Haryana

Ambala

CC/84/2018

Harminder Singh - Complainant(s)

Versus

Toyota Globe Authomobile Pvt Ltd - Opp.Party(s)

04 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

 

 

                                                                      Complaint case no.         :  84 of 2018

                                                          Date of Institution           : 05.03.2018

                                                          Date of decision     : 04.02.2020

 

 

Harminder Singh son of late Shri Karnail Singh, resident of 253/3, Sector-C, defence Colony, Ambala Cantt.

……. Complainant.

Versus

 

1.  Toyota Globe Automobile Pvt. Ltd. Authorized dealer, Opp. Springfield School, Village Sadhopur, NH-22, Baldev Nagar, Ambala-Chandigarh Road, Ambala City, through its Managing Director/authorized signatory.

2.  Toyota India Head Office Address: No.24, 10^th Floor, Canerra Block, Vittal Mallya Road, Bangalore-560001, Karnataka, India, through its Managing director/authorized signatory.

 

     ….…. Opposite Parties.

 

Before:        Ms. Neena Sandhu,  President.

                   Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.

                  

                            

Present:       Sh. Nishchal Gaur, Advocate, counsel for complainant.

Sh. G.S.Antal, Advocate, counsel for OP No. 1.

Sh. S.R.Bansal,  Advocate, counsel for OP no.2.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of  following directions to them:-

1. To replace the car with the new one or refund the cost thereof, along with interest @18% per annum from the date of purchase the car.
2. To pay Rs. 50,000/- as compensation for causing mental agony and physical harassment to the complainant.
3. To pay Rs. 21,000/- as litigations expenses. 

 

382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that complainant is the son of Late Shri Karnail Singh. The deceased father of the complainant, during his life time had purchased a car Toyota Etios VD bearing registration No.HR-01-AL/0399, for a sum of Rs.7,83,000/- from the OP No.1, in the year 2015. After the death of his father he being the legal heir has every right to file the present case. At the time of the purchase of the said vehicle, OP No.1, had given warranty for the period of three years or coverage of millage of 1,00,000 kilometre, whichever occurs first. OP No.1 also assured his deceased father that the defects, if any occurred in the car will be rectified, free of cost and in case of any manufacturing defect, the car will be replaced with the new one or the cost of the car will be refunded. The vehicle is consuming more engine oil from the date of its purchase, due to defect in the engine. After covering the millage of 40,778 KMS, it was not running smoothly and cluster meter was showing light regarding low engine oil level. He went to OP No.1, for service of the vehicle. During service, no leakage of engine oil was found and quantity of the engine oil was found 1.2 Lt. After service OP No.1, told him that this problem will not occur again in future. The OP No.1, told him that the vehicle had been kept under observation and advised him to get the engine oil checked after coverage of millage of 3000 Kms. However, the said problem again occurred and he approached the OP No.1 on 21.09.2017, when it had covered the millage of 42860 Kmss. On 23.09.2017, after service, engine oil level was checked with the help of dipstick, and was found 13 mm down. OP No.1 assured that problem had been resolved and he will not face this problem in future and advised him to visit again, after coverage of millage of 3000 Kms. However, the vehicle again started giving same problem and he took it to OP No.1 on 11.10.2017, by that time it had covered the millage of 44,586 Kms. On checking, engine oil level was found 1.2 Lt. down. After service of the vehicle, OP No.1 told him that to resolve this problem, he should take up the case with the Toyota Company. After plying the vehicle about 1650 Kms, on 30.10.2017, he again approached to OP No.1, with the same problem. Despite of taking the vehicle repeatedly to the OPs, they have failed to rectify the defect. Hence, the present complaint.

2.                 Upon notice, OP No.1 appeared through counsel and filed written version, raising preliminary objections that complainant is not a consumer, not coming before this Forum with clean hands, concealing of true and material facts. It is further stated that on 13.06.2015, the vehicle in question was brought to it for routine service after coverage of millage of 1222 Kms and same was handed over to the complainant after service, but he did not complain about the engine oil consumption at that time. On 02.07.2015, the vehicle was brought to the service station, when it had covered the millage of 1758 Kms, with the problem of less cooling of the AC. This time also no issue regarding engine oil consumption was raised by the complainant. On 23.07.2018, the vehicle was again brought to it, when it had covered the millage of 3630 Kms, with the problem of sound in AC. Even, this time there was no issue regarding consumption of engine oil. The problem of noise in the AC was resolved, free of cost by replacing the AC vent kit, to the satisfaction of the complainant. On 28.10.2015, the vehicle was brought to it for accidental repair. Rear side of the vehicle was completely damaged for which customer availed insurance claim. On 05.12.2015, again the vehicle was brought for service when it had covered the millage of 10758 Kms. This time also no complaint regarding engine oil consumption was made and paid the remaining amount from his own pocket. On 29.04.2016, again the vehicle was brought for accidental repair, when it had covered the millage of 16715 Kms. This time also customer availed the insurance claim and paid the remaining amount from his own pocket. On 10.08.2016, the vehicle was brought to it for service, on coverage of millage of 20089 Kms At this time also no complaint about engine oil consumption. On 13.12.2016, vehicle was brought to it for service, when it had covered the millage of 30,332 Kms and no issue regarding engine oil consumption was made. On 31.12.2016, vehicle was again brought to it for repair, after coverage of millage of 31472 Kms. The right side of the vehicle was badly damaged and requisite repair was carried out. This time also customer took insurance claim and paid the remaining amount from his own pocket. On 03.01.2017, vehicle was again brought to it when it had covered the millage of 31473 Kms, with the complaint that paint of the door is getting off due to touch of rubber. Issue of consumption of excess engine oil was not raised. On 11.02.2017, vehicle was brought to it when it had covered the millage of 31473 Kms, for paint work. Even this time there was no complaint regarding engine oil consumption. On 18.08.2017, the vehicle was brought to it, when it had covered the millage of 40778 Kms. At this time the issue regarding engine oil consumption was raised for the first time. The vehicle was properly inspected and it was found that there was no leakage of engine oil, however for the satisfaction of the customer, he was advised to get the engine oil checked, after coverage of 3000 Kmss. On 19.09.2017, the vehicle was again brought for accidental repair, when it had covered the millage of 42859 Kms. Requisite repair was carried out. This time also the customer took the insurance claim and paid the remaining amount from his own pocket. On 21.09.2017, when the body and paint work was done, complainant asked to check the engine oil level. On checking, same was found in between the minimum and maximum level. However, complainant was advised to get the engine oil level checked, after covering the millage of 3000 Kms. On 23.09.2017, vehicle was brought to it and at that time it had covered the millage of 42865 Kms with the problem of noise in the doors. Said problem was rectified. On 11.10.2017, after coverage of mileage of 44589 Kms, customer visited it and requested to check the engine oil level. It had not only checked the engine oil level but also checked the Turbo Charger, Vacuum Pump and Intercooler of the vehicle and prepared the vehicle observation report.   After examining the vehicle it was observed that engine oil level was only 30MM below the maximum mark and there was no external damage or any abnormal engine oil leakage from the oil filter. It informed the customer accordingly, but he insisted to forward his complaint to the manufacturer i.e OP No.2 alongwith vehicle observation report, which was duly sent to the OP No.2. On 16.10.2017, it received the reply from the OP No.2 stating therein that “Thank You for reporting. Oil consumption will happen due to usage conditions, we request you to explain to customer regarding the usage conditions by referring Owner’s Manual and recommend for service after 5000 Kms (additional maintenance).” On the advice of the OP No.2, it asked the complainant to visit the OP No.2. On 30.10.2017, customer brought his car to it when it had covered the mileage of 36231 Kms. He was apprised that all the parameters of the vehicle were checked as per the guidelines of the manufacturer and as per the feedback given by the manufacturer company i.e OP No.2, that the engine oil consumption depends upon usage condition as detailed in Owner’s manual. The engine oil consumption varies, depending on the engine speed load, frequency of acceleration and de-acceleration, engine idling and driving conditions. As per the feedback given by the manufacturer company complainant was recommended to replace engine oil after every 5000 Kms. Upon the request of the complainant, the vehicle was again thoroughly checked and it was found that all the performance parameters were OK, but the condition of the three tyre of the vehicle were not good and advised to get the same replaced immediately. On 26.12.2017, the vehicle was brought to it when it had covered the millage of 51237 Kms, for scheduled service. Customer requested it to drain the engine oil and measure its quantity. On his request, the engine oil was drained out and on measuring it was found 2.8 Litre. On 17.04.2018, the vehicle was brought to it, in a damaged condition for repair of front side and the rear side, when it had covered the millage of 60,020 Kms. This time complainant did not raise any issue about engine oil consumption. Requisite repairs were carried out and . complainant availed the insurance claim and paid remaining amount from his own pocket. AC of the vehicle was set right by replacing the AC fuse. The complainant has wrongly alleged that there is manufacturing defect in the vehicle. Rest of the allegations were denied and prayed for dismissal of the present complaint with costs.

3.                Upon notice, OP No.2 appeared through counsel and filed written version, raising preliminary objections with regard to maintainability and territorial jurisdiction. On merits, it is stated that the consumption of engine oil &/or consequent replenishment to extent consumed by way of topping it up happens to be a normal &/or inherent characteristic of the machinery than a defect therein. The relevant portion of the Owner’s Manual (Maintenance & Care Section) in support hereof is extracted in manner herein below:-

1.       The amount of engine consumed depends on the oil viscosity, the     quality of the oil and the way the vehicle is driven.

2.       More oil is consumed under driving conditions such as high speeds   & frequent acceleration & deceleration.

3.       A new engine consumes more oil.

4.       When judging the amount of the oil consumption, keep in mind that the oil may have become diluted, making it difficult to judge the true level accurately.

5.       Oil consumption max 1.0 L per 1000 kilometres (1.1 quarter/600 miles, 0.9 Imp.qt/600 miles)

6.       If your vehicle consumes more than 1.0 L (1.1 qt., 0.9 Imp.qt.) every 1000 kilometre (600 miles), contact your Toyota Dealer.

The complainant mis-understood as a case of manufacturing defect which otherwise constitutes a normal incident of running, use & operation of the vehicle. On receipt of the complaint, vehicle was comprehensively inspected & found to be responding satisfactorily to the recommended parameters. The owner’s manual as such recommends checking of level of engine oil much often. The subject vehicle, carries a sophisticated self-diagnostic system which enables it to sense the level of engine oil & warning light to come alive on the instrument cluster inside in case a level dropping below recommended range. On inspection of the vehicle it was found that high engine oil consumption was due to vehicle usage conditions and not due to any manufacturing defect. It was also observed that the vehicle is driven by the complainant and his family members, which reflects that the vehicle had been used roughly. The condition of the three tyres was not found OK and the complainant was advised to get replaced the said tyres, but he did not do so. There is no manufacturing defect in the vehicle and thus, the complaint filed against it is liable to be dismissed with costs.

4.                Complainant has tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-13 and closed his evidence. On the other hand, learned counsel for the OP No.1 has tendered affidavits of Mr. Deepak Kapoor and Mr. Manoj Kumar, Group Technical Leader as Annexure R1/A and R1/B respectively along with documents Annexure R1/1 to R1/60 and closed the evidence on behalf of the OP No.1. On the other hand, learned counsel for the OP No.2 has tendered affidavit of S. Rengarajan, General Manager-Legal and Company Secretary of Toyota Kirloskar Motor Pvt. Ltd. as Annexure R2/A along with documents Annexure R2/1 & R2/2 and closed the evidence on behalf of OP No.2.  

5.                We have heard the Ld. Counsel for the complainant and the learned counsel for the OPs and carefully gone through the case file.

6.                At the outset, learned counsel for the OP No.1 and OP No.2 have raised the objection that complainant is not a consumer qua them because the vehicle in question was purchased by Late Shri Karnail Singh, father of the complainant and is registered in his name. To this effect the ld. counsel for the complainant has submitted that after the death of his father, complainant is using this vehicle and he being the beneficiary is consumer qua the OPs. In support of his version he has placed reliance on the order dated 02.02.2010, passed by the Hon’ble National Commission in the case of Dr. Neeraj Awasthi Versus Jagdish Bharti, wherein it has been held that Section 2(i)(b)(v) postulates that complainant means in case of death of a consumer, his legal heir or representative who or which makes the complaint. Legal heirs of the deceased claimant were brought on record by legal fiction and that apart, claim brought by deceased was not a claim for his personal right. Legal heirs of deceased too would be beneficiary in case complaint succeeds and hence we are driven to conclusion that right to sue petitioner is not extinguished with death of claimant.’ Considering this fact that the complainant is using the vehicle in question, after the death of his father, and the law laid down by the Hon’ble National Commission, in the case of Dr. Neeraj Awasthi (supra), this objection raised by the learned counsel for OPs No.1 and 2, is not tenable, hence rejected.

7.                On merits, the learned counsel for the complainant argued that from the very beginning of purchase of the vehicle, there is problem of high consumption of engine oil. Complainant, repeatedly took his vehicle for rectification of the problem of high consumption of engine oil, as is evident from the job sheets Annexure C-1 to C-7, but the OPs failed to rectify the said problem and he is still facing the same problem, which clearly shows that there is manufacturing defect in it. This fact got established from the report dated 23.07.2018, of the Local Commissioner, Annexure C-11. Therefore, OPs may be directed either to replace the vehicle in question with the new one or to refund the price alongwith interest. They may also be directed to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.

                   On the other hand, the learned counsel for the OP No.1 & 2 have vehemently argued that the car in question was purchased in the year 2015, however the complaint about high consumption of engine oil was raised for the first time on 18.08.2017, i.e. after two years of its purchase when it had covered the millage of 40,778 Kms. Had there been any manufacturing defect, then it would not have covered the distance of 40778 Kms. In the Owner’s Manual Annexure R1/38, it is categorically mentioned that the consumption of engine oil depends upon the usage conditions. The engine oil consumption varies depending on the engine speed load, frequency of acceleration and de-acceleration, engine idling and driving conditions. The complainant had approached the OP No.1 seven times for accidental repairs, which clearly shows that the vehicle was being driven negligently, rashly and roughly. The complainant has wrongly alleged that there is manufacturing defect in the vehicle in question. No reliance can be placed on the report of the Local Commissioner because he neither took the test drive and nor had conducted the compression test, of the vehicle in question and has prepared the report on the basis of the symptoms and merely on presumptions. Manufacturing defect cannot be ascertained without dismantling the engine. Even, the Local Commissioner overlooked the objections raised by the group technical leader of the OP No.1. In the reply to the questionnaire filed by OP No.2, the Local Commissioner has stated that after physical inspection of external engine component and exhaust system and on the basis probable causes, he arrived at the conclusion that there is manufacturing defect in the engine. However, actual cause can be determined after partly and fully dismantling the engine, but there is no such facility in this institute. No cogent and convincing evidence has been brought on record by the complainant to prove that there is manufacturing defect in the vehicle in question, therefore question of replacement or refund of the cost thereof, does not arise at all. Even, the OPs are not liable to repair the vehicle in question, free of cost because it met with accident several times and as such same is not covered under warranty policy. The complaint filed by the complainant against OPs is devoid of merits and is liable to be dismissed with costs.

8.                Admittedly, vehicle in question was purchased in the year 2015, by the father of the complainant, late Shri Karnail Singh. Complainant had raised the issue of high consumption of engine oil on 18.08.2017, i.e. after two years of purchase of the vehicle in question, after coverage of millage of 40,778 Kms. From the perusal of job-sheet dated 28.10.2015, Annexure R1/7, 29.04.2016 Annexure R1/11, 19.09.2017 Annexure R1/25, 17.04.2018 Annexure R1/42, it is apparent that the complainant had approached the OP No.1, four times for accidental repairs, which clearly shows that the vehicle was being driven negligently and rashly. In the reply to questionnaire, filed by the OP No.2, the Local Commissioner has fairly admitted that after physical inspection of external engine component and exhaust system and on the basis of probable causes, he arrived at the conclusion that there is manufacturing defect in it. However, actual cause can be determined after partly and fully dismantling the engine, but there is no such facility in the institute. Since, the report of the Local Commissioner is based on physical inspection of external engine component and exhaust system and on probable causes, therefore merely on the basis of the said report, it cannot be concluded that there is some manufacturing defect in the engine of the vehicle in question. No other cogent evidence has been adduced by the complainant to prove that there is any manufacturing defect in the vehicle in question, therefore the prayer made for replacement of the vehicle in question with the new one or refund the price thereof cannot be accepted. However, at the same time this fact cannot be ignored that the vehicle in question was brought to OPs again and again, but the problem of high consumption of engine oil, could not be rectified. It is not out of place to mention here that that the problem of high consumption of engine oil occurred during warranty, therefore it was the bounded duty of the OP No.1, being dealer/service provider and OP No.2, being manufacturer to rectify the problem either by repairing or replacing the defective parts, free of     costs. We do not find any substance in this plea of the OPs that since vehicle met with accident several times, therefore warranty became void and they are not liable to repair the vehicle in question, free of             cost, because from the job sheets referred to above, it is quite clear that        due to accident, no damage to the engine was caused. In this view of the matter, we are of the considered opinion that OP No.1 is liable to rectify the problem of high consumption of engine oil either by repairing or replacing the defective part(s) of the engine of the vehicle in question free of costs. The OP No.2 is liable to provide the new part(s) needed to be replaced, to the OP No.1, free of costs. The OPs are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.

9.                In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs in the following manner:-

1. The OP No.2 is directed to provide the new part(s) needed to be replaced, to the OP No.1 free of costs.
2. The OP No.1 is directed to rectify the defect of the vehicle in question by repairing or replacing the defective part(s), free of costs.
3. The OPs are directed to pay Rs.5000/- as compensation for the mental agony and physical harassment suffered by the him.
4. To pay Rs.3000/- as  litigation expenses.

 

                   The OPs are further directed to comply with the order within the period of 45 days, from the receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :04.02.2020.

 

 

(Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

        Member                                Member                          President

                                                                                      DCDRF, Ambala