Punjab

StateCommission

CC/464/2017

Chand Rakesh Yadav - Complainant(s)

Versus

Toyota Kirloskar Motor Pvt. Ltd. - Opp.Party(s)

Suneet Kumar

13 Jul 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

    STATE CONSUMER DISPUTES  REDRESSAL  COMMISSION,           PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.464 of 2017

 

                                                          Date of Institution   : 08.06.2017   

                                                         Order Reserved on : 11.07.2018

                                                          Date of Decision     : 13.07.2018

 

Mr. Chand Rakesh Yadav son of Sh. Raja Ram Yadav, r/o H.No. 541, T-8, SBP, South City, Zirakpur, Mohali.

                                                                                                                                                                                                 ….Complainant

                                      Versus

 

1.      Toyota Kirloskar Motor Pvt. Ltd, through its Managing Director,         24, 10th Floor, Canerra Block, Vittal Mallaya Road, Bengalore-      560001, Karnataka.

 

2.      Globe Toyota, Authorized Dealer, Globe Automobiles Pvt. Ltd.,        B-51, Industrial Area, Phase VI, Mohali (Punjab), through its    Manager.

 

3.      Globe Toyota, Authorized Dealer, Globe Automobiles Pvt. Ltd,         opposite PTC Madhuban, G.T Road (N.H.1), Karnal 132001,       Gurgaon (Haryana) - 122 002, through its Manager.

 

                                                                             …. Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant              :  Sh. Suneet Kumar, Advocate

          For opposite party  no.1       :  Sh. K.P Singh, Advocate

          For opposite party no.2 &3   :  Sh. Shivam Grover, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs, on the premise, that he purchased the Innova 2.8 Z bearing registration no. PB-65AJ-4051 from OPs in the month of October 2016 for a sum of Rs.21,01,496/-, vide invoice dated 07.10.2016. At the time of purchase of the vehicle, OP no.2 persuaded the complainant to take additional warranty by paying Rs.31395/- more and thus he paid a sum of Rs.31395/- and warranty was extended and vehicle was insured with United India Insurance Co. Ltd., from first month of purchase of the above said car, it developed a severe problem with respect to the gear box and tyres. The complainant made many requests to OP no.2 in this regard, but of no use. Three tyres of the said car busted on 5.11.2016 and                      complainant escaped in above mishap at Gorakpur. He immediately called at customer care and he was asked to approach Globe Toyota at Gorakhpur. Despite  the fault of OP no.1, he was constrained to purchase three tyres @ Rs.13418/-. After returning from Gorakhpur, he complained about the manufacturing defect in the tyres and rim of Innova car to OPs no.1 and 2. The engineer of OPs no.1 and 2 inspected the car and found the Rim and Tyres of the Innova car to be defective and it charged all the five tyres and rim of the Innova car. The complainant was not compensated for the three tyres, which were purchased by him under compelled circumstances. Thereafter, gear box of Innova car started giving trouble. He requested OP no.2 to solve the problem, but all in vain. Unfortunately, while he was going to Karnal with family, the gear box of Innova car jammed in the mid of the road and rear portion of the car was also jammed. When he contacted the customer care of OPs, he was asked to approach OP no.3. His car was towed away on 13.03.2017, but job card was made on 14.03.2017. Thereafter, he was asked to visit  OP no.3 on 13.04.2017, but alleged inspection of the car was done by OP no.3 on 12.04.2107 and on 13.04.2017. Thereafter about 10 days later, he was shocked to receive the undated letter issued by O no.3, whereby OP at the back of complainant inspected the car and found no manufacturing defect therein and even asked for paying Rs.200/- per day charge as parking. The above said acts of OPs are trying to coax their customers to sell defective cars. The complainant also served a legal notice upon OPs, but of no use. The complainant alleged deficiency in service on the part of OPs in not rendering the proper services to him. The complainant has filed complaint with below noted reliefs  against OPs :-

i)        OPs be directed to change the defective car with a brand new         one.

ii)       OPs be directed to refund an amount of Rs.21,01,496/- , which        has been paid by complainant to OPs for purchase of the  said     car with interest @ 24% p.a.

iii)      OPs be directed to pay a sum of Rs.5 lac as compensation for         mental harassment and cost of litigation.

2.                Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant vehemently by raising preliminary objections that OP no.1 is prominent manufacturer of the car in the automobile industry. The company always strives to deliver the optimal quality to the customers by manufacturing cars, which are tested for its quality and time before delivering the same to the customer through its authorized dealers. The relationship between OP no.1 and other OPs no.2 and 3 is purely on principal-to-principal basis. This Forum has got no territorial jurisdiction to try the complaint. The complainant has got no locus standing to file the complaint. The complaint is not maintainable. On merits, it was denied that within first month of the purchase of car, it developed severe problem with respect to the gear box and tyres. It was denied that three tyres of the said car suddenly busted on 5.11.2016. It was also denied that due to fault of OP no.1, the complainant was constrained to purchase three tyres @ Rs.13418/-. Rest of the averments of the complainant were denied by OP no.1 and it prayed for dismissal of the complaint.

3.                OPs no.2 and 3 appeared and filed its separate written reply and contested the complaint of the complainant. It was averred that OPs deals in the sales and after sales service of the vehicles manufactured by Toyota Kirloskar Motors (TKM) i.e. OP no.1. The vehicles manufactured by Toyota i.e. TKM passes through strict quality tests and after due certifications/PDI  (Pre Delivery Inspection) by quality department of manufacturing company. The vehicles are rolled out from the manufacturer facility for onward sale to the customer. The manufacturer company is globally renowned for manufacturing of quality vehicles and carries a great reputation in this regard. The vehicle in question was purchased by complainant from the dealership of OP no.2 on 07.10.2016. At the time of delivery of vehicle, various items including owner's manual and service booklet were handed over to the complainant and same was acknowledged by him. The complainant took the delivery of the vehicle in question in good condition together with documents with owner manual, tools and equipments and duly signed the acknowledgment to this effect. The complainant had never complained about any problem in gear box, as alleged by him during the scheduled service or his visit for accidental repair at the dealership of OPs no.2 and 3. After sale of the vehicle, the vehicle in question was reported to the dealership of OPs no.2 and 3 on 13.10.2016 for 1000 km routine service. The odometer reading at that point of time was 1444 kms. At this point of time, the complainant had not raised any concern about the gear box of the vehicle in question, as alleged by him. Thereafter, the vehicle in question was reported at Goenka Motors Pvt. Ltd (Rajendra Toyota) Gorakhpur on 5.11.2016 for 5000 Kms service. The odometer reading of the vehicle in question at that point of time was 6067/-. As per service history, one tyre replaced from Gorakphur and tax invoice dated 05.11.2016 was issued by Goenka Motors Pvt. Ltd. (Rajendr Toyota) Gorakhpur is annexed herewith as Annexure OP2&3/7. Thereafter, the vehicle in question was reported at the  dealership of OP no.2 on 15.11.2016 and complainant requested for wheel alignment of the vehicle in question and upon his request, the wheel alignment was done on that very day. The odometer reading at that point of time was 7968 Kms.  At this point of time, there was no complaint about the defect in gearbox and any other defect in the vehicle in question by the complainant. Thereafter as per service history, the vehicle in question was again reported at Goenka Motors Pvt. Ltd Gorakhpur on 24.11.2016 and two tyres of the vehicle were replaced. Thereafter the  vehicle in question was again reported at the dealership of OP no.2 on 30.11.2016. The vehicle was again reported at the dealership of OP no.2 for scheduled 10000 Kms service on 29.12.2016. The odometer reading of the vehicle at that time  was 11672. Thereafter the vehicle was reported at the dealership of OP no.2 for accidental repair on 16.01.2017 and odometer reading of the vehicle in question at that point of time was 12973 and on 14.03.2017 the vehicle was again reported to dealership of OP no.3  and odometer reading at that point of time was 16722 Kms. Rest of the averments of the complainant were denied by OPs no.2 and 3 and they prayed for dismissal of the complaint.

4.                The complainant tendered in evidence  his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-14 and closed the  evidence. As against it; OP no.1 tendered in evidence affidavit of Sh. Gurpreet Singh Officer Technical Services Division of OP no.1 as Ex.OP-1/A along with copies of documents Ex.OP-1/2 to Ex.OP-1/4 and closed the evidence. OPs no.2 and 3 tendered in evidence affidavit of Vivek Dutta Director of OPs no.2&3/M/s Globe Automobiles as Ex.OP-2&3-A, affidavit of Manoj Kumar Group Technical Leader of OPs no.2&3 as Ex.OP2&3/B along with copies of documents Ex.OP2&3/1 to Ex.OP2&3/23 and closed the evidence.

5.                We have heard learned counsel for the parties at considerable length and have also examined the record of the case. The grievance of the complainant is that he purchased new car from OP no.2 being authorized dealer of OP no.1, as manufacturer for sale price of Rs.21,01,496/- in the month of October 2016 , vide invoice dated 07.10.2016. OP no.2 the authorized dealer persuaded him to take additional warranty by paying Rs.31395/- extra  and thereby he paid a sum of Rs.31395/- and warranty was extended and thus vehicle was insured with life insurance company. Within the first month of the purchase of the above said car, it developed a problem with respect to the gearbox and tyres. Three tyres of the said car busted on 05.11.2016 making narrow escape for the complainant from the accident. The complainant approached OPs in this regard, but to no effect and was constrained to purchase three tyres @ Rs.13418/-. There were manufacturing defect in the tyres and rim of the car purchased by him. The manufacturing problem was not resolved by OP no.2/authorized dealer. While complainant was proceeding to Karnal with his family, the gear box of the car purchased by him was zammed suddenly in the mid of the road and rear portion of the  car was also zammed. The complainant contacted the customer care and he was asked to approach OP no.3. The car of the complainant was towed away on 13.03.2017, but job card was prepared on 14.03.2017. OP got the vehicle inspected at the back of the complainant and gave the wrong report of no manufacturing defect in it. The complainant has alleged manufacturing defect in the vehicle and sought replacement of the vehicle with new one or to refund the price, besides compensation. OPs filed its separate written reply and took defence that there was no manufacturing defect in the vehicle purchased by the complainant from OPs, manufactured by OP no.2. This plea was raised in affidavit of Vivek Dutta Director M/s Globe Automobiles /OPs no.2&3/A that it deals in the sale of vehicle manufactured by OP no.1. The vehicle manufactured by OP no.1 undergoes through the strict quality tests and after due certifications/PDI (pre-delivery inspection) by the quality department of the manufacturing company, any manufacturing defect in the vehicle was denied by OPs. The complainant never complained about any problem in gear box during the service or when he visited for accidental repair at the dealership of OP no.2 on 13.10.2016. The vehicle ran 1000 Kms routine service. The odometer reading at that point of time was 1444 Kms. The complainant raised no grievance of gearbox of the vehicle at that time. The complainant along with scheduled service of one tyre got it replaced from Goenka Motors Pvt. Ltd., Gorakhpur. Two tyres of the vehicle in question were replaced, when odometer reading of the vehicle in question was 7969 KMs only. OP no.3 asked the complainant to give his approval for repair of the car, but to no effect. The car is parked with OP no.3 and parking charges of Rs.200/- per day were being raised from 14.03.2017. Similarly, OP no.1 denied any manufacturing defect in the vehicle by filing written reply as pleaded by OP no.2 in this case in detail.

6.                From conclusion of evidence on the record and hearing respective submissions of counsel for the parties, we proceed to decide this controversy. There is no dispute of this fact that complainant purchased vehicle from authorized dealer/OP no.2 manufactured by OP no.1 for sale price of Rs.21,01,496/-  on 07.10.2016, vide Ex.C-1. Ex.C-2 is delivery note dated 07.10.2016.  Ex.C-3 is certificate of insurance-cum-policy schedule.  Ex.C-4 is certificate of registration in the name of Chand Rakesh Yadav/complainant. Vehicle condition report form/Job record is Ex.C-5 dated 05.11.2106. It records that both tyres of driver side are busted. Ex.C-8 is another job card dated 14.03.2017 and accessories installation has been done in it. The complainant has been voicing the grievance with OPs from to time by sending emails in this regard. Legal notice dated 16.05.2017 Ex.C-11 was also served upon OPs by complainant duly supported by postal receipt Ex.C-12 to Ex.C-14 on the record. The complainant has also tendered his affidavit in support of his case Ex.C-A.

7.                To refute this evidence of the complainant, OPs no.2 and 3 examined Vivek Dutta Director M/s Globe Automobiles Private Limited, who testified in his affidavit Ex.OP2&3/A  that vehicle is sold under the  dealership of OP no.3, which is outside the jurisdiction of the forum. The complainant has not reported the matter to dealer of OP no.2 about this dispute. Any defect in the gearbox of the vehicle in question by complainant has been denied by this witness. This witness stated that complainant never complained about any problem in the gearbox or any defect in the vehicle. The vehicle in question was reported to dealership of OP no.2 on 13.10.2016 for 1000 Kms for routine service. Thereafter, the vehicle in question was reported at Goenka Motors Pvt. Ltd Gorakhpur on 05.11.2016 for 5000 Kms service. The complainant got one tyre replaced at the time of service from Goenka Motors. The complainant also requested for wheel alignment, as deposed by this witness, which was done at that time and vehicle by that time ran 7968 Kms. Two tyres of the  vehicle in question were replaced at Gorakhpur on 24.11.2016. This witness further stated that technical team of manufacturing company visited the  premises of OP no.3, checked the vehicle and found no manufacturing defect in it. Ex.OP2&3/6 has shown that new car paint protection (3 applications) underbody protection was carried out. Labour was charged Rs.5057/- at 1000 Km service of the vehicle. What was the need for new car paint protection (3 applications) at 1000 km service of vehicle by charging Rs.5057/- for this purpose. Underbody protection charged Rs.3422/-. The alignment was carried out of the vehicle, vide Ex.OP2&3/8 and amount of Rs.522/- was charged as labour charges. The report of technical expert Ex.OP2&3/18 by OPs has been placed on the record. The photographs have indicated that Axle housing was found in bent condition. Rear RHS axle : highlighted broken area. The complainant has not examined any automobile expert to the contrary in this. How, this report of technical expert by OPs can be brushed aside, which has shown the photographs of underbody inspection of the vehicle. Arrows observed on Axle Housing, rear RHS Axle: highlighted broken area, which was observed in the photographs on the record. We find that vehicle was purchased by complainant on 07.10.2016. Three tyres of the vehicle suddenly busted on 05.11.2016 just after few times from its purchase. Rim and tyres of the vehicle were found to be defective during warranty period. There is no dispute of this fact that all this took place during the warranty period only. The complainant sent various emails to OPs in this regard voicing grievance of defects in the vehicle. Matter is not res integra. It has been held by Apex Court in "Maruti Udyog Ltd. versus Susheel Kumar Gabgotra and another", reported in 2006(2) CLT Pate 150-151 that warranty condition clearly refers to replacement of the defective parts and not the car. The Apex Court has held that it is not appropriate to direct replacement of the whole vehicle, but to direct replacement of the defective parts of the  sold car. The authorities relied upon by the complainant in "Naresh Tekwani versus Shivnath Hundai and another", reported in 2016(3) CLT 376 by National Commission and "Pardeep Kumar Khurana versus M/s Wheels World" reported in 1997(1) CPC 312 of Himachal Pradesh State Commission and "Controls & Switchgear Company Ltd… versus Daimlerchrysler India Pvt. Ltd and another", reported in 2007(4) CPJ 1 by National Commission have been duly considered by us, but the law laid down by Apex Court in Maruti Udyog (supra) is fully applicable in this case and will prevail over the cited authorities by complainant. Consequently, complainant has proved that no external accident took place of this vehicle and this vehicle started giving troubles in its gearbox and its tyres stood busted.

8.                Application for additional evidence filed by complainant for permission to examine the automobile expert to check the manufacturing defect in the innova car at the final stage of the case is without any merit because case of the complainant leads to this inference that there was problem in the vehicle during warranty period. Therefore, the application for additional evidence moved by complainant is hereby dismissed.

9.                As a result of our  discussion, we accept the complaint of the complainant  and direct OPs to replace the defective parts of the vehicle as the problem arose within the warranty period. OPs shall replace the defective parts of the vehicle with  new one within a period of one month from the date of  receipt of certified copy of this order. The complainant is also held entitled to Rs.25,000/- as compensation for mental harassment and Rs.20,000/- as costs of litigation.

10.              Arguments in this complaint were heard on 11.07.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

11.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                       (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

July 13,  2018                                                                

(ravi)