Punjab

Ludhiana

CC/15/98

Avtar Singh - Complainant(s)

Versus

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

Pardeep Kumar

20 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.98 of 16.02.2015

Date of Decision          :   20.03.2017

 

Avtar Singh aged about 38 years son of Sh.Niranjan Singh, resident of VPO. Barsal, Tehsil Jagraon, District Ludhiana.

….. Complainant

Versus 

 

1.M/s Toyota Kirloskar Motors Pvt. Ltd., Bangalore, through its Managing Director/Chairman/Authorized Signatory.

2.M/s Radiant Toyota, Chadha Super Cars (P) Limited, Ferozepur Road, village Bhanohar, District Ludhiana through its Managing Director/Authorized Signatory.

 

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant           :         Sh.Pardeep Nanchahal, Advocate.      

For Ops                         :         Sh.M.S.Sethi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn of unnecessary details, the case of the complainant is that he purchased a car of Etios GD make from OP2, the authorized dealer of OP1, vide invoice No.TAX14-06724 dated 7.5.2014 bearing registration No.PB-10-DT-5291 for Rs.6,81,672/-. At the time of purchase of the vehicle, Ops assured that the vehicle is one of the best vehicle available in the market because the same belongs to a brand having good reputation. After purchase, the complainant started plying the vehicle and found as if water used to come inside from the LHS headlamp assembly and even dust is coming inside from all the doors. Noise from the suspension even used to be emitted. After finding these defects, complainant approached Ops and initially their mechanic made some repairs with assurance that defects have been removed. However, after sometime, complainant noticed as if the defects have not been removed because the same still persists. Copies of job sheets issued by Ops showing the regular visits and defects in the vehicle alleged to be enclosed with the complaint. Despite numerous requests for removing the defects, nix has been done and as such, the car is lying unused with Ops. The car is in within the warranty period and as such, Ops are under obligation to replace the car with new one. Complainant suffered lot of mental tension, pain and torture, due to non replacement of the vehicle and non removing of the defect and further due to putting of the matter time and again with lame excuses by Ops. After serving legal notice dated 21.1.2015 through counsel, complaint filed by claiming that frivolous letter sent by Ops to the complainant. By pleading deficiency in service on the part of Ops, prayer made for directing Ops to replace the car with new one and also for directing Ops to pay compensation of Rs.3 lac on account of mental tension and agony. Rs.11,000/- also claimed   as litigation expenses.

2.                In written statement filed by Op1, it is admitted that OP1 is manufacturer of Toyota brand automobile and same is leading and prominent manufacturer of the car in automobile industry. Relationship between OP1 and dealer is on principal to principal basis. Dealers purchases vehicles and parts thereof from OP1 by paying the price and in turn they sells the same to their customers. Issue relating to booking, delivery, cancellation, servicing, customers relations etc.,are independently handled by the dealers. OP1 is not responsible for the acts and omissions of OP2 or their authorized signatory. Complaint alleged to be filed for abusing the process of law and same even alleged to be not maintainable due to suppression of material facts. The warranty clause provides for repair or replacement of the parts found defective in material or workmanship under normal use. Complainant failed to prove the existence of any defective part requiring replacement and as such, he is not entitled to claim the relief prayed for. Rather, the complainant failed to get the requisite services done well in time as per norms and as such,  for the omissions on the part of the complainant, Ops cannot be penalized. At the time of getting the services, complainant should have lodged the complaint, but he failed to do so and had been taking the vehicle in satisfactory condition. So, complaint alleged to be filed with malafide intention by making the claim on baseless allegations. On the basis of complaints lodged by the customer visiting OP2 on different dates, Op2 performs the job. These job cards are duly signed by the customer in token of satisfactory note. Jobs carried by OP2 under the signatures of visiting customer does not amount to manufacturing defect, particularly when customer signed the job cards for recording satisfaction. Admittedly, the complainant purchased the car in question from OP2 vide invoice dated 14.6.2012. That car was in warranty period till 13.6.2015. However, Ops are not under obligation to replace the car with new one because there is no clause in the warranty booklet in that respect. Complainant has not disclosed the nature of the defects and as per produced documents, there is no question of rendering deficient/negligent services. Each and every other averment of the complaint denied by praying for dismissal of complaint.

3.                In separate written statement filed by OP2, it is claimed that relationship of Ops are on principal to principal basis as referred above. Complaint alleged to be filed for abusing the process of law by suppressing the material facts. Warranty conditions provides for repair or replacement of the parts found defective in material or workmanship under normal use only. Complainant has not placed any material on record to show the defects in the parts requiring replacement. Besides, it is claimed that the complainant failed to get the requisite services done in time as per norms. No complaint ever lodged by the complainant for establishing that replacement of the car required. Even no complaint lodged with Ops about the performance of the vehicle at the time of getting the service done. Rather, the complainant had been taking the vehicle in satisfactory condition. Complainant visited OP2 on 4.7.2012, when the car travelled distance of 1049 Kms, despite the fact that service was required on 1000 Kms. Besides, the complainant visited OP2 on 7.5.2014 for replacement of tail lamp, but for AC service etc on 13.5.2014 and lastly on 23.12.2014 for claiming that smell comes out of AC blower and there is a gas leakage. However, on detailed investigation, it was found on 27.12.2014 that blower assembly was destroyed by Rat. It was on account of that the vehicle was spreading smell. From  inside  the vehicle, a dead body of rat was       found. Blower assembly was required to be replaced, but the complainant objected to the same by not giving permission for replacing the same. Complainant was requiring replacement of the blower assembly under warranty, despite the fact that same was not covered under the warranty. Complaint alleged to be filed with malafide intention by levelling vague, baseless and false allegations. As and when the complainant visited OP2 on different dates, due services were provided against signing of the job cards by the complainant in token of satisfactory note. No manufacturing defect exists in the vehicle. OP2 carried the repair on 8.1.2015 as per instruction of the complainant. The complainant was required to pay the repair charges of Rs.5843/-. Intimation in this respect was sent through SMS as well as through writing dated 14.2.2015, but the complainant failed to pay the repair charges. Even through letter dated 14.2.2015, the complainant was called upon to pay the parking charges of Rs.150/- per day. Admittedly, the complainant purchased the car in question from OP2 on 14.6.2012. The car was within the warranty period until 13.6.2015. There is no clause in the warranty booklet providing for replacement of the car with new one. Each and every other averment of the complaint denied by claiming that no deficient or negligent services rendered by Ops.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with affidavit Ex.CB of his wife Smt.Kamaljit Kaur and even tendered documents Ex.C1 to Ex.C21 and thereafter, his counsel closed the evidence.

5.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA1 of Mr.Shrinivas P.Gotur, Depty General Manager, Legal and Company Secretary of OP1 along with documents Ex.R1 and Ex.R2 and then closed the evidence.

6.                Counsel for OP2 tendered in evidence affidavits Ex.RA2 and Ex.RA3 of Sh.Vivek Sharma, General Manager with Radiant Toyota Chadha Super Cars Pvt. Ltd and of Sh.Nirmaljit Singh, Chief General Technician along with documents Ex.R3 to Ex.R7 and then closed the evidence.

7.                Written arguments not submitted by any of the parties. Oral arguments of counsel for parties heard and records gone through minutely. 

8.                Admittedly, the car in question was purchased by the complainant from OP2 through invoice and thereafter, the car was delivered to the complainant on 14.6.2012 as revealed by copy of delivery note Ex.C17. Ex.C1=Ex.C18 and Ex.C2=Ex.C19 are the customer receipts showing payment of Rs.40,000/- and Rs.1,67,000/- respectively by the complainant to OP2 on 11.6.2012 and 14.6.2012. Admittedly, the car remained in warranty period upto 13.6.2015 because the same facts admitted in the written statement filed by each of Ops. Copy of warranty booklet and owner’s manual is produced on record as Ex.R1 and Ex.R2.

9.                After going through Ex.R2, it is made out that warranty period begins from the date of sale of the vehicle to the first customer and as such, this warranty was to commence w.e.f.14.6.2012, the date of delivery mentioned in Ex.C17. As per terms of basic warranty coverage contained in Ex.R2, the warranty was with respect to the repair or replacement of the parts found defective in material or workmanship under normal use except those items listed under ‘What is not covered’. This warranty was to remain in force for a period of 36 months or up to the mileage of 1,00,000 Kms, whichever comes first are also the contents of Ex.R2. There is no warranty condition clause in Ex.R2 providing replacement of the car with new one and as such, as per contract of the warranty, certainly Ops not liable for replacement of the car with new one. However, obligation/liability of Ops remained to the extent of repair or replacement of the parts that were found defective in material or workmanship only. Submission advanced by counsel for Ops in this respect certainly has force.

10.              Affidavit Ex.RA3 of Mr.Nirmaljit Singh, The Chief General Technician establishes that he examined the vehicle in question on 22.12.2015 during pendency of the complaint and found that allegations of entering of the water inside from the LHS head lamp assembly as well as of coming of dust inside from all the doors along with noise from suspension are baseless. Rather, on such examination, this noise not found and the vehicle was found in perfect condition, fit for driving as per contents of affidavit Ex.RA3.   No counter expert report has been produced on record by the complainant and as such by keeping in view the contents of affidavit Ex.RA3 of Chief General Technician of OP2, there is no escape from the conclusion that car was in OK condition on 22.12.2015. If that be the position, then certainly complainant bound to get the car back after such examination by the Chief General Technician of OP2 at any time after 22.12.2015 at least.

11.              Letter Ex.R3 dated 14.2.2015 was sent by OP2 to the complainant for informing him that repair of the vehicle in question carried on 8.1.2015 regarding which explanation through SMS has been sent and even through various telephonic reminders for calling upon him(complainant) that he is liable to pay Rs.5843/-, the repair charges. Through Ex.R3, the complainant was called upon to take delivery of the vehicle in question as soon as possible otherwise, parking charges @Rs.150/- per day will be recovered from the complainant. This notice was sent through registered post to the complainant on 16.2.2015 as revealed by contents of copy of postal receipt printed on top of Ex.R3 itself. So, certainly submission advanced by counsel for OP2 has force  that the complainant insisted for non-payment of the repair charges of Rs.5843/- and that is why he is not getting back the vehicle. Even letter Ex.R4 of date 19.1.2015 is on the same lines and that letter was sent through registered post on 23.1.2015 is a fact borne from perusal of copy of postal receipt Ex.R5. So, submission advanced by counsel for OP2 certainly has force that despite issue of letters Ex.R3 and Ex.R4, complainant not getting delivery of the vehicle for avoiding payment of Rs.5843/-, the repair charges. Even if that be the position, despite that it needs be determined as to whether OP2 entitled for these repair charges of Rs.5843/- or not?

12.              Perusal of Ex.R6, invoice dated 7.5.2014 shows that replacement of tail lamp and work of Lens, RR Co LP, LH was done on the vehicle in question, when it travelled distance of 21102 Kms. Perusal of Ex.R7, the job sheet dated 4.7.2012 reveals that no amount was charged from the complainant while rendering services on mileage of 1049 Kms or within 12 months. These services were rendered when the vehicle travelled distance of 1049 Kms up to 30.6.2012. So, contents of these documents establishes that   first service was rendered without charging anything from the complainant, but for service of 7.5.2014 carried within three years of warranty, amount of Rs.1469/- charged for replacement of the tail lamp etc. Ex.C3 and Ex.R6 is one and the same thing, but Ex.R7 and Ex.C4 is one and same thing. Copy of insurance policy produced on record as Ex.C5 and that of registration certificate of the vehicle produced as Ex.C6. Vehicle in question was brought through pick and drop services on 24.12.2014 with declaration by the complainant of paying the charges of pickup and drop-off is a fact borne from the contents of Ex.C7. Ex.C8 is the same thing as is Ex.R4. Registered notice Ex.C10 was sent by the complainant to Ops through postal receipts Ex.C9 for claiming that Ops failed     to do the needful repair by replacing the car with new one. However, such replacement was not required at all in view of the pointed out defect and by keeping in view the terms of warranty clauses and as such, request for replacement of the car not liable to be entertained at all.  Ex.C11 to Ex.C13 are the documents showing that the vehicle was insured.

13.              Ex.C14 is the history of jobs carried on the car in question. Though, counsel for OP2 vehemently denied about the contents of Ex.C14 to ex.C16, but these are the documents generated on computer and as such, authenticity of the same could not be doubted, particularly when relevant dates of repair as 4.7.2012, 7.5.2014, 13.5.2014 and 23.12.2014 specifically admitted in para no.6 of the written statement filed by OP2.

14.              Perusal of Ex.C14 reveals that the car in question was carried by the complainant to OP2 on 12.09.2012 with problem of water coming inside LHS head lamp assembly; dust coming inside from all doors and noise from rear side on rough road erupts. However, in the carried job works, it is mentioned that noise from the rear side was checked and was found OK and all the doors were checked and found OK. Only single mat was found in the vehicle. This problem as such reported by the complainant for the first time after about three months of the purchase and not before that, when the car travelled distance of 3626 Kms. However, this problem was not reported on 4.7.2012, when the first service was got done as revealed by contents of Ex.R7=Ex.C14. Perusal of Ex.C14 further reveals that before 12.9.2012, the car was taken to the premises of OP2 on 30.6.2012, 16.6.2012 and 7.6.2012. Such problems in the car occurs when the vehicle taken on rough road. So, by keeping in view the    entries of 12.9.2012 recorded in Ex.C14, it is obvious that problem of noise from rear side erupted due to running of the car on rough road, which is not a normal condition of use. As and when, the vehicle run on rough road, then stress on the suspension, shockers etc., bound to be there. As and when such stress put on shockers, suspension etc., by running the vehicle on rough road, then some noise may erupt and as such, same cannot be treated as manufacturing defect at all. Such defect can be rectified and the same was done on 12.9.2012 itself. However, the car was taken on 6.4.2013 with problem of noise from rear side, but without problems of entry of water or of dust coming inside and as such, it is obvious that problems of water entry and or  dust as reported on 12.9.2012 were removed and that is why those defects not reported on 6.4.2013.

15.              Perusal of Ex.C15 reveals that the above pointed defects of noise from rear side or of entry of water or of dust not reported when the car brought to OP2 on 7.5.2014, 19.4.2014, 12.4.2014 and 27.4.2013. Rather, on 19.4.2014, replacement of the shockers was done and only service of AC was done along with that of washing and cleaning. Problem of eruption of bad smell even was reported on 19.4.2014, but not on the subsequent date of 7.5.2014 and as such, it is obvious that virtually problems emerging were removed from time to time. Adjustment of all the doors trim was done on 24.12.2014 along with NVH kit, seal bolt. Dusty filter was cleaned and underbody was checked for finding the shocker and hinged door in Ok condition. Even problem of bad smell was reported on 13.5.2014 is a fact borne from the contents of Ex.C16. Problem of eruption of noise from speakers and from the suspension even reported on 13.5.2014 is a fact borne from the contents of Ex.C16. So, from all this, it is made out that repairable problems of noise coming from the engine were reported on few occasions, but not on every occasion, when the car taken to the premises of OP2. The repairs for removing these defects were carried out and that is why the vehicle found in Ok condition on 22.12.2015 by the Chief Mechanical Engineer as discussed above and as such, complainant entitled to get back the vehicle at earliest. Intimation of due repair has not been given by OP2 to the complainant after 22.12.2015. In view of non-sending of such intimation by OP2 to the complainant, OP2 not entitled to charge the parking charges at all. However, the problems of noise eruption has to be removed by doing the necessary repairs free of costs because those are covered within the warranty period and as such, directions needs be issued to the Ops to carry out the necessary repairs in the vehicle of the complainant free of costs.

16.              In case titled as M.N.Projects Pvt. Ltd. vs. Ashok Leyland Limited and others-2009(3)CLT-137(N.C.), it was found that when the complainant not produced the report of any independent surveyor or engineer for establishing the existence of manufacturing defect, then he is not entitled for availing the services, particularly when he got the repair done from unauthorized workshop on several occasions. Manufacturing defect in this case also not established, but at the same time, it is not the case of Ops that the complainant got the repair carried from unauthorized workshop and as such, benefit available from this reported case is to the extent that replacement of the car must not be ordered, particularly when the complainant failed to establish the manufacturing defect.

17.              As per law laid down in case FLT.LT. M.P.Singh vs. Tata Engineering and Locomotive Co.Ltd. and others-IV(2005)CPJ-371(Union Territory Consumer Disputes Redressal Commission, Chandigarh), in case vehicle taken to the workshop 11 times in 9 months, then in view of mental torture and harassment, compensation should be allowed. However, in case before us, conduct of complainant in not taking the delivery of car despite non existence of manufacturing defect denudes him from claiming compensation. Benefit from ratio of case titled as General Motors India Private Limited and another vs. Maj.General (Retd.) B.S.Suhag-I(2009)CPJ-548(Haryana State Consumer Disputes Redressal Commission, Panchkula) can’t be availed by the counsel for complainant because in the reported case, it was proved that the vehicle sold to the complainant after repair by disclosing as if the same is a brand new car. That is not the position in the case before us because manufacturing defects of irreparable  nature  are not at all established. Rather, defects of noise or of entry of water etc., can be cured by providing due services.

19.              It is the duty of dealer and manufacturer to repair the defects within the warranty period even by replacing the defective parts is the proposition of law laid down in case titled as Alfa Automobiles vs. Gopinath Trading company and another-II(2006)CPJ-524(Rajasthan State Consumer Disputes Redressal Commission, Jaipur). As pointed out defects of entry of water and of dust or of noise liable to be rectified by Ops, free of costs because of vehicle being within the warranty period and as such, directions needs be issued to Ops to repair the vehicle in question free of costs within 30 days from the date of receipt of copy of this order. In view of non removal of those defects, OP2 not entitled to claim parking charges. After due repair of the car in question, intimation will have to be sent in writing to the complainant within 7 days of repair of the vehicle. Complainant himself did not respond to the letters Ex.R3 and Ex.R4 sent by OP2 to him and as such, virtually the complaint has been filed without responding to the pleas taken by OP2 through these letters/notices. In view of that also the complainant not entitled for claiming any compensation for mental harassment, particularly when replacement of tail lamp even took place on 7.5.2014 as disclosed by contents of Ex.C3=Ex.C20=Ex.R6 and the first service done without charging anything as revealed by contents of Ex.C4=Ex.C21=Ex.R7.

20.              Even if the vehicle has been sent 11 times to the workshop, despite that it is not a case, in which, defects were not removed. Rather, the defects were removed and that is why, they were not pointed out on some of the dates again and as such, deficiency in service on the part of OP2 cannot be inferred to the hilt because he attempted to remove the defects by replacing the assembly part even. It cannot be said that report of Chief Technician of Ops is false, due to which reliance on Ex.R3 cannot be placed because material to the contrary has not been produced.

21.              Therefore, as a sequel of the above discussion, complaint allowed in terms that Ops will repair the vehicle in question free of costs within 30 days from the date of receipt of copy of this order. No parking charges will be claimable by Ops from the complainant. Complainant will receive the vehicle after repair at earliest. Intimation of due repair will be sent by OP2 to the complainant within 7 days of repair of vehicle. No order as to compensation for mental harassment and litigation expenses is passed. Copies of order be supplied to the parties free of costs as per rules.

22.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:20.03.2017

Gurpreet Sharma.