in question, for his personal use, but from perusal of Annexure C-1, it is evident that the vehicle, in question, was purchased in the name of the respondent No.1/complainant, after getting the same financed from the HDFC Bank, with which it was hypothecated. Moreover, the appellants/Opposite Parties failed to produced, on record, any document in terms of copy of Registration Certificate showing that the said vehicle was registered as a commercial vehicle. In these circumstances, the plea of the appellants that respondent No.1/complainant purchased the said vehicle on Hire-Purchase basis, for commercial use and not for his own use, is not tenable and hence, rejected.
14. So far as the next objection raised by the Counsel for the appellants, relating to fraud and cheating, is concerned, from bare reading of the contents of the complaint, as also in the absence of any document relating to the same, it cannot be said that the respondent No.1/complainant ever raised allegations of fraud or cheating, on the part of the appellants. Rather, he had alleged deficiency in service, in rendering service, on the part of the appellants. Thus, the complaint was maintainable and triable before the Consumer Fora and this objection of appellants/ Opposite Parties No.1 and 2, is rejected.
15. So far as the dispute as regards the vehicle in question, being covered under warranty is concerned, admittedly, the vehicle was within warranty, when it was reported with the problem of HARD START IN COLD CONDITION, on 28.10.2009, as it had run 64717 KMs i.e. less than 1,00,000 KMs, and that too within 36 months of its purchase, as mentioned under the Basic Warranty Coverage. However, the plea of the appellants that since the aforesaid defect occurred due to some previous accident, and the same being a consequential loss, was excluded under the warranty terms, cannot be accepted because the appellants failed to prove any nexus between the accident and the problem of HARD START IN COLD CONDITION. Even in the technical report dated 05.07.2011 (Annexure R-X), it was clearly stated that there was no manufacturing defect and the problems occurred to the vehicle were due to some internal problem in engine, due to normal usage. In the report, there is no mention that the alleged problem was due to accident. With these facts and circumstances, I am of the considered view, that the District Forum, after going through the complete record, including the interrogatories and its reply, rightly allowed the complaint of respondent No.1/ complainant, vide the impugned order, qua the appellants/ Opposite Parties No.1 & 2.
16. However, the judgment in the case Raythara Sahakari Bank Ltd. Vs. Chandrakala R. Dass, (supra) is totally distinguishable on facts. In that case, the gold ornaments were pledged with the bank, which were stolen from the Bank and it was resolved in the meeting of 400 Jewell loan borrowers that each pledger be paid @Rs.400/- per gram, which was the prevailing market rate of gold. The District Forum allowed the value of gold at Rs.573/- per gram, which order was upheld by the State Commission and also subsequently by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. However, the Hon’ble Supreme Court of India, set aside the order of the State Commission and remitted the matter for fresh decision, on the ground that various stands taken by the Bank were not considered by the authorities below.
17. Since the vehicle, in question, was under warranty and the liability to repair the same was on the part of Opposite Parties No.1 and 2, the District Forum rightly dismissed the complaint qua Opposite Parties No.3 and 4 (now respondents No.2 and 3).
18. No other point, was urged, by the Counsel for the parties.
19. The impugned order, therefore, does not suffer from any illegality and perversity, warranting the interference of this Commission.
20. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties No.1 and 2, is dismissed, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion.
Pronounced.
19th February, 2013.
Sd/-
[NEENA SANDHU]
MEMBER
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STATE COMMISSION
(First Appeal No.92 of 2012)
Argued by:Sh. S. R. Bansal, Advocate for the appellants.
Sh.Sandeep Bhardwaj, Advocate for respondent No.1.
Sh. Tajender K. Joshi, Advocate for respondents No.2 and 3.
Dated the 19th day of February, 2013.
ORDER
Vide my detailed order of the even date, recorded separately, the appeal filed by the appellants/Opposite Parties No.1 and 2, has been dismissed, with no order as to costs.
[NEENA SANDHU]
MEMBER
Ad
STATE COMMISSION
(First Appeal No.92 of 2012)
Argued by:Sh. S. R. Bansal, Advocate for the appellants.
Sh.Sandeep Bhardwaj, Advocate for respondent No.1.
Sh. Tajender K. Joshi, Advocate for respondents No.2 and 3.
Dated the 8th day of February, 2013
ORDER
The Hon’ble President has recused himself from hearing the appeal.
Vakalatnama, on behalf of respondents No.2 and 3 has been filed today.
Arguments heard.
Reserved for orders.
[NEENA SANDHU]
MEMBER
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