Dt. of filing- 07/06/2017

Dt. of Judgement- 28/01/2020

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is  filed by Rakesh Kumar Choudhury under Section  12 of the  Consumer Protection Act alleging deficiency in service on the part of the Opposite Parties namely – (1)The Executive Director ( Service ) , Maruti Suzuki Indi Pvt. Ltd. (2) The Auto Hitech Pvt. Ltd., service through the Managing Director , (3) The Works Manager, Auto High Tech Pvt. Ltd.

          The case of the complainant in short is that  he purchased a Swift Desire Tour Car Chassis No. 5034184, Engine No. 5172701  from the OP No.2 at a price  of Rs. 6,04,326.23. The car was delivered to the   complainant  on 30.10.2015 with period of warranty  for  24 months or  40,000 Kms. Whichever occurs first. At the time of the  first service of  the said car on 17.11.2015, it was  found  that the  level of the engine oil   was  down level of the deep stick. So the complainant requested  the  OP No. 3  to  change the engine oil. But he was informed  by the OP No.3 that the engine oil was  out of stock and assured the complainant that the same will not be a problem  to run the car.  On the  2^nd  and 3^rd  services  also i.e. on 03.12.2015 & 28.12.2015 respectively, the complainant  was given  same assurance.  On  21.03.2016 there was  some noise in the engine of the said car and so some parts  were replaced in the  workshop  of the  OP No.3 at a charge  of Rs. 858/-. But inspite  of  the replacement, noise in the  engine  continued. So  complainant  visited  the OP No.3 to top up the engine oil  to minimise  the sound but again he was told that the engine oil   was not available  and was  asked  to contact  later. Finding no other alternative, complainant topped up the engine oil  of the car  from a reputed  auto engineering works outside the workshop of the OPs. Thereafter, all on a sudden the problem  regarding  noise of  the engine again started. So  when  the car was taken, OP no.3,  replaced the  engine  oil  along with  various other parts  of the car  and raised  bill of Rs.28,889/- in spite of the  car under the warranty  period. OP refused  to give any warranty  benefit. So complainant was  compelled to pay  the said amount on  29.04.2016. The car was sitting idle at that time for more than  15 days  for which the complainant  suffered a loss of Rs. 40,000/-  as  the complainant  runs the said vehicle  under OLA Service . OP No.3  was bound  to change the  engine oil  during the free service on the request of the complainant but due to non-availability  of the engine oil,  same was not  replaced. During the  warranty period,  OP Nos. 2 and 3, did not take  care of the said car,  which amounts to deficiency in service and thus the present  complaint has been  filed  against the OPs praying for  directing them to allow warranty  benefit to the complainant over the said car  and on the job done dated 29.04.2016, to pay back Rs.28,889/- with interest, to pay compensation  of Rs. 40,000/- and the cost of the proceedings.

          Complainant has annexed  with the complaint, warranty  relating   to vehicle  concerned, Invoice  of  purchase, document relating to  free services,  cash memo  dated 16.04.2016 issued  by  OP No.3,  copy of   e-mails, copy of cash memo issued by   Disha  Auto Engineering  Works  and the bill/cash memo  issued by OP No.3.

          OP  No.1 has contested  the case by filing  the Written Version denying and disputing  the allegations contending inter alia   that the warranty is not absolute and is subject  to certain  terms and conditions  and limitations  as  enumerated in owner’s manual  and service booklet. Complainant did not  get  the vehicle service  as per  service schedule  which is one of the  most  essential conditions for  obtaining  and claiming the warranty service. Complainant also  got vehicle  checked, handled and operated  by the unauthorised  and unqualified  local  mechanic and thus violated terms of warranty. Complainant  during his first, second and third  free services of the vehicle did not report  issues  of engine oil  consumption. Hence, question of  giving any  false assurance that it was not  a problem,  did not arise. So, the OP No.1 prayed for  dismissal of the case.

 OP No.2 and 3 have also contested  the case by filing a separate  Written Version  denying  and disputing  the allegations  contending  specifically  that   on 17^th November, 2015 when  the complainant first attended the workshop  with the  vehicle,  that point of time  complainant  requested  to top up the engine oil  which was not  required at  that  point of time. At the  relevant  point of time  there was  stock of engine oil as per stock ledger report of  OP No.2  and thus the claim of the complainant  that  there was no  engine oil,  is completely false. The  vehicle  history of the vehicle  in question  reveals  that the complainant   attended   three free  car services and it was  rendered  by the OP Nos. 2 and 3   on different dates. Complainant  never made any allegations  of manufacture  defect of the car  in question. So, the OP  Nos. 2 and 3  have also prayed  for  dismissal  of the case.

          During the course of the trial, both the parties filed  their respective  affidavit in chief   followed by filing of questionnaire  and reply thereto.   Ultimately, argument has been advanced by both the parties. Brief Notes of Argument has also been filed by the  OP No.1. It has been  argued  by the Ld. Advocate  on behalf of the OP No.1 that the warranty  conditions  in this  case  was specifically  stated. It is not a case of any manufacturing defect. He has cited   the case law reported in 1 (2009) CPJ  270 (NC) and 1 (2006) CPJ  3 (SC).

          So, the following  points determination :-

1.    Whether there has been  any deficiency in service  on the part of  the Opposite Parties ?
2.   Whether the complainant is entitled  to the relief as prayed for ?

Decision with reason

          Both the points are taken- up together for a comprehensive discussion.

          At the very outset it may be pointed  out that the Opposite Parties  had challenged the maintainability  of the complaint  on the ground that the complainant was not a consumer. Said petition was  heard and disposed  of  by the Forum vide order dated 12.10.2017 rejecting  the petition and against the said order, a revision was  preferred  by  the OPs before the Hon’ble State Commission. Even though copy of the final order passed by  the Hon’ble State Commission has not been filed but complainant  has categorically stated in his  affidavit- in- chief that the  said revision  was rejected by the Hon’ble State Commission. Apart from this, complainant has stated in his  affidavit-in-chief that he is using the vehicle in question through  Ola service for earning his livelihood  to  run his family. He has his old and ailing parents,  wife and children to be maintained  and to earn  livelihood, he uses the said vehicle for commercial purpose. So on consideration of the same, it is evident that complainant is a consumer under the explanation  to Section 2(d) of the Consumer Protection Act.

Coming to merits of the case, it appears that complainant has mainly claimed  that the car in dispute on its purchase  was delivered to the complainant on 31.10.2015 with a warranty for  24 months  or  40,000  Kilometres , whichever occurs first. Car was taken  for its free service at first on 17.11.2015 when it  was found that  the level of engine oil was  at down level at the deep stick and so  complainant requested the Opposite Party  No.3  to  change the  engine oil but he  was  informed by OP No.3 that   the engine oil was  out of stock. Same thing  happened  during  2^nd and 3^rd  service  but OP No.3 again said that  the engine oil was out of  stock and complainant was  assured by OP No.3 that the same is not a problem to  run the  car. On visit on 21.03.2016 with the complaint of noise from engine, some parts were  replaced by OP No.3 in the subject car at a charge of Rs.858/- but  sound from the engine  continued and when  complained to OP, complainant was asked to  contact later due to non-availability  of engine oil. So the complainant has claimed  that  due to non-availability  of  engine oil in the workshop of OP No.3 and as the engine oil was not top up, he  had to pay a bill of Rs. 28,889/- and   had to keep his  vehicle  with the OP No.3 for  more than  15 days for which he suffered  financial loss. His  car was in the workshop of OP No.3 from  16.04.2016 to  29.04.2016. On the other hand it has  been urged by the OP Nos.  2 & 3  that the engine oil  was very much available  and is  evident  from the  stock  register maintained by  the said  OP. OPs have also filed the copy of the  ‘vehicle history’  of the vehicle in question.

          It may be pertinent to point out that neither the complainant nor the OP have filed the job card. The ‘vehicle  history’  filed by the OP is admittedly  maintained by OP  Nos. 2 & 3 in their  computer system. It is  admitted by  the OP Nos. 2 & 3 in their reply to questionnaire  filed by the complainant that the complainant has got no  access to the said vehicle history maintained  by OP Nos. 2 & 3 in their  electronic  system. In the ‘vehicle history’ it is stated  on its  1^st  & 2^nd  free  service that  “Engine oil & oil filter replacement not required”  and in the  3^rd  service it is stated “engine Oil & oil filter/air clear element/oil drain plug  replaced”.

          On a careful scrutiny of the affidavit –in-chief  filed by the  OP No.2 & 3 it appears  that they have stated that on the date of 1^st  free service  i.e.  on 17.11.2015, complainant when attended the  workshop of the OP No.2 & 3 being the dealer of OP No.1 and thereafter also, when free  service was given  by OP No 2 & 3 complainant never made  any allegation. Even though  in the  ‘vehicle history’ there is no mention about the complain of the complainant that the engine oil was at down level but  in the written version filed by the OP Nos. 2 & 3it is categorically  stated that “complainant requested to change the  engine oil, which was  not required   at that point of time”. It is strange that OP No.2 & 3  have stated  that the complainant did complain about issue  of engine oil  consumption  but  OP No.1 has  stated in its  written version that the “ complainant  during  first, second and third free service   of the vehicle, did not report the issue of engine oil  consumption”. So the OPs are  contradicting  each   other which strengthens  the  claim  of the  complainant  that engine oil  was at down level and he had complained about it but he was given assurance by the OP No.3 that it will not be a problem to run the car. The document or the  copy of stock register filed by the OP Nos. 2 & 3  is the document to  which only OPs  had access  and is maintained by them. Why the  grievance or complain of the  complainant about  issue of  consumption of engine oil was not attended by the OP No.3, is  within the  knowledge of the OPs only but because as per the stock, OPs had the  engine oil that by itself is no ground to  discard the claim of the  complainant that  the level of the engine oil was down and inspite of him complaining , OP No.3 did not  look into the  matter to top-up the level.

          Opposite Parties have  further contended that they  refused the  free service or the warranty  for the job  done subsequently in the  vehicle  because the vehicle had  missed a schedule  service   as prescribed  in the owner’s  manual. At the  time of  argument  Ld. Counsel for OPs has also argued that the  complainant  violated the terms of warranty as  he got the  vehicle  repaired  or adjusted by an outsider  or  an unqualified  local mechanic.  Whereas  according to the complainant that  inspite of  repeated  complain, OP No.3  could not replace the engine oil  stating that it was out of  stock and also did not  make  any arrangement, finding no  alternative,  he  top up the engine  oil of the car from  one reputed  auto engineering works. In this context,  it may be mentioned here that as  it has already been discussed  above that complainant did agitate the issue of consumption  of engine oil  and  it was in down level  when  the vehicle was  taken for its free services  initially  but the OPs did not  replace or  top up the engine oil, it  cannot be  expected that  complainant  would keep the vehicle stranded without plying it. Vehicle  is run  as OLA  Cab  and  is the source of the  earning of the  complainant for him and his family’s livelihood.  So the  topping up the engine oil by  the  complainant from outside is  due to non-performance of  terms of warranty by the OPs at first as they did not  take care of the issue of consumption of engine oil. In such a situation, since admittedly bill of Rs.28,889/- was paid by the  complainant to OP  No.2  & 3, during the warranty period,  he is entitled to   refund  of the said sum and as the vehicle   was stranded for more than  15 days in the workshop of the OP, as a result complainant did suffer financial loss, he is further entitled to Rs.  15,000/-  as compensation. It will not be out of place to mention  here  that the  case law of Maruti Udyog  Ltd. – vs. -  Atul  Bharadwaj  and Others, relied  upon by the  OP, is not  applicable in the given facts  and situation of this  case. In the  said case it appears  that  the   relief of  replacement  of vehicle  on the ground of  manufacturing  defect   was  sought  for  but same is not the position in this case.  Complainant in this case has only sought for the relief  to pay back the amount paid  during the  warranty period of vehicle  and  compensation  for the period,  car was stranded  in the workshop of OP No.3. In the said case law also, complainant  was  allowed the  compensation  by the Hon’ble NCDRC.

Hence

                       Ordered

          CC/301/2017 is allowed on contest. Opposite Parties are directed to pay back  Rs. 28,889/- and Rs. 15,000/- as compensation and litigation cost of Rs. 10,000/- within two months  from the date of this order  failing which  the entire sum shall carry  interest  @ 9% p.a. till realisation.