Haryana

Panchkula

CC/15/2015

MANISH NAGPAL. - Complainant(s)

Versus

TOYOTA KIRLOSKAR MOTOR PVT.LTD. - Opp.Party(s)

AMIT KOHAR.

10 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                                  

Consumer Complaint No	:	15 of 2015
Date of Institution	:	19.01.2015
Date of Decision	:	10.07.2015

                                                                                          

Manish Nagpal son of Shri O.P. Nagpal, resident of Flat No. 203, GH-36, Sector-20, Panchkula and presently residing at Flat No. 601, Chinar Apartments, Peer Machalla, Tehsil Derabassi, District S.A.S. Nagar.

 

                                                                                          ….Complainant

Versus

1. Toyoto Kirloskar Motor Pvt. Ltd., Corporate Office, # No. 24,10^th Floor, Canberra Block, Vittal Mallya Road, Near Mallaya Hospital, Bangalore-560001 through its Chairman.
2. M/s Em Pee Motors Ltd., Pioneer Toyota, # 71, Industrial Area, Phase-I, Panchkula-134113 through its Managing Director.
3. Parminder Singh, Managing Director, M/s Em Pee Motors Ltd., Pioneer Toyota, #71, Industrial Area, Phase-I, Panchkula-134113.

 

                                                                         ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:               Mr. Dharam Pal, President.

Mrs. Anita Kapoor, Member.

 

For the Parties:     Mr. Amit Kohar, Advocate for the complainant.

Mr.S.R.Bansal, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

 

1. The complainant has filed the present complaint against the OPs with the averments that he purchased a car having make Toyota Etios petrol version G Model Class Sedan on 16.10.2014 through its authorized dealer i.e. OP no. 2 for an amount of Rs. 6,03,000/- (Annexure C-1) including insurance, temporary registration charges, handling charges, warranty etc. vide Engine No. 2NRD058405, Chasis No. MBJB2ZBT2000857230314.  The complainant has taken all the additional things like road side assistance, insurance, extended warranty etc. for the aforesaid amount i.e. Rs. 6,03,000/-.  The complainant had registered his vehicle vide receipt No. A2360447 dated 02.12.2014 (Annexure C-2) for an amount of Rs. 40,030/- with high security registration plate charges of Rs. 375/-. Temporary certificate (Annexure C-4) of registration was issued on 16.10.2014 by Special Registering Authority, Patiala.  After delivery of the car, complainant noticed that the car was not starting properly. On 27.10.2014, the complainant informed the OP No. 2 regarding defect. The engineer of OP No. 2 visited the house of complainant and after examining the defect told the complainant that there was a starting problem and the vehicle was repaired by ‘Jump start (Flat Battery) (Annexure C-5) and also told that it would automatically adjust/become defect free after covering some mileage.  At the time of purchase of new car, the mileage of the new car was just 70 kms and it was running under warranty period.  But the same problem again occurred after few minutes and after two hours, the complainant informed the OP no. 2. The OP no. 2 sent his employee along with recovery van to the house of complainant who towed the vehicle of the complainant to his workshop at Panchkula with remarks starting problem (Annexure C6).  On 29.10.2014, Battery Engineer of OP no. 2 checked the default in car and after checking he gave the remarks “Battery Discharge condition received and battery need charge and load testing Ok, Battery is Ok and return to Toyota customer as on dated 29.10.2014”. After checking the car the Battery Engineer gave further remarks “Battery Ok & Return” (Annexure C-7).  Thereafter on 03.11.2014, OP No. 2 returned the car to the complainant with  remarks “TATA GREEN BATTERY CHK BY BATTERY ENGINEER & FOUND BATTERY WEAK, CHARGING DONE BY THEM, IF ANY MANUFACTURING PROBLEM GAVE BY BATTERY THEN WOULD BE REPLACE U/W” and also charged Rs.4/- (Annexure C-8). At the time of repairing the vehicle, the OP no. 2 assured the complainant that the defect would not arise in future. After two days, complainant informed the OP no. 2 that there was STILL a “starting problem” for which the engineer of OP no. 2 visited the house of the complainant and replaced the battery with new one with the assurance that it Would not give the same problem in future.  But thereafter, on 20.12.2014, the complainant faced the same problem i.e. “Starting Problem” and the complainant again informed the OP no. 2 that there was starting problem.  OP no. 2 sent vehicle recovery van to the house of the complainant and towed the vehicle of the complainant to his workshop at Panchkula with the remarks “Starting Problem” (Annexure C-9).  But till 29.12.2014 the complainant was not informed by the OP no. 2 or his employee about the status of the car. On 14.12.2014, complainant slipped down in the market due to slippery road and fractured his left ankle from both the side.  On the same day, he went to the hospital and doctor took X-ray of the complainant. After conducting X-ray (Annexure C-10) found “Medical Malleolus and Distal 1/3 Fibula” in his left leg and major surgery was conducted upon him. The doctor advised the complainant for complete bed rest for three months. The complainant sent  legal notice dated 25.12.2014 and postal receipt (Annexure C-11 & Annexure C-12) to Ops no. 1 to 3 and requested them to replace the defective vehicle.  But no reply to the aforesaid notice sent by the Ops no. 1 to 3 to the complainant. The employee of OP no. 2 sent a vague and frivolous letter dated 27.12.2014 (Annexure C-13) to the complainant which was received on 29.12.2014 by the complainant.  Thereafter, complainant sent a reply dated 04.01.2015 (Annexure C-14) to the letter dated 27.12.2014 issued by OP No. 2.  The act and conduct of the Ops amounts to deficiency in service on their part. Hence, this complaint.
2. OP no. 1 appeared and filed written statement by taking some preliminary objections and submitted that OP no. 1 is a company incorporated under Companies Act, 1956 and is represented by its Deputy General Manager.  It is submitted that the OP no 1 is one of the leading car manufacturers in India and is known for its quality reliable products. It is submitted that the relationship between answering respondent and OP no. 2 is on principal-to-principal basis.  It is further submitted that the present complaint is not maintainable because OP no. 1 has been impleaded as unnecessary party and as such the name of OP no. 1 be deleted from the array of the Ops. The OP no. 1 has its registered office in the State of Karnatka and it neither has any branch office nor carries any business within the territorial jurisdiction of this Forum. It is submitted that on 27.11.2014, OP no. 2 had replaced the battery of the complainant’s vehicle with a new battery under free of cost basis and on 20.12.2014, when the complainant raised issue regarding starting problem, the OP no. 2 immediately attended the complaint. On 25.12.2014, OP no. 2 had duly visited the complainant at his residence and during this visit, OP no. 2 explained to the complainant the entire diagnosis and the steps that were taken by OP no. 2 to solve the problem.  It is submitted that the complainant for reasons best known to him, is willfully not taking delivery of the vehicle even after repeated reminders from OP no. 2. Thus there is no deficiency in service on the part of OP no. 1 and prayed for dismissal of the complaint.
3.  OP no. 2 & 3 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that there is no negligence on the part of opposite party because it is neither having any defect what to talk of manufacturing defect, because due to mishandling the battery and its related push button problem, the battery got exhausted and thereafter it was checked and set right on 29.10.2014 with the remarks “Battery OK and returned”. It is submitted that the complainant as well as his family member are using the car comfortably without any problem and so much so, the complainant has nowhere alleged any kind of defect. Thus there is no deficiency in service on the part of OP no. 2 & 3 and prayed for dismissal of the complaint.
4. Rejoinder to the written statement of OP no. 1 to 3 has been filed by the complainant.      
5. Counsel for complainant has tendered into evidence by way of affidavits Annexure C-A & Annexure C-B alongwith documents Annexure C-1 to C-15 and closed the evidence. On the other hand, counsel for Ops has tendered into evidence by way of affidavits Annexure R-A to R-C alongwith documents Annexure R-1 and Annexure R-2 and closed the evidence.
6. We have heard learned counsel for the parties and have carefully gone through the record of the case.
7. The Ld. Counsel appearing on behalf of OPs argued, at the very outset, that D.C.F. Panchkula has no territorial jurisdiction to try this complaint inasmuchas the sale thereof have been made by a dealer at Patiala and further that no cause of action had arisen for the filing of the complaint at Panchkula.
8. The plea was vigourously resisted by the Ld. Counsel for the complainant who argued that the dealer at Patiala is only a sister concern of respondent No.2 which is located at Panchkula. It was also argued, in the context, that respondent No.2 and 3 had not raised any objection relatable to jurisdiction of DCF, Panchkula in the course of written statement and, thus, that disputed question of law and fact could not be argued for the first time during the course of hearing.
9. We find ourselves in agreement with the plea made on behalf of the OPs. Though it cannot be controverted that a purely legal objection can be raised even at the time of hearing without it having been pleaded at the trial, the OPs cannot wished away the fact that challenge to jurisdiction had to be ideally raised in the pleadings at the trial, particularly when the addresses of the concerned OPs indicated that they are based at Panchkula. It also cannot be wished away that respondent No.2 had been impleaded through its Managing Director who is based at Panchkula and that averment on point of fact was not controverted in the course of the written statement filed on behalf of respondent No.2 and 3. Further, the factual averments in the complaint about the defective vehicle having been checked at Panchkula were not controverted. The deficiency in the functioning of the vehicle having been checked and averredly rectified at Panchkula, it cannot be validly argued that DCF, Panchkula has no territorial jurisdiction to try this complaint.
10. It is apparent from a perusal of the pleadings made by the party that the defect in the starting of the vehicle occurred almost soon after its purchase by the complainant and he lodged a complaint without any inordinate delay. Though the OPs are proved to have acted quickly to take steps to rectify the defect, it is equally apparent that the defect of starting problem could not be rectified in toto. If a new vehicle starts giving starting trouble, for the averred or whatever reasons, the inescapable inference is that there was deficiency in service on the part of OPs whose Engineers could not get over the defect completely inspite of repeated attempt.
11. Insofaras the delay on the part of the complaint in collecting the vehicle on the last occasion is concerned,no blame can be attributed to him firstly because the OPs did not respond to the legal notice served upon them by the former. Even otherwise, there is documented proof on the record to the effect that the complainant had sustained a fracture on 14.12.2014 and he had to undergo major surgery and a 1/3 tubular plate 10H for fibia had to be inserted and wire and screw for medial malleolus provided in the left leg and he was advised complete bed rest for the period of 03 months. 
12. Even at the cost of repetition, it may be recapitulated that the car had been purchased by the complainant on 16.10.2014 and the starting problem appeared on 27.10.2014. The vehicle had covered at distance of about only 70 kms. by that time. The present was, thus, a case wherein the complainant had purchased a Toyota vehicle, an international brand name, at a cost of more than Rs.6 lacs (including insurance and temporary registration charges etc.) and he came across starting trouble in that vehicle. It is only the charge of deficiency in service which legitimately sticks to the OPs and they cannot get away with any acceptable explanation.
13. While, thus, allowing the complaint, we would direct the OPs to deliver the vehicle to the complainant after it is examined by the Engineers of OP No.2 in the presence of the complainant who would be duty bound to take the vehicle along only after the issuance of a certification by the Engineers that the fact has been rectified in toto. The needful shall be done within 10 days of the receipt of a copy of this order by the OPs who shall notify the date of examination of the vehicle to the complainant by registered post. However, the complainant shall be entitled to a sum of Rs.30,000/- as a compensation for the mental agony and harassment undergone by him. He shall also be entitled to a sum of Rs.5,000/- as the cost of litigation. While the compliance of the first facet shall come about within 10 days of the receipt of a copy of the order by the OPs, the other facet with regard to the payment of compensation shall be complied with within a period of one month from the date the communication thereof to them comes about. The liability of the OPs to comply with the latter part of the order shall be joint and several.
14. This order be complied with within 30 days from the receipt of certified copy of this order.  A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

 

Announced

10.07.2015                     ANITA KAPOOR                   DHARAM PAL

                                       MEMBER                                PRESIDENT

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                                     DHARAM PAL 

                                                     PRESIDENT