Chandigarh

StateCommission

CC/722/2017

Kulpreet Kaur Prop. SGS Marketing India Inc - Complainant(s)

Versus

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

In Person

22 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	722 of 2017
Date of Institution	:	04.10.2017
Date of Decision	:	22.05.2018

 

Kulpreet Kaur Prop. SGS Marketing India Inc, Plot No.11 & 12, First Floor, Adjoining 94.3 MY FM, Sector 25 D, Chandigarh- 160014, 9216429548

……Complainant

V e r s u s

1. Toyota Kirloskar Motors Pvt. Ltd., having registered office at Plot No.1 Bidadi Industrial Area, Ram Nagar Taluk Bangalore/Bengaluru Karnataka, 562109, through its Managing Director.
2. Pioneer Toyota, Plot No.177, H & I, Industrial Area, Phase I, Chandigarh, through its Managing Director.  

                                              .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       

Sh. Swaranjeet Singh Sodhi, husband of the complainant.

Ms. Dhriti, Advocate for Opposite Party No.1.

Sh. S.R.Bansal, Advocate for Opposite Party No.2.

 

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the complainant had purchased new Toyota Corolla Altis Diesel Car worth Rs.18.39  lacs from Opposite Party No.2 on 29.05.2014. After its purchase, the noise from the tyres started coming at 9603 kms. The said fact was brought to the notice of Opposite Party No.2 on 26.09.2014 but its reply was very casual that “this is the normal wear and tear”. Thereafter, the matter was again reported to Opposite Party No.2 on 27.02.2015, as humming sound from the tyres started emanating at 19238 kms & 19250 kms. It was stated that on 14.08.2015 the vehicle had already covered a distance of 21014 kms but Opposite Parties were not able to diagnose the exact problem and, therefore, they decided to change all four tyres and two front shockers under goodwill program. Thereafter, right hand side alloy wheel were replaced under goodwill program at 31911 kms. On 09.02.2016 both the seat belts were found defective and were also replaced under goodwill program. Again, the complainant approached Opposite Party No.2 for unbearable humming sound in the tyres at 39451 kms and thereafter at 39621 kms, where, they observed that right hand side rear shockers is weak and needs replacement under so called goodwill program under warranty. The correspondence was exchanged between the parties, which was mentioned in para No.10 of the complaint. It was further stated that on 17.03.2016, the rear shockers (RHS & LHS) alongwith RR Beam Assy, RR Axle tube and all the four tyres were replaced. It was further stated that the engineers of the Opposite Parties were only experimenting by, hit and trial method without understanding the fact that the vehicle is defective and the problem of noise in the tyres is emanating due to the technical fault in the vehicle. Again on 12.04.2017 the complainant took the vehicle to the workshop of Opposite Party No.2 and the same humming sound were present and heavy noise during the driving was noticed, despite the vehicle being serviced at the regular intervals at the workshop of Opposite Party No.2. It was further stated that the bulge was noticed on the LHS of the front tyre and the said fact was noticed by the service engineers of Opposite Party No.2 and accordingly technical engineer from Yokohama was summoned by Opposite Party No.2 but nothing was done. It was further stated that the complainant again went to Opposite Party No.2 with the complaint of high humming sound coming from the tyres and Opposite Party No.2 replaced the tyres with the new one of their demo vehicle. The road test was done but there was no noise. Then, the aforesaid Opposite Party replaced rear RHS tyre of the vehicle with original tyre and same noise was observed from that side. It was further stated that after the expiry of three years of comprehensive warranty, Opposite Party No.1 has renewed the same after payment of hefty amount of Rs.37,605/-. It was further stated that there is a manufacturing defect in the car, which amounted to deficiency, in rendering service, and indulgence into unfair trade practice on the part of the Opposite Parties. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           Opposite Party No.1, in its written statement, has stated that the complaint is liable to be dismissed on account of non-joinder of necessary party because the complainant admitted in her complaint that there is problem of noise in the tyres of the vehicle and the manufacturer of the tyres i.e. Yokohoma, which is a necessary party but the complainant failed to implead Yokohoma as Opposite Party. It was further stated that there is no manufacturing defect in the vehicle, as it is clear from page No.16 of the complaint that the mileage of the vehicle as on 26.09.2014 was 9603 kms and, therefore, it cannot be held that there is any manufacturing defect in the vehicle. It was further stated that since the date of purchase of vehicle i.e.28.05.2014 till 26.04.2017, the vehicle has run 65066 kms and as on today, it might have run more kilometers, which itself clearly shows that there is no manufacturing defect in the vehicle. It was further stated that the defect alleged by the complainant is of the tyres and, therefore, there is no deficiency in service on the part of the replying Opposite Party. It was further stated that in the invoice dated 26.04.2017 (page No.34 of the complaint), it has been mentioned that “All tyres replaced with demo car tyres”. Thereafter, road test done and found that there was no noise and then the Opposite Parties replaced rear RHS tyre of the vehicle with original tyre and same noise was observed from the side. The replying Opposite Party recommended customer to replace the uneven wear out tyre.  It was further stated that the matter of the complainant was duly dealt with the concerned dealer by Opposite Party No.1 vide email dated 17.03.2016, Opposite Party No.1 duly intimated the husband of the complainant that proper inspection was conducted and it was found that there was no defect in the vehicle. It was further stated that the case history and customer case record pertaining to the complainant clearly shows that the complainant was given the replacement of relevant parts and tyres under goodwill. It was further stated that the complainant has made false allegation against Opposite Party No.1 regarding manufacturing defect but she has failed to attach any expert report in this regard to support her allegations. It was further stated that the complainant is not a consumer, as per the Consumer Protection Act, 1986, as the said vehicle was purchased in the name of SGS Marketing India Inc. It was further stated that this Commission has no jurisdiction to entertain the complaint, as the replying Opposite Party is running its office in Bidadi Industrial Area, Ramanagara District, Karnataka and Opposite Party No.1 is running its business from State of Karnataka and selling its vehicle to the dealers on principal to principal basis. It was further stated that the replying Opposite Party had neither its office nor any branch office or carried any business within the territorial jurisdiction of this Commission. It was further stated that Opposite Party No.2 inspected the vehicle and found that the said noise was due to the tyres and they changed the tyres and two front shockers under goodwill program, which is clear from the invoice dated 14.08.2015 (page No.19 of the complaint). It was further stated that in the earlier invoice dated 17.02.2016, the complainant never intimated about the said problem, which he intimated on 19.02.2016. It was further stated that all the work done by Opposite Party No.2 was done under goodwill programme, without causing any inconvenience to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.

3.           Opposite Party No.2 in its written statement took almost similar objections as taken by Opposite Party No.1 i.e. non joinder of necessary party and the complainant is not a consumer. It was stated that there is no defect in the vehicle, in question, what to talk of manufacturing defect etc. It was further stated that the vehicle was properly checked and attended by the technical engineer of the replying Opposite Party in the presence of the driver as well as other occupants of the car, who had been visiting the workshop at Chandigarh and tyres, alloy-wheels and shockers were got replaced just to satisfy the occupant of the car but he was not satisfied. It was denied that there was any abnormal voice from the tyres, as alleged by the complainant.  It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.

4.           The complainant filed rejoinder to the written statement of Opposite Party No.1, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Party No.1.

5.           The Parties led evidence, in support of their case.

6.           We have heard Sh.Swaranjeet Singh Sodhi, husband of the complainant, Counsel for Opposite Party No.1 and Counsel for Opposite Party No.2, and have gone through the evidence and record of the case, carefully. 

7.          The first question that falls for consideration before us is as to whether the complaint is maintainable due to non-joinder of necessary party i.e. Yokohoma. The answer to this question is in the affirmative. Counsel for Opposite Party No.1 & Opposite Party No.2 state that the complaint is liable to be dismissed on account of non-joinder of necessary party, as the complainant admitted in her complaint that there was noise problem in the tyres of the vehicle and the manufacturer of the tyres is “Yokohoma” but the complainant failed to implead Yokohoma as a party in this case.  After going through the record, we are not impressed with the contention of Counsel for Opposite Party No.1 and Opposite Party No.2. It is, no doubt, true that Opposite Party No.1 i.e. Toyota Kirloskar Motors Pvt. Ltd. is a manufacturer and Opposite Party No.2 i.e. Pioneer Toyota is authorized dealer of Opposite Party No.1. It is also admitted that Opposite Party No.2 purchased the vehicle from Opposite Party No.1 for selling the same to its customers. It is obvious that Opposite Party No.1 i.e. manufacturer purchased some of the parts from other Companies and thereafter assemble in the vehicle. It is pertinent to note that how the complainant came to know that who is the manufacturer of the tyres. Even at the time of purchase, the customer gets impressed from the brand name. We are of the view that it is not the duty of the complainant to find the name of the manufacturer of the parts of the vehicle, rather it is the duty of the manufacturer to provide fault free vehicle to its customers and after purchase of the vehicle, if any, defects found, the same would be rectified promptly. So, we are of the view that Yokohoma is not a necessary party to the complaint and, hence, the plea raised by Counsel for Opposite Party No.1 and Opposite Party No.2 is rejected.

8.           The next question that falls for consideration before us is as to whether this Commission has jurisdiction to try and entertain the complaint. Opposite Party No.1 in its written statement took objection that Opposite Party No.1 is running its office in Bidadi, Industrial Area, Ramanagara, District Karnataka and Opposite Party No.1 is running its business from State of Karnataka and selling its vehicles to the dealers on principal to principal basis. Opposite Party No.1 further took objection that neither its office nor any branch office or carried any business within the territorial jurisdiction of this Commission. After going through the record, we are not accepting the contention of Opposite Party No.1. It is, no doubt, true that the office of Opposite Party No.1 is situated in Karnataka but the complainant purchased the vehicle from Opposite Party No.2 i.e. Pioneer Toyota, who is the authorized dealer of Opposite Party No.1, situated its office at Chandigarh, as such, Opposite Party No.1 cannot escape from its liability. Therefore, this Commission has jurisdiction to try and entertain the complaint.

9.           The next question that falls for consideration before us is whether the complainant falls within the definition of Consumer, as per the Consumer Protection Act, 1986. Counsel for Opposite Party No.1 and Opposite Party No.2 took objection that the complainant is not a consumer as the vehicle purchased in the name of SGS Marketing India Inc. It is evident from the Certificate of Registration, annexed by the complainant with the complaint, that the name of “SGS Markerting India Inc.” shown in the owner details of the aforesaid certificate. At the time of the arguments, husband of the complainant objected the said arguments raised by Counsel for Opposite Party No.1 and Opposite Party No.2 and state that the said vehicle was purchased in the name of the Company but it was for personal use of the complainant. In this regard, the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Crompton Greaves Limited & anr. Vs. Daimler Chrysler India Private Limited & Ors., Consumer case No.51 of 2006, the relevant portion of the aforesaid order reads thus :- 

“The learned counsel for the opposite party also relied upon the decision of this Commission in Interfreight Services Pvt. Ltd. Vs. Usha International 1(1995) CPJ 128 (NC), where this Commission inter-alia observed that the special remedy before the consumer forums can be invoked only by ordinary consumers, purchasing goods for their private and personal use and consumption and not by business organization buying goods for commercial purposes. There is no quarrel with the legal proposition that the provisions of the Consumer Protection Act are not for the benefit of business organizations buying goods for commercial purposes, but at the same time, such organisations are not ousted from the purview of the said Act, where the goods bought or the services hired or availed by them are not for commercial purposes.”

In view of above, the objection raised by Counsel for Opposite Party No.1 and Counsel for Opposite Party No.2 has no force, at all, and the same stand rejected.

10.          The next question that falls for consideration before us is as to whether the vehicle of the complainant has any manufacturing defect, if yes, whether the complainant is entitled for replacement of the vehicle with a new one. It is, no doubt, true that the complainant purchased new Toyota Corolla Altis Diesel Car worth Rs.18.39  lacs from Opposite Party No.2 on 29.05.2014. It is, no doubt, true that after the purchase of the aforesaid vehicle, the complainant was harassed due to humming noise from the tyres of the said vehicle. Firstly, the noise from the tyres started coming at 9603 kms and not only this, the complainant/her husband approached the office of Opposite Party No.2 many a times to rectify the aforesaid defect in the vehicle i.e. humming noise of the tyres i.e. on 26.09.2014, 27.02.2015, 14.08.2015 etc. but Opposite Party No.2 failed to rectify the aforesaid defect in the vehicle even after replacement of shockers, tyres etc. Even the technical engineer from manufacturer of the tyres i.e. Yokohoma was summoned by Opposite Party No.2, as is evident from invoice (at page No.33 of the file), who checked the tyres and thereafter written that “we will update to customer after 2 days” but it was not rectified. Moreover, Opposite Party No.2 replaced the tyres with the new one of their demo vehicle and road test was done but there was no noise. Then Opposite Party No.2 replaced rear RHS tyre of vehicle with original tyre and same noise coming from that side, as is evident from the invoice (at page No.34 of the file). Not only this, number of emails were written by the complainant to the Opposite Parties to remove the defects, which is mentioned in para No.10 of the complaint. After going through the invoices annexed by the complainant, it is clear that there was some defect in the vehicle i.e. humming noise in the tyres of the vehicle. It is not the case that the Opposite Parties failed to try to remove the aforesaid defect in the vehicle. Actually, many times Opposite Party No.2 replaced the parts with a new one in a goodwill program under warranty. With regard to replacement of vehicle is concerned, the complainant has failed to attach any expert report in this regard to support her allegations. Otherwise also, the complainant has miserably failed to establish any manufacturing defect in the vehicle, which as alleged, further resulted into noise from the tyres. However, in our opinion, though no case is made out for replacement of the vehicle, yet the Opposite Parties are liable to repair the vehicle to the satisfaction of the complainant, without charging anything from her. Since the complainant has suffered a lot at hands of the Opposite Parties by taking her vehicle again and again to the workshop of Opposite Party No.2 for necessary repairs, she is definitely entitled for compensation for mental harassment physical agony.

11.          In view of above, the complaint is partly accepted. The Opposite Parties are jointly and severally directed as under :-

i)            To repair the vehicle of the complainant, to the entire satisfaction of the complainant, without charging anything from her.

ii)           To pay compensation in the sum of Rs.50,000/- to the complainant.

iii)          To pay litigation expenses of Rs.25,000/- to the complainant.

iv)          The payment of awarded amounts mentioned at sr.nos.(ii) & (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(ii) & (iii) shall carry penal interest @10% p.a., from the date of filing of the complaint, till realization.

12.          Certified Copies of this order be sent to the parties, free of charge.

13.          The file be consigned to Record Room, after completion.

Pronounced.

May 22^nd, 2018                                      

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

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