THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR

Consumer Complaint No. 648 of 2016

Date of Institution : 7.12.2016

Date of Decision : 26.2.2019

Kiran Sharma wife of Sh. Chetan Sharma resident of H.No. 6, Guru Nanak Avenue, Chheharta, Amritsar

...Complainant

Vs.

1.       Toyota Kirloskar Motor Pvt.Ltd. having its office at NMEC Block, Plot No.1, Bidadi Industrial Area, Banglore 562109, Karnataka through Managing Director/Director/Manager/Authorized signatory

2.       M/s. ANR Motors Private Limited, Castle Toyota having its office at Daburji, G.T. Road, Near Bye Pass, Amritsar through Managing Director/Director/Manager/Authorized signatory

3.       M/s. Toyota Financial Services India Limited having its office at Daburji, GT Road, Near Bye Pass, Amritsar through Managing Director/Director/Manager/Authorized Signatory

....Opp.parties

Complaint under section 12/13 of the Consumer Protection Act, 1986

Present : For the complainant : Sh. Vishal Sharma,Advocate

    For the opposite parties : Sh.Kanwar Pahul Singh, Advocate

Coram :

Sh. Charanjit Singh President

Sh.Anoop Sharma,Member

Ms. Rachna Arora, Member

Order dictated by :-

Charanjit Singh, President

1.       Present complaint has been filed by Kiran Sharma, complainant under the provisions of the Consumer Protection Act alleging therein that she purchased one Toyota Etios Liva VD car from opposite party No.2 manufactured by opposite party No.1 having Chassis No. MBJK49BT400071526 and Engine No. IND1395953 having registration No. PB-02-CN-4102 on 30.1.2015 vide invoice No. INV150000041 for Rs. 6,75,109.61 paise. Opposite party No.1 is manufacturer and opposite party No.2 is the authorized dealer appointed by opposite party No.1 . Opposite party No.3 is performa party since the complainant had availed financial assistance from opposite partyNo.3 to the tune of Rs. 4,00,000/- for the purchase of the said vehicle and is making payment of the installments regularly. On 17.2.2015 when the car was being driven by husband of the complainant namely Chetan Sharma, it started to rain and the water started logging up in the cabin due to which all the carpet and mats became water logged causing great inconvenience to the driver of the vehicle and other passengers . The husband of the complainant took the vehicle to opposite party No.2 on 17.2.2015 and reported the problem and also sent e-mail to opposite party No.2 in this respect. The said vehicle was kept in the service station for about 4 days and thereafter the same was returned to the complainant with assurance that they have sealed the possible water entering places and the problem will not occur again. However, again on 10.3.2015 while driving in rain the water came inside the car cabin, the matter was again reported to opposite party No.2 on the same day and the car was taken into the service station. Again the engineers of the service station returned the car to the complainant after couple of days with assurance that the problem has been resolved and now the water shall not enter the car cabin. Again in the month of April 2015 when the complainant alongwith her husband was travelling in Himachal Pradesh and it started to rain and again water start logging inside ther car cabin causing lot of inconvenience and rather making it impossible to drive the car. The matter was again reported to opposite party No.2 on 11.4.2015 and again the car was returned by them to the complainant stating that the fault has been repaired and the water shall not enter in the car again. It is worth to mention here that despite of several visits to opposite party No.2 the engineers of opposite party No.1 & 2 have failed to repair the fault and were unable to stop the water from entering the car while the same is driven in rain. The copies of job cards dated 10.3.2015, 11.4.2015, 30.4.2015, 30.1.2016, 5.9.2016 and 16.9.2016 are annexed with the complaint. The husband of the complainant wrote numerous e-mails to opposite parties No.1 & 2 seeking redressal of the grievances and requested them for resolving the problems, but failed to get any satisfactory answer . Even the engineers of opposite parties No.1 & 2 have failed to understand the reason for the water to enter the car when it is being driven in the rain . Finally on 13.9.2016 the concerned person at the service station of opposite party No.2 certified that on 17.2.2015 the problem of water entering the car was reported for the Ist time and that they have tried their level best to fix it but the problem still persists and they are unable to trace the cause of the said problem and the same is kept pending by them. After the said certificate, husband of the complainant again sent e-mail to opposite parties No.1 & 2 seeking redressal of the grievances and requested for the replacement of the said vehicle since the problem of water entering the car while being driven in rain could not be resolved and rather the reason for the said problem could not be traced. In response to said e-mails, opposite parties No.1 & 2 sent an e-mail on 17.9.2016 vide which it was stated that the vehicle has been thoroughly checked and no abnormality has been found and assured once again that the problem will not occur again. Opposite parties No.1 & 2 are acting with malafide intentions and ulterior motives which is evident from the fact that on 13.9.2016 the authorized signatory is certifying that the engineers at the service station have failed to trace the reasons for water to enter the car and when the complainant requested for the replacement of the vehicle , on 17.9.2016 in order to save themselves from any legal implications the opposite parties No.1 & 2 once again made a false assurance to the complainant as stated above. The entering of water in the car cabin is a manufacturing defect and the same is not even traceable by the expert engineers of opposite parties No.1 & 2 despite of their best efforts as well as from the certificate dated 13.9.2016 vide which the fact has been admitted by the opposite parties. The complainant and her husband reported the said problem number of times to opposite parties No.1 & 2 but opposite parties have failed to redress the grievance of the complainant . The act of the opposite parties in supplying a defective car which is having manufacturing defects, amounts to deficiency in service and unfair trade practice on the part of the opposite parties No.1 & 2. Vide instant complaint, complainant has sought for the following reliefs:-

(a)     Opposite parties No.1 & 2 be directed to replace the said Toyota Etios Liva VD (M) car or in the alternative to refund the amount of Rs. 6,75,109.61 paise i.e. cost of the car alongwith interest that he has paid to opposite party No.3 as he got financed an amount of Rs. 4,00,000/- from opposite party No.3 ;

(b      Opposite parties No.1 & 2 be also directed to pay compensation to the tune of Rs. 50000/- alongwith litigation expenses to the tune of Rs. 20000/- may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite parties No.1,2 & 3 appeared and filed separate written versions.

3.       Opposite party No.1 in its written version has submitted that as and when the complainant came to opposite party No.2 the complaints were immediately attended to and the vehicle was properly examined and problems were effectively rectified by opposite party No.2 at relevant times. The job work done by opposite parties to the vehicle of the complainant is matter of record does not relate to replying opposite party. It was however submitted that as and when the car of the complainant to the workshop of opposite party No.2 with complaint of water logging the same was duly checked by mechanics of opposite party No.2 and senior officials or engineers of opposite party No.1 also but in front of them, there was not even a single instance during all the times,of water going inside the car. However, as a goodwill gesture, the opposite parties have already changed all doors as well as water strips of the car to the satisfaction of the complainant. Thereafter proper shower test was also done in presence of complainant as well as mechanics and officials of opposite party in the workshop of opposite party No.2 to check the water if it is going inside or not and vehicle was eventually delivered to the complainant after his satisfaction.. The opposite parties have already replaced the parts under warranty necessary to resolve alleged complaint of water logging inside the car during rainy season as per warranty terms and conditions.. However, there was not even a single instance at any point of time of water going inside the vehicle during the relevant times in the workshop of opposite party No.2 . It was denied that opposite party ever certified that opposite parties have tried their best to resolve the problem but the problem still persists. As there was not even a single instance of water logging in the vehicle during examination of vehicle in the workshop, the opposite parties were not able to trace the exact cause of the complaint stated by the complainant. While denying and controverting other allegations, dismissal of complaint was prayed.

4.       Opposite parties No.2 & 3 in their written version have taken the similar pleas as were taken by opposite party No.1, as such there is no need to reproduce the same .

5.       In his bid to prove the case Sh. Munish Menon,Adv. counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A, affidavit of Chetan Sharma Ex.CW2/A, affidavit of Narinder Singh Ex.CW3/A alongwith documents Ex.C-1 to Ex.C-15 and closed the evidence on behalf of the complainant.

6.       To rebut the aforesaid evidence Sh.Kanwar Pahul Singh,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Shreenivasa, P Gotur Ex.OP1/A, copy of e-mail dated 17.9.2016 Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.

7.       On the other hand Sh.Kanwar Pahul ,Adv.counsel for opposite parties No.2 & 3 tendered into evidence affidavit of Sh.Rakesh Kapoor, General Manager Ex.OP2,3/A, copy of terms and conditions Ex.OP2,3/1, copy of job card and invoice Ex.OP2,3/2, copy of invoice dated 16.9.2016 Ex.OP2,3/3, copy of detailed record of the car of the complainant Ex.OP2,3/4, affidavit of Sh.Rajbir Singh Ex.OP2,3/5, copy of certificate Ex.OP2,3/6 and Ex.OP2,3/7 and closed the evidence on behalf of opposie parties No.2 & 3.

8.       We have heard the Ld.counsel for the parties and have carefully gone through the record on the file.

9.       From the record i.e. pleadings of the parties and the evidence produced on record by both the parties , it is clear that complainant purchased one Toyota Etios Liva VD car from opposite party No.2 manufactured by opposite party No.1 having Chassis No. MBJK49BT400071526 and Engine No. IND1395953 having registration No. PB-02-CN-4102 on 30.1.2015 vide invoice No. INV150000041 for Rs. 6,75,109.61 paise. Copy of sale invoice is Ex.C-1 on record. Opposite party No.1 is manufacturer and opposite party No.2 is the authorized dealer appointed by opposite party No.1 . The complainant got financed the said car from Opposite party No.3 to the tune of Rs. 4,00,000/- and is making payment of the installments regularly,as such opposite party is performa party . It was the case of the complainant that on 17.2.2015 when the car was being driven by husband of the complainant namely Chetan Sharma, it started to rain and the water started logging up in the cabin due to which all the carpet and mats became water loggted causing great inconvenience to the driver of the vehicle and other passengers . The husband of the complainant took the vehicle to opposite party No.2 on 17.2.2015 and reported the problem and also sent e-mail to opposite party No.2 in this respect. The said vehicle was kept in the service station for about 4 days and thereafter the same was returned to the complainant with the assurance that they have sealed the possible water entering places and the problem will not occur again. However, again on 10.3.2015 while driving in rain the water came inside the car cabin, the matter was again reported to opposite party No.2 on the same day and the car was taken into the service station. Again the engineers of the service station returned the car to the complainant after couple of days with assurance that the problem has been resolved and now the water shall not enter the car cabin. Again in the month of April 2015 when the complainant alongwith her husband was travelling in Himachal Pradesh and it started to rain and again water start logging inside ther car cabin causing lot of inconvenience and rather making it impossible to drive the car. The matter was again reported to opposite party No.2 on 11.4.2015 and again the car was returned by them to the complainant stating that the fault has been repaired and the water shall not enter the car again. It is worth to mention here that despite of several visits to opposite party No.2 the engineers of opposite party No.1 & 2 have failed to repair the fault and were unable to stop the water from entering the car while the same is driven in rain. The copies of job cards dated 10.3.2015, 11.4.2015, 30.4.2015, 30.1.2016, 5.9.2016 and 16.9.2016 are annexed with the complaint. The husband of the complainant wrote numerous e-mails to opposite parties No.1 & 2 seeking redressal of the grievances and requested them for resolving the problems, but failed to get any satisfactory answer . Even the engineers of opposite parties No.1 & 2 have failed to understand the reason for the water to enter the car when it is being driven in the rain and finally on 13.9.2016 the concerned person at the service station of opposite party No.2 certified that on 17.2.2015 the problem of water entering the car was reported for the Ist time and that they have tried their level best to fix it but the problem still persists and they are unable to trace the cause of the said problem and the same is kept pending by them, copy of certificate is Ex.C-15 on record. After the said certificate, husband of the complainant again sent e-mail to opposite parties No.1 & 2 seeking redressal of the grievances and requested for the replacement of the said vehicle since the problem of water entering the car while being driven in rain could not be resolved and rather the reason for the said problem could not be traced. In respose to said e-mails, opposite parties No.1 & 2 sent an e-mail on 17.9.2016 vide which it was stated that the vehicle has been thoroughly checked and no abnormality has been found and assured once again that the problem will not occur again, copy of reply is Ex.OP1/1. Opposite parties No.1 & 2 are acting with malafide intentions and ulterior motives which is evident from the fact that on 13.9.2016 the authorized signatory is certifying that the engineers at the service station have failed to trace the reasons for water to enter the car and when the complainant requested for the replacement of the vehicle , on 17.9.2016 in order to save themselves from any legal implications the opposite parties No.1 & 2 once again made a false assurance to the complainant as stated above. The entering of water in the car cabin is a manufacturing defect and the same is not even traceable by the expert engineers of opposite parties No.1 & 2 despite of their best efforts as well as from the certificate dated 13.9.2016 vide which the fact has been admitted by the opposite parties. The complainant and her husband reported the said problem number of times to opposite parties No.1 & 2 but opposite parties have failed to redress the grievance of the complainant . Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite parties qua the complainant as the opposite parties could not rectify the defects nor replaced the vehicle in question with new one.

10.     Whereas the case of opposite parties is that as and when the complainant came to opposite party No.2 the complaints were immediately attended to and the vehicle was properly examined and problems were effectively rectified by opposite party No.2 at relevant times. The job work done by opposite parties to the vehicle of the complainant is matter of record does not relate to replying opposite party. It was however submitted that as and when the car of the complainant to the workshop of opposite party No.2 with complaint of water logging the same was duly checked by mechanics of opposite party No.2 and senior officials or engineers of opposite party No.1 also but in front of them, there was not even a single instance during all the times, of water going inside the car. However, as a goodwill gesture, the opposite parties have already changed all doors as well as water strips of the car to the satisfaction of the complainant. Thereafter proper shower test was also done in presence of complainant as well as mechanics and officials of opposite party in the workshop of opposite party No.2 to check the water if it is going inside or not and vehicle was eventually delivered to the complainant after his satisfaction.. The opposite parties have already replaced the parts under warranty necessary to resolve alleged complaint of water logging inside the car during rainy season as per warranty terms and conditions.. However, there was not even a single instance at any point of time of water going inside the vehicle during the relevant times in the workshop of opposite party No.2 . It was denied that opposite party ever certified that opposite parties have tried their best to resolve the problem but the problem still persists. As there was not even a single instance of water logging in the vehicle during examination of vehicle in the workshop, the opposite parties were not able to trace the exact cause of the complaint stated by the complainant. Ld.counsel for opposite party No.1 submitted that there is no deficiency of service on the part of opposite party No.1 qua the complainant.

11.     From the entire above discussion, we have come to the conclusion that the complainant purchased the vehicle in question Toyota Etios Liva VD bearing registration No. PB-02-CN-4102 on 30.1.2015 from opposite party No.2 manufactured by opposite party No.1. It was the case of the complainant soon after purchase of the vehicle i.e. on 17.2.2015 when the car was being driven by the husband of the complainant , it started to rain and the water started logging up in the cabin due to which all the carpet and mats became water logged. The complainant took the vehicle to the service station and reported the problem and also sent e-mail to opposite party No.2 who after keeping the vehicle for about 4 days returned the same to the complainant with assurance that they have sealed the possible water entering places and the problem will not occur. But again on 10.3.2015 the said problem of water logging again occurred and again complainant took the vehicle to the opposite party No.2 where engineers of opposite party No.2 after making necessary repairs returned the vehicle to the complainant with assurance that the water shall not enter the car cabin. However, again in the month of April 2015 the said problem of water logging again occurred and again the complainant reported the matter to opposite party No.2 and again the fault has been repaired and it shall not occur again. It was the case of the complainant that despite several visits to the service station , engineers of opposite parties have failed to repair the fault and were unable to stop the water from entering the car . To prove his case complainant has filed job cards dated 10.3.2015 and 11.4.2015 Ex.C-11 in which the defect occurred in the car was mentioned as "water comes inside the cabin" as well as copies of e-mails sent to the opposite parties requesting them to remove the defect Ex.C-2 to Ex.C-12,which fully prove that the vehicle of the complainant generally remained in the workshop of opposite party No.2 with the same defect of water logging which itself prove that the said defect is a manufacturing defect which despite best efforts of opposite party No.2 was not removed and occurred again and again. To prove the manufacturing defect in the vehicle, complainant has filed duly sworn affidavit of one Narinder Singh Ex. CW3/A ,who was running an Auto Garage who checked the vehicle and stated that cause of occurring the said defect of water logging continuously in the car meaning thereby that there is  manufacturing defect in the car. Not only this the complainant has also placed on record certificate issued by opposite party No.2 Ex.C-15 in which it has been admitted by the opposite party No.2 that on 17.2.2015 vehicle was brought to them with complaint of water entering. It has further been stated that they tried their best to fix it but vehicle again report for the same complaint and by the help and instructions of TKM technical team they tried to resolve the water entering issue 4 to 5 times and during last visit of technician team, could not trace the water entering cause. It all shows that there is water entering problem in the newly purchased vehicle only one month after its purchase that is why the complainant approached the opposite party No. 2 again and again for solving the problem in the vehicle. All the  records produced by the opposite parties indicates that the vehicle was taken to the workshop of opposite party No. 2 a number of occasions with complaints of water logging in the vehicle in question and as per version of the complainant, the defects in the vehicle have not been removed. The consumer cannot be expected to take the vehicle to the workshop on a number of occasions, unless there are defects in the said vehicle. Reliance in this connection has been placed upon MarutiSazuki India Ltd. Vs. Dr. KoneruSatya Kishore &Ors. of the Hon'ble NationalConsumer Disputes Redressal Commission, New Delhi. in 1(2008) CPJ 157(NC) ,wherein it has been held by the Hon’ble National Consumer Disputes Redressal Commission, Delhi that defects not removed despite several visits to workshop. Vehicle had to be taken to workshop of dealer on a number of occasions with complaints of intermittent Jerks, running and hash noise from gear box assembly system. Dealer made efforts to remove defects but vehicle could not be made free from such defects. It has also been held that consumer cannot be expected to take vehicle to workshop on a number of occasions, a vehicle is said to be suffering from ‘defect’, if there is any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. Vehicle did suffer from defects as it had to be taken to workshop of dealer from time to time. The petitioner failed in the task to provide vehicle in road worthy condition to complainant. Dealer did carry out repairs in vehicle as per job cars, but was not able to remove the defects in vehicle. Refund of purchase price and compensation rightly awarded. In the case in hand, as per record of Job sheets and history of the vehicle it proved that the complainant has brought the vehicle to the opposite party No. 2 several times for its repair but the opposite party No. 2 has failed to satisfy the complainant and by not removing the defects in the car in question, it amounts to deficiency in service on the part of the opposite parties.

12.     In view of above discussion, the present complaint is allowed and the opposite party No. 2 is directed to get replaced the car of the complainant from opposite party No.1 with same make and model or to refund the price of the vehicle to the tune of Rs.6,75,109.61 paise (Rs. Six Lacs seventy five thousand one hundred and Nine only).The complainant is also entitled to Rs.10,000/- (Ten thousand only) as compensation on account of harassment and mental agony and Rs 5,000/-(Rupees Five thousand only) as litigation expenses from both the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

(Charanjit Singh)

          President

(Anoop Sharma)            (RachnaArora)

Member                         Member