Punjab

Patiala

CC/19/308

Om Lalit Gupta - Complainant(s)

Versus

Toyota Kirloskar Moter PVT LTD - Opp.Party(s)

Sh Surinder Mohan Goel

03 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

 

                                     

Consumer Complaint No.	:	CC/ 308/2019
Date of Institution	:	14.8.2019
Date of Decision	:	3.5.2023

 

Om Lalit Gupta aged 61 years, son of Shiv Om Gupta, resident of H.No.287, Phulkian Enclave, Patiala, Punjab

 

                                                                   …………...Complainant

                                      Versus

1. Toyota Kirloskar Motor Pvt.Ltd. through Mr.Masakazu Yoshimura its Managing Director/Vikram S.Kirloskar its Vice Chairman.
2. MGF Toyota MGF Toyota, Capital Vehicles Sales Ltd. 15-A Institutional Area, Sector 18, Gurgaon- 122006.

 

                                                                   …………Opposite Parties

 

Complaint under the Consumer Protection Act

 

 

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi, Member        

 

 

PRESENT:                   Sh.S.M.Goel, counsel for complainant.

                             Sh.M.S.Sethi, counsel for OP No.1.

                             Sh.Manpreet Singh, counsel for OP No.2.                    

 

                                     

 ORDER                                          

1. The instant complaint is filed by Om Lalit Gupta (hereinafter referred to as the complainant) against Toyota Kirloskar Motor Pvt. Ltd. and another (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).
2. The averments of the complainant are as follows:
3. That Op No.1 is manufacturer of the product of the Toyota Brand Cars/SUV vehicles and OP No.2 is seller of OP No.1.
4. Complainant purchased Toyota Yaris 1.5J-HSN Code:8703, bearing Vehicle ID No.MBJV23F3707010028 08/18 bearing engine No.2NR X339401, for a sum of Rs.8,75,000/-on 11.9.2018  from OP No.2, with the warranty of 12 months from the date of sale on behalf of the manufacturer. Temporary certificate of registration on payment of Rs.300/-  for the said vehicle alongwith other documents such as Form 21-Sale certificate, Form 22- Initial certificate of compliance with pollution standard, safety standard of component quality and road worthiness were issued to the complainant. Complainant also purchased private car package policy-enhanced cover on payment of Rs.21,296/- dated 11.9.2018 valid up to 10.2.2019.
5. While availing first free service of the vehicle in question on 8.10.2018, it was brought to the notice of representative of the OPs that engine of the vehicle suddenly stops working and that ignition of the vehicle is to be switched on again but the said problem was not rectified for which the vehicle was repeatedly handed over to the authorized service centre of the OP on 14.11.2018, 17.11.2018 and on 24.4.2019.Complainant also sent e-mail dated 15.4.2019 to the OPs in this regard. Even the engineers of the OPs failed to set right the problem in the car in question. There is thus, manufacturing defect in the vehicle. Complainant demanded refund of the full amount of Rs.8,75,000/-, show room price of the car in question and also the payment of premium of Rs.21,296/- paid by the complainant to New India Assurance Co. Ltd. for the insurance of the said car. Time and again complainant sent email dated 1.5.2019 and 2.5.2019, 12.5.2019, 25.5.2019 to the OPs and their higher officials with regard to the defective vehicle sold by them but of no avail. Complainant also took his car in question to the authorized service centre for setting right the defect but the OPs failed to remove the defect. There is thus deficiency in service and unfair trade practice on the part of OPs, which caused mental agony and harassment to the complainant. Consequently, prayer has, thus, been made for acceptance of complaint.
6. Upon notice, OPs appeared through their respective counsels and filed their written statements having contested the complaint.
7. In the written statement filed by OP No.1, it raised certain preliminary objections to the effect that complainant has purchased the said vehicle from the funds of its company namely M/s Gupta Mechanical & Sundry Stores, Patiala in which complainant is one of the director, as such the vehicle in question is being used for commercial purposes.
8. Further submissions of OP No.1 are that technical expert of OP No.1 has thoroughly investigated the vehicle and had given concrete findings that there is no manufacturing defect in the vehicle.
9. On merits, purchase of the vehicle and insurance of the same is admitted. It is submitted that Pioneer Toyota sent email dated 25.5.2019 to the complainant to bring his vehicle on Monday i.e. 27.5.2019 for required inspection but the complainant refused to visit the dealership. Complainant visited dealership on 28.5.2019 as well as on 29.5.2019 where Toyota Kirloskar Motor inspection team captured the data on the basis of grievances of the customer regarding stalling of vehicle, sometimes, and found that there is no manufacturing defect in the vehicle. The said car of the complainant is in good running condition. He is not entitled for refund of the price of the car in question. After denying all other averments made in the complaint OP No.1 prayed for dismissal of complaint.
10. In the written statement filed by OP No.2 it also raised certain preliminary objections. On merits, submissions of OP No.2 are that it is involved only in sales of vehicles and spare parts. It is only an agency of OP no.1 and there is a principal agent relationship between OPs No.1&2. OP No.2 is not involved in any manufacturing of any vehicle. No correspondence whatsoever has been made by the complainant with OP No.2. No assurance was ever given by OP No.2 to the complainant as alleged by him. There is no deficiency or unfair trade practice on the part of OP No.2. After denying all other averments, OP No.2 prayed for dismissal of complaint.
11. In evidence, complainant tendered his affidavit,Ex.CA, copy of tax invoice,Ex.C1, copy of Form 20,Ex.C2, copy of Form 21 sale certificate,Ex.C3, copy of temporary certificate of registration,Ex.C4, copy of sale certificate,Ex.C5, copy of form 22 certificate of compliance,Ex.C6, copy of insurance cover note,Ex.C7, copy of warranty repair note,Ex.C8, copy of tax invoice,Ex.C9, copy of detail of receiver,Ex.C10, copy of tax invoice,Ex.C11, copy of tax invoice,Ex.C12, copy of letters Exs.C13 to C23, copy of tax invoice,Ex.C24, copy of tax invoice,Ex.C25, copies of lettes,Exs.C26 to Ex.C28, print out copy of advertisement on the website,Ex.C29 and closed evidence.
12. On the other OP No.1 tendered in evidence, Ex.OPA affidavit of Vinay Bhagawan, DN of OP No.1 alongwith documents, Ex.OP1 copy of report dated 31.5.2019, Ex.OP2 various photographs of the vehicle (four pages), Ex.OP3 copy of history sheet (four pages), Ex.OP4 copy of letter dated 8.7.2019 and closed evidence.
13. OP No.2 has tendered in evidence, Ex.OP2/A affidavit of Amrit Raina CR Manager of OP No.2 alongwith documents, Ex.OP5 copy of resolution and closed evidence.
14. We have heard ld. counsel for the parties and have also gone through the record of the case, carefully.
15. The complainant has purchased Toyota Yaris vehicle from OP No.2, as per invoice dated 11.9.2018,Ex.C1 for a consideration of Rs.8,75,000/-. The car was insured through New India Assurance Co. Ltd.  from 11.9.2018 to 10.9.2019 vide Ex.C7. The first free service of the car was availed by the complainant from Pioneer Toyata , Patiala, authorized dealer of OP No.1, as per Ex.C8 with the mileage of 638 Kms.
16. The complainant has alleged that there was problem in the vehicle as the engine suddenly stopped working/running and the ignition of the vehicle had to be  switched on again. However, no such remarks have been added in the service record as has been produced by the complainant. The complainant has further alleged that the vehicle was brought to Pioneer Toyota, Patiala, the authorized service center of OP No.1 on 14.11.2018, 17.11.2018, 5.1.2019 and 24.4.2019, as per service history,Ex.C9 to Ex.C12 and the same defect was brought in the notice of service center. However, the OPs failed to fix the same. This allegation of the complainant is again not proved as no such remarks have been added in the service record produced by the complainant as above. The only remarks added in the service record dated 17.11.2018,Ex.C10 is regarding the adjustment  in the height of the clutch pedal. The other remarks added in the service record dated 24.4.2019,Ex.C12 is regarding the initialization of the engine made as per request of the customer. The complainant was not satisfied with the response of the service centre of the OPs and made a complaint through email dated 15.4.2019 , Ex.C13 to Mr.Masakazu Yoshimura, M.D. and to Mr.Vikram S.Kirloskar, Vice Chairman of Toyota Kirloskar Motor, highlighting the above problem stating that the vehicle in question was not road worthy and it was hazardous to drive the vehicle as it can cause danger to the life and safety of the occupants as well as public in large. Another complaint was made by the complainant vide e-mail dated 1.5.2019, Ex.C14 as no response was received with respect to his previous complaint. The e-mail was duly replied (Ex.C15)  by Samantha Betts, Specialist Case Manager, Customer Relations Toyota (GB) PLC, stating that Toyota (GB) PLC has no jurisdiction outside of the UK i.e. Group Britain and advised the complainant to take up the matter  with Toyota  in India. The matter was repeatedly taken up with the OPs vide e-mails Exs.C16 to C21 but the issue was not resolved. The complainant was then asked to bring the vehicle to the service centre of the OPs vide e-mail dated 27.5.2019, Ex.C22. Complainant took the vehicle to the service centre on 28.5.2019 and 29.5.2019, as per service record,Exs.C24 and C25. The vehicle was returned to the complainant with the report that the data has been captured and no mention of the defect regarding stopping the engine was observed as per remarks in the said service report. Complainant was not satisfied with the report of the technical experts and has argued that the OPs were fully aware about the manufacturing defect regarding the stopping of the engine in the vehicle and has stated that hefty discount (Ex.C29) was offered at the time of the purchase of the vehicle as the engine and its clutch system was of old technique and the operation of the car was un successful. Complainant has, as such prayed for the acceptance of complaint.
17. OP No.1 has taken the preliminary objections that the complaint is not maintainable as this Commission has no territorial jurisdiction to try and decide the present complaint as per the provisions of the Consumer Protection Act, 1986. However, perusal of the record emerges that  complainant resides at Patiala and is carrying out his official business also from Patiala, Moreover, OPs also have their authorized service centre at Patiala. As such both the complainant and the OPs have their offices/service centre at Patiala. Further all the services of the vehicle were got carried by the complainant from the authorized service centre of the OPs at Patiala. As such, this Commission has got jurisdiction to try the complaint.
18. OP No.1 has further taken up the objection that the car has been purchased out of the funds of the company i.e. M/s Gupta Mechanical and Sunrise Store, Patiala and as such it was associated with the procurement of the vehicle from the funds of the company and is being used for commercial activities. However, the car is being used by the M.D. of the company Mr. OM Lalit Gupta, the complainant for his personal use and not for the transportation of the staff/material of the company.
19.  OP No.1 has not disputed the fact that the vehicle was purchased by the complainant from OP No.2 i.e. authorized agent of OP No.1. OPs have denied that the complaint of stopping the engine in the running condition was ever brought to the notice of the service centre of OP No.1 as service job sheets, Exs.C8 to C12, produced by the complainant himself do not indicate any such problem.
20. OP No.1 has further argued that even no such complaint was made by the complainant when the vehicle was brought to the service centre of OP no.1 on 24.4.2019 as per Ex.C12. However, due to repeated complaints through e-mails regarding sudden stopping of vehicle while on running condition, the complainant was advised to take the vehicle for inspection on 25.5.2019 by expert team of Toyota Kirloskar Motors. The vehicle was thoroughly inspected by the expert inspection team of Toyota Kirloskar Motors on 28.5.2019 and 29.5.2019 when the vehicle was brought to the service centre of the OPs to attend the complaint of stoppage of the vehicle in running condition. As per the OPs the only grievance of the complainant was that the vehicle gets stalled when they tried to move the same from standstill position while releasing the clutch pedal in first gear.OPs have  placed on record copy of said service report dated 29.5.2019. It is further argued that complainant has failed to produce on record any evidence in support of his claim that the vehicle suddenly stops while in running condition and has prayed for the dismissal of the complaint.
21. As perusal of the above facts indicate that the complaint regarding the stopping of the engine while in running mode was not brought to the notice of the OPs by the complainant as per the service record produced by the complainant himself from 8.10.2018 to 5.1.2019. First complaint made to MD and Vice Chairman of Toyota Kirloskar Motors was made on 15.4.2019. However, vehicle of the complainant was duly inspected by the expert team of the OPs on 28.5.2019 and 29.5.2019 when data of the vehicle was captured. Simulation of the vehicle was done 200 times and engine never stalled when leaving in first gear from standstill position. There was no issue in the vehicle relating to the starting of the engine.
22. The grievance of the complainant is that engine stops suddenly while in running mode. Complainant has never made any complaint regarding the running of the vehicle from stand still to first hear. Simulation made by the OPs relates to the operation of the vehicle from stand still to first gear and the operation of the vehicle while in running condition has not been certified by the OPs. No other complaint has been made regarding any other defect in the car. A period of more than 4 ½ years have lapsed since the purchase of the vehicle and the same is in the possession of the complainant and is being used sparingly as the complainant is afraid of using the said vehicle for any long trips. As per the verbal submission of the complainant the vehicle has run a distance of 70000 kms approximately. So, we deem it fit to give a direction to the OPs to get the vehicle inspected through a team of technical experts of the OPs as well as any member so nominated by the complainant and to check the operation of the vehicle by running it for a distance of 150 to 200 KMs. We order accordingly. Defect if any, noticed in the vehicle be rectified to the satisfaction of the complainant and no amount be charged for the same from the complainant. Both the parties are free to carry out videography of all such activities. The above exercise be carried out within 30 days from the date of receipt of certified copy of this order. Complaint is disposed of accordingly. In view of the order as above, other miscellaneous applications, if any, also stand disposed off.
23.           The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.
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85109252238717.  

                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President