BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 14^th DAY OF NOVEMBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct them to rectify the defect i.e., noise in the doors of the vehicle, cabin noise, remove stiffness in the doors, stop leakage oil etc., from the doors in the vehicle Mercedes-Benz Car bearing registration No.KA-02-MK-7499 and to pay her a compensation of Rs.9,50,000/- for causing inconvenience and mental agony with interest @ 12% p.a from the date of purchase of the vehicle till the date of realization with cost.

2. The brief averments made in the complaint are as under:

That the OP-1 is manufacturer and OP-2 is its dealer of Mercedes-Benz cars of different types.  That the complainant depending on the advertisements and sale experience decided to purchase a ‘C’ class Mercedes-Benz Car and accordingly she purchased a Mercedes-Benz Car model C200 on 28.08.2015 from OP-2 and paid road tax and got it registered in the office of concerned RTO with registration No.KA-02-MK-7479, engine No.65192132598225.  That the said vehicle is being used by the complainant’s husband Dr.K.Rohith also and he has made correspondence with OP-2 through e-mails regarding the vehicle.  That the trouble started almost soon after the vehicle was taken home i.e., within the warranty period, by the complainant, since non-stop driver door noise started in an increasing order while the vehicle was driven.  Dr.K.Rohith could not listen to the music while he was driving in a lower volume causing mental agony to the complainant and Dr.Rohith as well.  Further there were problems of dripping of oil and doors becoming stiff.  That the complainant brought these complaints to the notice of OP-2.  Though OP-2 promptly picked up the vehicle and delivered it 2 days later, the defects continued.  This happened on quite a few occasions.  That in fact the OP-2 has even expressed regret for this.  That OP-2 is only trying to cover up some manufacturing defects in respect of this portion of the vehicle.  That the complainant has produced the relevant documents to show that the vehicle was having the above mentioned defects even after it was picked up by the OP-2 and redelivered to the complainant.  That the defects could not be removed by OP-2 which shows that there is some manufacturing defect in the said ‘beeding’ to the doors. 

That the complainant found that apart from this defect since from the date of purchasing the Car, there was constant dripping of oil from all the door-end resulting in a dark patch even though the car was not being used for almost a week.  The complainant is producing copies of e-mail exchanges between Dr.K.Rohith and OP-2 itself speaks about the manufacturing defect in the vehicle.  That the e-mail exchanges shows that the problem of ‘door noise’ started right from the date of purchase, though the said car was sent for repairs to OP-2 several times, the problem persisted and now the doors have become stiffer with leaking of oil for which OP-2 has expressed regrets.  There is absolutely no question of mishandling of the car by the complainant.  When a newly purchased car had to be sent to the repairs for several times, it is a clear case of vehicle having manufacturing defect.  That its rubber beeding is not manufactured by the company.  However the company having manufactured the door adapting the same are responsible for its proper functioning and as such OPs have sold the vehicle with manufacturing defect of the door with the beeding as it is producing unbearable noise.  That the said noise appears to be because of improper introduction of this beeding as a result the doors have become stiff. 

That the complainant has paid a heavy sum of Rs.46,00,000/- and purchased the vehicle in question.  Since from the date of purchase, it has got defects i.e., driver door noise, cabin noise, stiff doors and leaking of oils in the doors and this has caused not only inconvenience but also mental agony to the complainant and this is because of selling of defective vehicle by the OPs.  That by selling the defective vehicle and not removing the defects amounts to deficiency of service on the part of both OPs.  That OP-1 is a manufacturer and OP-2 is a dealer and service provider are liable for this deficiency of service and are liable to remove the defects and pay compensation for the mental agony, inconvenience caused to the complainant.  Since the OPs failed to set right the defects despite several visits the complainant having no other choice has approached the Forum for redressal.

3. In response to the notice issued, OP-1 entered their appearance through their advocate and filed their version contenting in brief as under:

OP-1 was set up in India by a German multinational ‘Daimler AG’ the world leader in automobile.  That OP-2 is an authorized dealer of OP-1 at Bangalore.  That the authorized dealers are responsible for sale and after sale service of vehicles and are independent entities and are not agents of Company.  That the cars manufactured by OP-1 in India are world class cars with a reputation for safety, comfort, quality and the engineering precision.  That OP-1 has exported a good part of the cars manufactured in India and earned foreign exchange for the country.  That the car purchased by the complainant on 28.08.2015 was also of international standard.  That it is explained in warranty terms and conditions that the vehicles supplied by this OP are warranted to be free from defects in material and workmanship and are generally covered under the warranty for a period of 24 months or any extended period, commencing from the date of first registration or date of sales invoice/delivery note, whichever comes earlier without mileage limitation.  This warranty shall at the option of this OP, cover and be limited to either repair of goods supplied or replacement of parts which this OP recognizes as defective.  This liability of OP-1 is limited to the value of the service, repairs/replacement of parts found to be defective within the warranty period.  Beyond servicing and or repairing defective parts in the vehicle, this OP does not undertake to replace the vehicle, refund the purchase price or reimburse the purchaser by payment of any money towards any consequential loss or damages in respect of the vehicle purchased by them.  That the Mercedes-Benz vehicles are world class with a reputation for safety, comfort and quality and engineering precision and are manufactured after great deal of research and development.  That the vehicle of the complainant was duly attended whenever any concerns arose without fail.  That the complainant is using his car extensively.  That the complainant has not disputed the fact that, the car was undergoing normal service and noise was felt while going over the potholes and rough patches.  Further the complainant’s oil leakage allegedly informed by the car cash boy was not verifiable.  OPs have attended to the concerns of complainant free of charge under warranty.  That on 03.10.2015 OP-2 has assured best support and clarified that there is no manufacturing defect in the vehicle.  That OP-2 has clarified vide e-mail dated 03.10.2015 that the concerns are operational issues and there is no manufacturing defect in the vehicle.  That the allegations are frivolous, speculative and vexatious claim made by the complainant is liable to be dismissed.

That OP-2 has inspected the vehicle thoroughly and addressed the issues raised by the complainant.  That all the concerns of the complainant have been attended free of charge under warranty.  That the door noise issue has been duly addressed with guidance of OP-1, OP-2 has confirmed to complainant that vehicle has been restored to satisfactory conditions and that body noise is dependent on usage/road condition.  That the complainant has failed to show as to how the OPs have rendered deficient service.  In so far as the issue of oil dripping from door ends, it is submitted that it was the lubricant that was found on the door hinges which was cleaned and then the vehicle was delivered to the complainant on 25.12.2015.  That, as regards the prayer for left of the vehicle satisfactorily this OP submits that all legitimate concerns of the complainant will be addressed by the OPs in a satisfactory manner.  Therefore, OP-1 prays for dismissal of complaint with costs.

4. OP-2 in response to the notice issued appeared through their advocate and filed their version contending in brief as under:

That the complainant has rushed to this Forum, without any basis and has dragged this OP to unnecessary litigation.  That the complaint is not maintainable as against OP-2.  Admittedly OP-2 is a authorized dealer appointed by OP-1 and carrying sales and service of four wheelers manufactured by Mercedes-Benz India Pvt. Ltd.  That it is true that the complainant has purchased the car in question on 28.08.2015.  That this OP has done pre-delivery inspection and after the test drive and being satisfied with the car the complainant has taken the delivery of the car.  That the said car does not have any defect as alleged by the complainant.  That body noise is depending on the driving habits, usage, speed of the car and kind of terrain the car has been driven in.  That there is no any defect in the car and it is only apprehensions of the complainant and her husband.  That at the instructions of OP-1 and at the request of the complainant this OP has put additional beeding for the doors which were supplied by OP-1.  That the allegations that car doors and automatically unlocks and tends to open and that the doors are stiff are false.  That OP-2 has sprayed anti rust lubricants to the door hinges and the excess lubricant had dripped down and same was cleaned to the complainants satisfaction and there is no leakage of oils as alleged by the complainant.

OP-2 has excellent and trained technicians who are well versed and experienced with handling of car/s.  That this OP has thoroughly checked for any problems as and when complained by the complainant and found no problem and advised them in a proper and fitting way and addressed to all their queries and clarifications.  That the vehicle in question was running smoothly and correctly without having any defects.  Therefore the complainant is not entitled for any reliefs much less the relief as claimed in the complaint.  That OP-2 is only a authorized dealer and not manufacturer of said car and the warranty is provided by the manufacturer.  That there is no any deficiency of service of any sort on the part of OP-2 and it is not trying to cover up any manufacturing defects in the car as alleged by the complainant.  That the complainant has claimed false claim as against OPs.  That this OP is always ready and willing to inspect the car and carry out any repairs if necessary.  That the said car is road worthy conditions.  Therefore, OP-2 prays for dismissal of the complaint with exemplary cost.

5. The points that arise for our determination in this case are as under:

        6. The complainant as well as OPs tendered their evidence by way of affidavit.  The complainant as well as OPs have produced certain documents in support of their respective contentions.  Written arguments have been filed by both sides.  Perused the sworn testimony of the parties to the complaint as well as documents relied upon by them and the written arguments.

7. Our answers to the above points are as under:

REASONS

8. OP-2 took up a contention that complainant is trying to establish her claim on the basis of alleged breach of contract, therefore this Forum has no jurisdiction to entertain the complaint.  Consumer Protection Act is aimed at providing better protection to the interest of Consumers and Act by itself does not create new rights and liabilities.  In fact the complaint is based on the contract of warranty, which is admittedly there between the parties.  Therefore, we don’t find any substance in the said contention of the OP-2 and we are of the opinion that, this Forum has jurisdiction to entertain the complaint.

 9. It is not in dispute that the complainant purchased Mercedez Benz Car model C220 on 28.08.2015 from OP-2 and the said Car has been registered at the concerned RTO’s office with registration No.KA-02-MK-7479.  The complainant has produced the relevant documents including the copy of tax invoice, delivery note, the letter dated 28.08.2015 issued by OP-2 and copy of registration certificate in respect of the Car in question.  The said Car is being used by the complainant as well as by her husband Dr.K.Rohith, who has made correspondence with OP-2, through e-mails regarding the vehicle.

10. The complainant states that she was desirous of purchasing a Car and depending on the advertisement and sale experience which were found to be satisfactory, she decided to purchase above said Mercedes-Bens Car.  Complainant claims that, soon after the purchase of the Car, the trouble started.  She claims that, non-stop driver door noise in an increasing order while the vehicle was being driven and Dr.K.Rohith could not listen to the music while he does in a low volume/tone causing mental agony to the complainant as well as Dr.K.Rohith.  Apart from the noise in the door the complainant also noticed dripping of oil from the door ends and doors became stiff.  The e-mail communications between Dr.K.Rohith and OPs disclose that just within a month from the date of delivery of the Car the said problems were noticed and immediately the same have been brought to the notice of both OPs.1 & 2.

11. In pursuance of the complaint received from Dr.K.Rohith the Car has been picked up by OP-2 as per pre order dated 16.09.2015 and has been delivered back after two days stating that the complaints have been attended to and the defects have been removed.  However, Dr.K.Rohith found that the defects have not been rectified and the noise in the driver side door persisted.  Immediately thereafter Dr.K.Rohith has again complained to OP-2 and on 22.09.2015 OP-2 has picked up the vehicle for attending the defects as per their pre order dated 22.09.2015 and the car has been delivered back to the complainant after three days.  Even thereafter it is noticed by the complainant that the problem persisted.

12. Again the complainant through her husband complained to OP-2 and OP-2 as per the pre order dated 30.09.2015 picked up the vehicle from the house of the complainant for attending the defects complained off and after 8-9 days the vehicle was delivered to the complainant stating that defects have been rectified.  The complainant and her husband noticed that the noise in the doors persisted, the stiffness in the doors has not been removed and dripping of oil from the door ends continued.  It is further noticed by the complainant that, the dripping of the oil from the door ends has resulted in dark patch even though when the Car was not being used for almost a week.  In their e-mail dated 03.10.2015 addressed to Dr.K.Rohith and his wife, OP-2 stated that the said Car does not suffer any manufacturing defect and assured best support.  When the complainant found that, despite several visits to OP-2 the defects as stated were not rectified by OP-2, Dr.K.Rohith by his e-mail dated 03.10.2015 requested for refund of price of the Car or replacement of the Car.  Subsequently Dr.K.Rohith has sent another e-mail dated 07.10.2015 stating that the problems in the Car still persist.  Dr.K.Rohith, kept on informing and communicating with OP-2 as to the nagging problems in the Car and in his e-mail dated 20.10.2015 Dr.K.Rohith has informed that it has become a ‘noisy affair’ therefore he would move the Consumer Court if no positive response is received.  In response to the above e-mail of Dr.K.Rohith, OP-2 by their e-mail dated 20.10.2015 have informed that necessary measures have been taken and door noise issue has been addressed with the guidance of MBI technical expert and the said problem has been completely rectified. 

13. The e-mail communication between the parties discloses as to how the complainant and her husband were made to make several visits to the office of OP-2 for getting the problems attended that too within a span of 2-3 months from the date of purchase.  The said Car was taken to the garage of OP-2 for repairs more than 4-5 times.  As stated by the complainant, she purchased the said Car believing the slogan of OP-1, “BEST OR NOTHING”.  OPs.1 & 2 claims that Mercedez-Benz vehicles are world-class with a reputation for safety, comfort, quality and engineering precision and are manufactured after great deal of research and development.  It is also claimed by the OPs that the Cars manufactured by the OPs undergo stringent quality checks at every stage and have received certification from international agencies.  Despite the said claim of the OPs, the fact remains that within a few days from the date of delivery, the Car in question developed the above mentioned problems which the OPs failed to rectify despite taking the Car for repairs several times.

14. The complainant who has purchased the said luxury Car by paying a huge sum of Rs.46,00,000/- certainly would not be satisfied by finding the above mentioned defects.  Though the defects does not appears to be major one but the complainant has lost the satisfaction of owning luxury Car.  The loss of satisfaction would be much more in such cases when the persons buys vehicle with their hard earned money.

15. During pendency of the case, on 19.03.2016 complainant submitted that, Car is given to OP-2 for attending the defects.  The advocate for OPs.1 & 2 who were present in the Court submitted that the problem in the Car has been attended to and requested for joint inspection.  The advocate for the complainant was directed to report as to whether the repairs are done to the satisfaction of the complainant.  On the next date of hearing Dr.K.Rohith submitted that though the problems have been attended to but not to their satisfaction and as per the standard protocol.  Then advocate for OP-1 who was present in the Court hall was directed to attend to the repairs immediately and get it compared with another similar Car of the same model and year and both the parties were directed to report the result to the Court on the next date.  On 16.05.2016 the complainant submitted copies of two letters so also advocate for OP-2.  After hearing the complainant as well as advocate for OP-2, we directed the complainant to produce the said vehicle to service centre of OP-2 on 21.05.2016. 

16. The parties were directed to compare the vehicle of the complainant with a similar vehicle.  Accordingly the complainant produced the vehicle at the service centre of OP-2 on 21.05.2016 and the same has been tested and compared with a similar vehicle belonging to one Dr.Manoj.  On the next date of hearing OP-2 submitted joint inspection report.  The observation at para-2 of the report of OP-2 is relevant and it is as follows:

(i) -

(ii) During road test minor noise was observed on the roof of the customer’s vehicles on rough road.  This noise could be due to accumulation of dirt and dust.  This noise can be eliminated by cleaning the dust accumulated in the roof.  This was never reported by customer in any of his earlier visit to the dealership.  This was also informed to the customer.

(iii) -

17. The husband of the complainant Dr.K.Rohith has also got the Car inspected and produced his report.  However, the said report is not signed by the representatives of OPs.  The complainant in para-13 of her affidavit asserted about the same and same is not disputed by OP-2 in their affidavit.

18. From the report, it is evident that, rubber beeding is present in the Car of the complainant as well as in the Car of Dr.Manoj, however a slender second beeding is inserted on the top of the doors in the complainant’s Car.  However, no such second beeding is present in the car of Dr.Manoj.  The complainant denied that she requested for the second beeding.  The necessity of insertion of the second beeding in the door of the complainant Car itself indicates that, the doors suffers from manufacturing defect.  Even after the insertion of the second beeding the noise in the door has not subsided completely.  Complainant asserted in her affidavit evidence that even after insertion of slender second beeding the door noise has not subsided.

19. Even though in the observations of the report of OP-2, it is stated that a minor noise on the roof of complainant’s vehicle was noticed while driving on the rough terrain and accordingly it could be due to accumulation of dirt and dust cannot be believed as the said Car is brand new Car.  It appears to us that, the OPs are only trying to make light of the issue.  A Car purchased at a cost of Rs.46,00,000/- and said to be of an international standard should not produce any such noise even on rough road.  The material placed on record discloses that despite several services provided by OP-2 in this regard the defect has persisted.  In this regard the complainant placed reliance on judgment rendered by Hon’ble Apex Consumer Court in a case of Hyundai Motors India Ltd., decided on 29^th November 2007 wherein the Hon’ble National Consumer Disputes Redressal Commission while dealing with a similar issue have opined as under.

“IN our view, as stated above, the car was required to be repaired on several occasions.  The car was, all through out, emitting smoke which defect could not be rectified by the Petitioner.  The Petitioner, in its reply to the complaint filed before the District Forum, admitted that that the car was delivered to the Complainant in good running condition after carrying out repairs and the Complainant had expressed his satisfaction with the repairs on several occasions.  In our opinion, from the admission made by the Petitioner it is clear that the vehicle had gone to them on several occasions for repairs.  In our view, there is no necessity for a new car to go to work shop “on several occasions” for repairs within a short span of one year of its purchase.  As stated above, with such a vehicle the consumer would not be satisfied.  Maybe that such defects may occur in one out of thousand vehicles but, at the same time, it is the duty of the reputed/established manufacturer to replace such a vehicle.  We cannot lose sight of the fact that vehicles which emit smoke beyond the specified levels, are not allowed to ply on the roads”.

20. In the instant case on hand the Car in question has been attended to about 7 times within four months from the date of purchase and every time though it is stated that the defect has been attended to, but the defect has persisted, which is evident from the e-mail communications of Dr.K.Rohith.  The fact that the Car was required to be repaired on several occasions itself indicates that the doors of the Car are defective and the said defect could not be rectified by the OPs, despite attending on it more than 7 times.  The OPs cannot contend that the vehicle in question had no defect, as alleged by the complainant, just because the vehicles manufactured by OP-1 undergoes various stages of check, due certification etc.  These contentions of OP-1 are too general in nature and lack substance.  As held in the above cited authority even in cars manufactured by the reputed company defects may be arose one in thousand cars.  The contention of the OPs that the defects, if any, are operational in nature cannot be accepted in view of the discussions made above.

21. The OP-1 in their version contended that, if complainants still disputes the quality of the car the vehicle may be referred to Automotive Research Associations of India, an appropriate laboratory notified under Section 13 of the Consumer Protection Act.  It is pertinent to note here that in the case on hand the defects does not pertain engine or any other electrical or mechanical parts of the vehicle.  The defect pertains to door noise and leakage of the oil.  Only when the defects alleged cannot be determined without proper analysis or test the question of referring the Car to the laboratory would arise.  Therefore, we are of the opinion that, there is no substance in this contention of OP-1.

22. OP-2 in their version contended that they are only an authorized dealer and not manufacturer therefore they cannot be fastened with any liability regarding the alleged defects in the Car.  There is no dispute that OP-2 is an authorized dealer.  Merely because OP-2 is not a manufacturer they cannot be absolved from their liability for the defects found in the vehicle.  Time and again the Hon’ble National Consumer Disputes Redressal Commission as well as Hon’ble Supreme Court have held that both manufacturer as well as dealer are responsible in a matter like the one on hand.

23. When OP-1 sells its vehicle with a slogan “BEST OR NOTHING” they should have taken immediate steps to rectify the defect without allowing the issue to be precipitated to this extent and forcing the complainant to approach the Forum by spending her precious time and money.  In view of the fact that the defects in the door as well as oil leaking still persists, the OPs are liable to rectify the defects if necessary by replacing the doors.  The OPs are legally bound to remove the defects without any further delay.  The conduct of OPs in failing to rectify or remove the defects despite several visits amounts to deficiency of service on the part of the OPs.  The complainant must have been put great inconvenience, harassment and lot of mental agony due to the said defect in the vehicle which were noticed soon after purchasing of the Car which they bought by paying a huge sum of Rs.46,00,000/- and which were not rectified even after multiple visits to the service centre.  Therefore, we feel it appropriate to award compensation of Rs.5,00,000/- to the complainant to be paid by OPs.  Accordingly point Nos.1 & 2 are answered.

24. The order could not be passed within the stipulated time due to heavy pendency. 

25. In view of the discussions made above, we proceed to pass the following:             

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are here by directed to remove/rectify the defect in the doors, oil leakage to the satisfaction of the complainant, if necessary by substituting the doors.  The OPs are further directed to pay compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the complainant for deficiency of service resulting in great inconvenience, harassment and mental agony caused to the complainant together with litigation cost of Rs.10,000/-.

OPs shall comply the said order within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 14^th day of November 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 08.06.2016.

1. Dr.Thungabadra Rao,

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-1 - Nil

Documents produced by the Opposite Party-1:

Witnesses examined on behalf of the Opposite party-2 dated 27.06.2016.

1. Sri.S.Rajendra Prasad.  

Documents produced by the Opposite Party-2:

MEMBER                           MEMBER                     PRESIDENT

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