Sri Swapan Kumar Mahanty, President.
This is an application u/s.12 of the C.P. Act, 1986.
The subject matrix of the instant case is that the complainants purchased a Maruti Eeco 5 STR A.C. Car manufactured by Maruti Suzuki India Ltd., (herein after OP1) at a price of Rs.3,78,605-16 from the authorized dealer M/s. Bhandari Automobiles (P) Ltd., 53A, Leela Roy Sarani, Kolkata – 700 019, (herein after OP2). After ten days of the delivery of the car in question it started trouble and A.C. did not function properly for which, they took the car to the OP2. On inspection of the A.C. machine Automobile Engineer told it will be proper cooling after one/two months but the problem of A.C. remained same. The representative of OP2 pick up the car on 09-05-2016, 02-06-2016, 24-06-2016, 29-06-2016, 28-07-2016, 16-06-2016, 11-11-2016, 18-11-2016 and 04-12-2016 for rectifying the defects of cooling. The technician supervisor of OP2 done road test of the car and found the grill temperature of the car remained at 11 to 13 Celsius. Finding no other alternative, the complainants lodged a complaint before the CA&FBP. A tripartite meeting was held where the representative of the OP2 wanted another chance to test the car for resolve of the AC problem. Ultimately, the proforma OP3 tested the car through their mechanic and gave a report that ‘A.C. not proper cooling’. Other problems like a big hole with rust found below the engine of the car. Complainants vide letters dated 13-02-2017 and 21-02-2017 requested the OP1 to remove the defect and/or exchange the defective car but the OP1 remained silent. According to the complainants, the car suffered from manufacturing defects for which the OPs are liable to replace the car with a new one. Hence, the instant consumer complaint before this Forum for redress of all disputes and further prays for reliefs as enumerated in the prayer portion of the complaint.
The OP1 has contested the case by filing a written version contending, inter alia, that the case is not maintainable. The specific case of the OP1 is that the liability of the answering OP under warranty, which is part and parcel of the sale contract, is specific as set out under clause 3 of warranty policy as enumerated in the owner’s manual and service booklet which states that “If any defect(s) should be found in a Maruti Suzuki Vehicle within the term stipulated, Maruti Suzuki’s only obligation is to repair or replace at its sole discretion, any part shown to be defective with a new part or equivalent, at no cost to the owner for parts or labour, when Maruti Suzuki acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture”. According to the complainants, the car in question was attended as per the warranty terms and conditions as mentioned in the owner’s manual and Service Booklet. The car of the complainants was checked and inspected thoroughly as regards to the AC problem and AC system was found to be performing as per the standards. Couple of times AC system was recharged with the appropriate amount of refrigerants as per the requirement without any charge. The answering OP1 has duly complied with its obligation as mentioned in clause 3 of warranty policy. There is no negligence or deficiency in service on the part of the OP1 and the relief regarding replacement of the car and refund of its price, as sought by the complainants is beyond the purview of the Warranty Agreement between the parties. The complainants are only entitled to free repair or replacement of defective part(s), if any, as per warranty policy. The complainants have failed to establish any case of deficiency in service or unfair trade practice as against the answering OP1.
OP2 has also contested the case by filing written version denying all the material allegations of complainants. The specific case of the answering OP2 is that neither the complainants brought the car to the OP2 on 25-12-2015 nor the OP2 inspected the car and/or gave any assurance on the alleged date. 1st and 2nd services of the car were done on 26-12-2015 and 09-05-2016 respectively. There was no complaint of AC machine and cooling effect of the car. That on 02-06-2016 complainants made a complaint that the AC is not effective and steering hardness. Check up the car, all job done and AC cooling temperature is 9 Celsius. The complainants again brought the car on 29-06-2016 with same problem. They checked the AC and found 9 Celsius again on 09-07-2016. Car in question brought to the workshop with same problem. AC gas recovery, recharging done, all parameters checked by the authorized AC mechanic of Maruti Suzuki India Ltd. AC cut off temperature found 9 Celsius. Similar complaint were made and the answering OP2 checked the car, a road test has been taken for about 45 km and found the cooling temperature was cutting at 8.5 degree Celsius in running condition. As per direction of the Consumer Affairs & Fair Business Practice the complainants did not turn up for test of the car. Warranty does not mean only replacement, it can be repaired also schedule service of the car were done, repaired it time to time and there is no manufacturing defect in the car. There was no deficiency in service on the part of the OP2 and the answering OP prayed for dismissal of the case with costs.
OP3, M/s. Royal Calcutta Automobiles did not turn up to contest the complaint case in spite of service of notice.
In the light of the pleadings of the parties the following points necessarily came up for determination.
- Are the complainants consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Have the OPs1 and 2 any deficiency in service as alleged by the complainants and are they liable in any way?
- Are the complainants entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point No.1 :
It is an admitted fact that the complainants purchased a Maruti Eeco 5 STR AC Car on 23-11-2015 at a price of Rs.3,78,605-16 from the OP2 authorized dealer of Maruti Suzuki India Ltd. Complainants are the owners of the cars in question. Therefore, we hold that complainants are the customers under the OP Nos.1 and 2 and also availed service from the OP2 upon payment of consideration. Thus, this point answered in the affirmative.
Points No.2 and 3 :
These two points are taken up together for the brevity of discussion and convenience.
We have perused the complaint petition coupled with its written version, evidence and document on record produced by the parties in respective of their cases.
We have heard the Ld. Advocate appearing on both sides. Ld. Advocate for the complainants submitted that the defects were repeatedly bought to the notice of the OPs but the said defects could not be rectified on account of which the complainants are entitled for replacement of the car or value thereof. In support of this submission he placed the following decisions.
- C.N. Anantharam – vs. M/s. Fiat India Ltd. & Others (Supreme Court of India)
- Maruti Suzuki India Ltd. – vs. – Dr. Koneru Satya Kishre & Ors (N.C.D.R.C.).
On the contrary, the Ld. Advocate appearing for the OPs submitted that the car in question was purchased on 23-11-2015 and the warranty period of two years expired on 22-11-2017. He urged that whatever deficiencies were pointed out by the complainants were rectified. He has relied upon the judgment of the Apex Court in Maruti Udyog Ltd. – vs. – Susheel Kumar Gabgotra & Another reported in (2006) 4 SCC 644 and has submitted that the liability of the OPs is to repair and replace the defective parts as per warranty. According to the Ld. Advocate for the contesting OPs the prayer for replacement of the car or payment of its value could not be ordered if only it was established that the car suffered from manufacturing defects on account of which, it was not roadworthy.
We have considered the contentions advanced on behalf of both sides as also perused the documents on record. We also perused the judgments cited by the parties. The car in question was purchased on 23-11-2015 and it was taken to the Service Centre of OP2 on 09-05-2016, 02-06-2016, 24-06-2016, 29-06-2016, 09-07-2016, 28-07-2016, 11-11-2016, 18-11-2016 and 04-12-2016 for rectifying the defects of Air Condition and the technician/supervisor rectified the cooling effect of the car in question but the complaints were not satisfied about cooling effect.
On bare perusal of clause – 3 of the warranty policy we find that “if any derfect(s) should be found in a Maruti Suzuki Vehicle within the term stipulated above, Maruti Suzuki only obligation is to repair or replace at its sole discretion any part shown to be defective, with a new part or the equivalent at no cost to the owner for parts or labour, when Maruti Suzuki acknowledges that such a defect is attributable to faulty, material or workmanship at the time of manufacture. The owner is responsible for any repair or replacement which is not covered by this warranty”.
When a manufacturing defect is alleged, the onus of proof has to be on the complainants. The complainants have produced in support of their allegation of manufacturing defect filed examination-in-chief supported by an affidavit including report of Expert dated 17-04-2017. The expert opinion indeed do not support that there is some manufacturing defect(s) in the Car in question. The complainants according to their own chose engaged OP3 for procuring expert opinion. Admittedly in the instant case, the complainants have failed to prove any evidence to prove that the car in question had a manufacturing defect either by producing the evidence of any expert or taking the opportunity of submitting an application before this Forum for appointment of technical expert to examine the car in question for an expert opinion.
Upon hearing of both sides and on perusal of the cited decisions referred by the Ld. Advocates appearing on both sides we are of the considered view that it would not be proper to order for replacement of the car in question or to refund the total purchase price of the car. But the fact remains that the complainants had to take the car several times to the service centre of the OP2 for repair and having regard to the sufferings of the complainants we are of the considered view that it would meet the ends of justice if the amount of Rs.70,000/- is awarded as compensation and Rs.5,000/- as litigation cost. We also find that there was deficiency in service on the part of the OPs1 and 2 and they could not take effective steps for proper repair of the car in question.
In the result, the case succeeds in part.
Hence,
Ordered
That the complaint case being No.325 of 2017 be and the same is allowed in part on contest against the OPs 1 and 2 and dismissed ex parte against the OP3 with litigation cost of Rs.5,000/- (Rupees Five thousand) only payable by the OPs1 and 2 jointly and/or severally to the complainants.
The OPs 1 and 2 are also directed to pay jointly and/or severally Rs.70,000/- (Rupees Seventy thousand) only as compensation to the complainants for their deficiency in service together with litigation cost within 30 days from the date of this order.
The complainants are directed to take the car in question to the authorized service centre of the OP2 within three weeks, the defective AC Machine shall be replaced and the hole with rust found below the Engine of the car shall be repaired within two weeks from the date of production of the car in question. Complainants shall not be required to pay any charge for the replacement and repair.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
