Date of Filing: 27/12/2017
Date of Order: 02/12/2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
ARIYALUR
PRESENT: THIRU. DR. V. RAMARAJ. M.L.,Ph D PRESIDENT
THIRU.N. BALU B.A., B.L., MEMBER I
TMT.V. LAVANYA B.A., B.L., MEMBER II
C.C.(RBT) NO. 226/2022.
FRIDAY THE 02nd DAY OF DECEMBER 2022.
Mr. Prathap
S/o V. Manickam
No.325, Vivekananda Nagar,
Opposite to Ford India,
Maraimalai Nagar, 603 2019. - Complainant
//Vs//
1. The General Manager,
Ford India Private Limited,
S.P. Koil Post, Chengalpet.
Pin code - 603 201
2. The Manager, Eureka Automobiles Pvt., Ltd... - Opposite Parties
Fatima Akthar Court,
New No 453, Old No. 312
Saligramam,
Chennai.
1. Counsel for the Complainant: M/s. G. Ashok Kumar
&
Associates
2. Counsel for the 1st Opposite Party:- M/s. R. Senthil Kumar
V.V.Sivakumar & Associates.
2nd Opposite party :- Set –Exparte
This Complaint having come for final hearing before us on 10/11/2022, and upon Perusing the Oral arguments, Proof Affidavits and Documents filed by the Complainant and 1st opposite party 2nd opposite party set exparte on 25/01/2018 , this Commission passed the Following :-
ORDER
PRONOUNCED BY Tmt. V.LAVANYA B.A,B.L., MEMBER II
ADOPTED BY Dr.V.RAMARAJ M.L.,Ph.D., PRESIDENT & Mr. N.BALU B.A,B.L. MEMBER I
1. The Complaint was filed U/s 12 of the Consumer Protection Act, 1986, to direct the Opposite Parties to replace the defective car Purchased by the Complainant with a New Car of a same Brand worth Rs. 9, 64,900/- and to pay the complainant a sum of Rs. 5, 00,000/- for negligence of Service and Mental agony experienced by the Complainant, 10,000/- Legal Expenses, pass such other suitable orders and further reliefs.
2. Brief Averments of the Complainant;-
a. The Complainant states that he purchased a car (Ecosport 1.5 Diesel Titanium MT-Moon dust Silver) bearing Registration No. TN 19 AE 0748 and chassis No. MAJAXXMRK AHR 69826 vides Invoice No. PCR 17A00218 dated 15-07-2017, for a sum of Rs. 9,64,900/- excluding additional charges which had come more than Rs. 1,00,000/-.
b. The Complainant states that he paid Rs. 2, 05,000/- by way of cash and Credit card as Down Payment and rest of the amount was paid through Loan from HDFC Bank and paying an EMI Amount of Rs. 27,897/- per month for a period of 36 months.
c. The Complainant states that the 1st opposite party is the General Manager of FORD INDIA PRIVATE LIMITED, a Manufacturing Unit and the 2nd Opposite Party the Eureka Automobiles Pvt., Ltd., are the Dealers of the Ford Eco sport car.
d. The Complainant further states that the said car was delivered to the Complainant on the very same day. The Complainant belongs to middle class family; thereby he was so excited on purchasing of car and celebrating with his family members. The Complainant has chosen to purchase Ford Car after due enquiry with his friends and relatives. The Complainant was so confident about the Opposite Parties product that it made up off with quality of spare parts.
e. The Complainant submits that there was a white smoke in the vehicle on 30-09-2017, thereby he immediately rushed to the Opposite parties authorized service centre. there he left the said vehicle to rectify the problem. However, on seeing of white smoke, the Complainant was informed by the workshop that there is a problem in the engine. However, assurance given by the opposite party the authorized service centre that they will rectify the problems under Warranty Process Therefore the Complainant has sent an email your official email address by demanding replacement of engine and thereupon the engine was replaced and handed over the assurance that there will not be Complaint's car on 17-10-2017 with an assurance that there will be no problem in future. In the meanwhile, the Complainant has requested to make some arrangement by providing loaner Car for his convenience but it was not at all considered by the 1st opposite party and thereby the Complainant has spent his hard earned money for transport despite purchased new car and lying in the Service centre for more than 15 days.
f. The Complainant states that he happily took delivery and went to his mother- in- law home for celebrating Diwali but for his utter most shock, once again the car had trouble on 19-10-2017 after two days from the date of delivery and replacement of engine by showing Yellow Warning Lamp (Engine) on the display panel and AC was not working at all (Compressor was not turning On and only warm air blowing through all vents). Therefore the Complainant had verified the level of both oil and coolant and ensures that it was correct.. Thereby he contacted Mr. Bala Mobile phone bearing Bala's mobile No 81225 55019, Mechanic in Vadapalani Service Centre (Workshop) and attended personally to solve the engine defects The said Bala also promised to the Complainant that all the problems were rectified and asked the Complainant to contact him at all any problem arise. When the Complainant contacted said Bala through phone and informed about the problem, he replied that he will find out the nearest Service Centre and come back to the Complainant's line but neither called nor attended his subsequent calls and finally switched off his mobile.
g. Having no other option the Complainant chose to call Road Assistant Number - 95999 37137 and describe the above situation but they just asked whether all the wires are firmed connected and never bothered of Yellow colour warning lamp but for the Complainant it was a huge problem. At last the Complainant could find one authorized Service Centre at Salem but it was closed on account of Diwali
h, With no other option the Complainant visited the Local mechanic at Salem. The Mechanic had raised certain questions about the A/C unit and Engine, and he suggested that there might be some leakage in the valve. Finally this Complainant reached Chennai on 20/10/2017 night. Immediately on 21/10/2017 at about 11.a.m left the car at Vadapalani Service Centre for rectifying of yellow warning of engine and non working of A/c. While the facts are being so, the opposite party's authorized dealer took more than 10 days for rectifying the problem, when it was addressed as a minor problem and the Complainant was called by the in-charge of Vadapalani Service Centre and asked apology for inconvenience.
i. The Complainant states that due to the defect In Car within span of three months period lot of mental and Physical Agony has occurred in New Car However the Complainant has accepted for the replacement of engine within two months from the date of Purchase but when the problem of yellow warning lamp and non functioning of A/c arose within two days then the complainant had no doubt that the Opposite Parties have sold a defective car intentionally to cheat the Complainant .With no other option left except to seek replacement of new car the complainant is not willing to take back the defective car from the service Centre more than a month for Engine and Ac problems.
j. The Complainant states that under the above situation he was threatened and forced to take back his vehicle from the Service Centre, otherwise the car will be sent to yard and the Complainant will have face the consequences. The Complainant is not willing to take back his defective Car as he spent more than 10 lakhs by availing 80% of the amount by Loan. Therefore, the opposite parties are the sole responsible persons for sold out the defective car to the Complainant (Consumer).
k. The complainant states that he has caused legal notice to both the opposite parties, demanding to replace a new car instead of defective car. However the opposite parties having acknowledged the same and they had not come forward to retrieve the issues by replacing new car. Therefore the complainant without having any other alternative seeks indulgence of this Hon'ble Court to redress the grievance of the complainant herein. The complainant also seeks direction from this Hon'ble Forum to direct the opposite parties to replace the defective car with new car also to pay compensation to the complainant.
l. The complainant states that though he purchased a new car with his hard earned money he could not enjoy and his entire dream were spoiled by the opposite parties to sell out a defective car. Moreover, the complainant had faced lot of critics from his friends and relatives for purchasing new defective car and thereby he was put into untold mental agony. In fact, the complainant used to go by private car by spending from his hard earned money to maintain his status. The act of the opposite parties caused financial crisis and still the complainant paying his E.M.I. to the bank for purchasing a defective car without even using The complainant faced lot physical and mental agony for buying a defective car and the opposite parties are solely responsible for the same.
4 . Brief averments of the 1st Opposite Party:
a. The 1st Opposite Party submits that the Ford Esport vehicle purchased by the Complainant from the dealership of M/s. Eureka Automobiles Private Limited (2nd Opposite Party"). The Complainant raised an issue on 30.09.2017 that the vehicle was emitting white smoke while driving. It is submitted that due to the coolant issue, the Opposite Parties considering the vehicle being under warranty at that point in time and considering the age of the vehicle, decided to replace the engine with a new engine at no costs to the Complainant, instead of overhauling the vehicle which could have been more cost effective for the Opposite Parties. The said replacement was carried out with the full consent and approval of the Complainant and the vehicle was delivered in perfect working condition to the Complainant on 17.10.2017 by the 2nd Opposite Party.
b. Thereafter, the Complainant once again reported the vehicle on 21.10.2017 alleging non- functioning of air-condition of the vehicle. The vehicle was thoroughly inspected and it was found that there were no concerns whatsoever with the functioning of air-condition of the vehicle and the Complainant was requested to take delivery of the vehicle. However, the Complainant refused to take delivery of the vehicle and has to leave the vehicle unattended at the workshop of the 2nd Opposite Party.
c. It is however submitted that the 2ndOpposite Party is the authorized dealer of the 1stOpposite Party and the relationship between the 1st Opposite Party and the 2nd Opposite Party is strictly on a "principal to principal basis". It is submitted the Complainant made the purchase of the vehicle entirely of his own accord and the 1st Opposite Party states that no misrepresentations have been made to him to induce him to purchase the said vehicle.
d. It is submitted that the Complainant had reported the vehicle with the 2nd Opposite Party on 29.08.2017, after having driven the vehicle for 2,705 kms, for its first periodic maintenance service. The said maintenance service was carried out diligently by the 2ndOpposite Party and the vehicle was delivered in perfect working condition to the Complainant on the same date. It is submitted that the required service which included general check-up wheel alignment and balancing services per service schedule were carried out as instructed by the Complainant and the vehicle returned to the Complainant in a satisfactory condition
e. The 1" Opposite Party submits that they not aware of what had transpired between the Complainant and the 2ndOpposite Party on that occasion and as such is not able to come on the same. The 1st Opposite Party had in fact created many avenues recording customer concern and a dedicated customer care team and expert hotline team had been created for handling such concerns. It is most humbly submitted that the Complainant had not reported any concern to 1st Opposite Party on 19.10.2017. The 2nd Opposite Party has also informed that 1st opposite party that the Complainant had not contacted any of their officials on 19.10.2017 as stated.
f. The complainant has stated that a local mechanic suggested that there is a leakage in the valve, but contra to the statement this 1st Opposite Party submits that the vehicle does not suffer from any defect and subsequent to the replacement of the engine in the vehicle there are no issues with the vehicle.
g. It is submitted that the Complainant reported the vehicle on 21.10.2017 with Alwarpet branch of the 2nd Opposite Party complaining certain air conditioning issues allegedly faced by the Complainant on 19/10/ 2017 Accordingly, the 2nd Opposite Party took custody of the vehicle to rectify the concerns alleged by the Complainant in order to provide quality services to the Complainant. However, upon inspection by the 2nd Opposite Party, it was found that there was no issue with the functioning of air- condition of the vehicle as stated by the Complainant and the same could never be reproduced during testing. The 2nd Opposite Party despite extensive checking over a period of more than two days was not able to find anything wrong with the functioning air-condition of the vehicle and was intimated to the Complainant by the 2nd Opposite Party and he was requested to take delivery of the vehicle. However, the Complainant refused to take possession of the vehicle, raising vague and unsubstantiated allegations that there is an inherent defect in the vehicle. It is submitted that the Complainant has failed to turn up and has refused to take delivery of the vehicle.
h. It is submitted that the 1st Opposite Party, at no point in time either threatened or attempted to threaten the Complainant to take possession of his vehicle. It is submitted that the vehicle belongs neither to the 1st Opposite Party nor to the 2nd Opposite Party, but it is the property of the Complainant and accordingly the risk in the vehicle lies with the Complainant. It is within knowledge of the Complainant that several mechanical issues can arise when a vehicle is left unused for a long period of time. Neither 1st Opposite Party nor the 2nd Opposite Party could be held liable for any adverse affects arising on account of prolonged non use of the vehicle.
i. The warranty conditions provided in the Owner’s Manual clearly provide that if there is any issue in any component, the same will be repaired or replaced under warranty, the Opposite Parties have adhered to the terms and conditions of the warranty and have replaced the engine. Nevertheless, the full inspection of the vehicle was carried out by the 2nd Opposite Party, and at no cost to the Complainant, subsequent to the vehicle being reported for alleged repairs on 21.10.2017 and the vehicle was found to be in perfect running condition and the same was informed to the Complainant. However, the Complainant failed to take delivery of the vehicle with ulterior motive.
j. It is submitted that the vehicle was delivered as a brand new vehicle and is in good road worthy condition to meet the operational purpose as mentioned in the operating manual. It is submitted that the Complainant has not proved any defect in the vehicle which would substantiate his contention before this Hon'ble Forum. It is submitted that the allegations levelled by the Complainant are baseless and are speculative in nature to make false claim by filing this complaint before this Hon'ble Forum. Hence the Complaint may be dismissed with exemplary cost.
5. Points for Consideration
1. Whether there is deficiency of Service on the Part of the Opposite Parties?
2. Whether the Complainant is entitled for the Relief as Prayed in the Complaint?
A. Point No.1.
1. In pursuance of the material facts submitted by both the Complainant and the 1st Opposite party it is envisaged that the Complainant had purchased a Motor vehicle Ford Eco sport Titanium 1.5 diesel silver colour from Dealer Eureka Ford Automobiles Pvt., Ltd., Teynampet, Chennai-18 on 15/07/2017 for Rs.9, 64,900/- by obtaining loan from HDFC Bank and has been paying Rs. 27,897/-as instalment amount for the Car Loan. For a period of 36 Months. After the delivery of the vehicle the complainant is presumed to have been utilizing for his personal use.
2. It is noted that the first free service was done on 29/08/2017 and all the statutory provisions have been made out with due care as per the Vehicle Report Card of the Opposite parties, and its next service due date was given after the car reaches 10,000 k.m or on 26/07/2018. The Service Performa Invoice dated 29/08/2017 has mentioned that the car is driven for 2705 km as per the odometer reading. It is learnt that after first free service on the same day it was delivered to the Complainant.
3. The Complainant while using the car on 30/09/2017, white smoke started emitting from the vehicle and the complainant took the vehicle to workshop at 3.20 p.m the technician comments envisaged that the EGR Cooler hose puncher , coolant engine oil mixed with oil sump. So Engine Service, Valve, belt Timing, Pulley Assay Idler, Pulley Tensioner, Engine oil, coolant and Nut Hex need to be replaced and it was replaced and delivered to the Complainant on 17/10/2017 at 1.50.p.m free of cost as the Car was in Warranty Period.
4. It is observed that the complainant had taken the vehicle from the service centre happily on 17/10/2017 evening as per the Exhibit of the complainant. On 19/10/2017 the complainant took the car to native place(Salem) and he could find that Yellow warning lamp (engine) on display panel and Ac was not working compressor was not turning on and warm air from the blower through all vents were coming. Thereupon, as it was Deepavalli festival no service centre was opened and the Complainant had to check with the Local mechanic, it is the version of the complainant that the local mechanic had suggested that there might be some leakage in the valve but no substantive document has been filed to prove his contention.
5. It is learnt from the Exhibits of the complainant that on 21/10/2017 to get the issue resolved dropped the vehicle in Eureka Ford workshop vadapalani. After rectifying the defect it was ready for delivery on 28/10/2017. The Exhibit B3 service order of the 1st Opposite Party revels that 19 degree Ac cooling in Road Test found normal along with cabin temperature.
6. It is learnt that the Complainant had himself admitted that the Opposite parties are replacing all the defect parts with new one under Warranty Period. It is clearly envisaged that in Exhibit B5 Owner’s Manual stated that any issue in any component it will be repaired and replaced at no cost, under warranty terms and conditions and the opposite parties have adhered to the terms and conditions.
7. It is noted that the complainant has not taken the delivery of the vehicle after service and it is observed that the complainant had sent an email on 30/10/2017 showing displeasure and unsatisfied with the Ford Car and considered as defective piece also manufacture defect and has given the option of getting the car replaced with a new car of the same standard and cost as per Exhibit A9 and its contents. Thereupon the Complainant had sent a legal notice dated 14/11/2017 to the opposite parties to replace the defective car with new car.
8. It is observed in Exhibit A 5 dated 06/11/2017 the 2nd Opposite party has sent an mail to the complainant to take delivery of the vehicle, but it is perceived that the complainant has refused to take back the car considering it as manufacture defect. The Complainant has failed to prove that the car had Manufacture Defect by adducing Expert Opinion and to produce cogent and reliable expert evidence as to whether there was any manufacturing defect in the car. There was no evidence worth a name to buttress the contention raised. There were no such findings of any person having know-how or technical knowledge in such matters.
There are catenas of judgements to prove Manufacture defect.
9. In C.N.Anantharam vs. Fiat India Ltd. &others 2011 (1) SCC 460 in which it was observed that if Independent technical expert was of the opinion that if there are inherent manufacturing defects the petitioner would be entitled to refund of the price of the vehicle.
In Mohammed Hassan Khalid Haidar vs. General Motors India Pvt Ltd., and others 2018 CPJ 115 (NC) , it was observed that the petitioner had failed to provide any evidence to prove that the vehicle has any Manufacturing defect.
Manufacturing defect is a defect which persistently comes up and cannot be rectified even after attempts made by the Dealer. In this case the dealer had rectified the repair.
In Maruthi udyog vs. Susheel Kumar Gabgotra and another 2006 (4) SC 113 it was observed by SUPREME COURT that The Manufacturer cannot be ordered to replace the car or refund its Price merely because some defect appears which can be rectified or defective part can be replaced under warranty. This precedent appears to be fit to the above case.
In classic Automobiles vs. Lila Nand Mishra and another 2010 CPJ 235 (NC) has laid down the law that onus to prove the manufacturing defect in the vehicle lies on the complainant and further that expert evidence need to be produced to prove Manufacturing defect in the Vehicle. In the reported case it was held that the vehicle having been repeatedly brought to service station for repairs is no ground to hold that the vehicle suffered from Manufacture defect.
Hence based on the catena of judgements, it is observed that there is no liability on the part of the Opposite parties and they cannot be held for deficiency of service. Hence Point No.1 is answered against the Complainant.
B. Point No.2.
Based on the findings of the Point No.1, it is perceived that the complainant is not entitled for any relief as prayed in the Complaint. Hence Point No, 2 is answered against the Complainant.
In the result, this commission is passing following orders
1. The Complaint is dismissed as not Proved
2. No cost
Typed by Member II, Corrected by Steno and Pronounced by us in the Open Commission on this the 2nd DAY OF DECEMBER 2022.
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
Complainant side Documents:-
S.No | Date | Description | Remarks |
Ex-A1 | 04-07-2017 | Down payment receipts | Xerox |
Ex-A2 | 15-07-2017 | Vehicle sale tax invoice | Xerox |
Ex-A3 | 29-08-2017 | 1ST Service-Vehicle Report card | Xerox |
Ex-A4 | 15-07-2017 | Insurance for the Car | Xerox |
Ex-A5 | 06-11-2017 | Letter sent by 2nd opposite party | Xerox |
Ex-A6 | 17-10-2017 | Service Performa invoice for replacement of engine | Xerox |
Ex-A7 | 10-07-2017 | Loan agreement with HDFC | Xerox |
Ex-A8 | 18-07-2017 | Certificate of registration | Xerox |
Ex-A9 | | E-mail conversation | Xerox |
Ex-A10 | 14-11-2017 | Legal notice to the 2nd opposite party with postal receipts | Xerox |
Ex-A11 | 14-11-2017 | Legal notice to 1st Opposite party with postal receipts. | Xerox |
Ex-A12 | 15-11-2017 | Acknowledgement copy | Xerox |
1st Opposite Party side Documents
S.No. | Date | Description | Remarks |
ExB1 | 29-08-2017 | Copy of the repair order issued by 2nd opposite party | Xerox |
ExB2 | 30-09-2017 | Copy of the repair order and invoice issued by the 2nd opposite party | Xerox |
ExB3 | 21-10-2017 | Copy of the repair order issued by 2nd opposite party | Xerox |
ExB4 | 26-10-2017 | Copy of the technical report issued by 2nd opposite party | Xerox |
ExB5 | | Copy of the warranty conditions and service schedule of the vehicle | Xerox |
ExB6 | 13-02-2017 | Copy of the 1st opposite parties board resolution authorizing the deponent Mr.B.Srinivasan | Xerox |
Complainant side Witness;
Mr. M. Prathap (Complainant)
1st Opposite Party side witness:-
Mr. B. Srinivasan
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
