Chandigarh

DF-II

CC/535/2014

Savita Kumari - Complainant(s)

Versus

Toyota Kirloskar Motors - Opp.Party(s)

Sh. Paras Money Goyal Adv.

23 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	535 of 2014
Date  of  Institution	:	16.10.2014
Date   of   Decision	:	23.03.2016

 

 

 

 

 

Savita Kumari w/o Sh.Sanjiv Joshi, R/o H.No.1012, Phase-3B2, Mohali, Punjab 170055

 

             …..Complainant

Versus

 

1]  Toyota Kirloskar Motors, Plot No.1, Bidadi Industrial Area, Ram Nagar Taluk, Bengaluru (Bengalore) 5621059

 

2]  Em Pee Motors Ltd., Pioneer Toyota, Plot No.177-H, Industrial Area, Phase-1, Chandigarh, through its authorised representative. 

 

3]  New India Assurance Company Limited, SCO No.15, Sector 30, Chandigarh, through its Manager.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

       

 

Argued by:-

            Sh.Gaurav Bhardwaj, Counsel for complainant  

Ms.Dhriti Sharma, counsel for Opposite Party No.1

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

Opposite Party No.3 exparte.

 

PER JASWINDER SINGH SIDHU, MEMBER

 

 

          As per the case, the complainant purchased a Etios GD LMV Car, manufactured in March, 2013, from OPs, for his personal use and got it registered against Regd. No.PB-10DL-0111 (Ann.C-1) and got it insured with Opposite Party NO.3 vide policy Ann.C-3.  It is averred that in the first week of July, 2014, the air-condition installed in the car stopped functioning and foul smell started emanating from AC/Blower and when it was taken to Opposite Party No.2 for repair, it was noticed that due to unwanted entry of mouse from lower portion of the car, the damage to the AC kit of the car was caused by the mouse because no instrument/arrangement was installed by the manufacturing company in order to stop unwanted entries of mice, snake insect etc., whereas other manufacturing companies made such provisions.  It is also averred that during service of the car, it was found that the mouse had cut and damaged AC kit, mats etc. inside the car and mouse had died in the engine/AC kit of the car, which resulted into foul smell, due to which it became unbearable to sit and travel in the car.  Accordingly, the complainant has to get the AC of vehicle repaired from Opposite Party No.2 and made payment of a sum of Rs.37,000/- for the same.  It is pleaded that besides loss of money, the car of the complainant was held up by Service Company for one week and she also faced a lot of harassment and mental tension and suffered monetary loss. Thereafter, the complainant also lodged a claim with Opposite Party No.3, but it did not honour the claim, though it was duly covered under the policy. Hence, this complaint has been filed.

 

2]       The Opposite Party NO.1 has filed the reply and admitted the sale of the vehicle in question.  It is submitted that the subject vehicle is not defective, inherently or otherwise, the design along with technology applied in the Etios is approved under rule 126 of the Motor Vehicle Rules, 1989 followed with grant of mandatory certificate under Form No.22 of the Motor Vehicles Act certifying road worthiness thereof.  It is also submitted that rodent ingress (based upon feedback obtained) is complained of by the complainant not before July, 2014 and the subject vehicle then was found to have done 16500 odd kilometers over 16 months from date of purchase thereof.  That the claim about rodent ingress having been facilitated from design flow is a misconception and/ or ill-perceived proposition.  It is pleaded that repairs and/or replacements necessitated from rodent ingress is not covered under manufacturer’s warranty.  Rest of the allegations have been denied with a prayer to dismiss the complaint.

 

          The Opposite Party No.2 has also filed reply and admitted the sale and repair of the vehicle in question.  It is stated that the entering of mouse in the below side of the car is not controllable nor can be controlled. It is also stated that vehicle was repaired to the entire satisfaction of the complainant.  That the legal notice of the complainant was duly replied by the answering Opposite Party.  It is pleaded that the complainant has not filed any cogent and expert evidence in order to prove his case. Pleading no deficiency in service and denying other allegations of the complainant, it is prayed that the complaint be dismissed.

 

         The Opposite Party No.3 though being duly served through notice sent through registered post-dated 31.7.2015, failed to put in appearance on 4.9.2015, thus raising presumption under Sub-clause (2) of Regulation 10 of The Consumer Protection Regulations, 2005, was proceeded exparte vide order dated 4.9.2015.

 

3]       Parties led evidence in support of their contention.         

 

4]       We have heard the ld.Counsel for the parties and have also perused the record.

 

5]       The complainant, who is the owner of Toyota Etios GD car, purchased it on 12.7.2014, and the vehicle had covered nearly 16500 kms till the fateful event of damage to its Air Conditioning system, which was reported and brought to the workshop of Opposite Party No.2 with the problem of a foul smell emanating from the air conditioning air-ducts. When the vehicle was serviced, a bill of Rs.37002/-, which included the service of the air conditioning unit and some other consumables too were used, namely, fuel filter, coolant, Element Asy fuel filter etc.   

 

6]       Though Opposite Party No.1, which is the manufacturer of the vehicle in question, has claimed that all its vehicles are manufactured as per the specifications and the same is made available for sale after having undergone stringent quality control checks.  As the complainant, though having alleged manufacturing defect in the vehicle on account of the access of rodent inside the air conditioning system, there is no expert report from a qualified expert to prove that the access of the rodent/mouse is on account of any manufacturing defect in the vehicle.  Thus, claiming no deficiency in service on account of manufacturing defect in the vehicle, Opposite Party No.1 has sought dismissal of the complaint qua it on this score. 

 

7]       The Opposite Party No.2, which has repaired the vehicle in question and has acknowledged the presence of a mouse in the air-ducts of the air conditioning system of the car, has failed to place on record the job card pertaining to the repair of the vehicle on the given date, when the same was brought to its premises, when the air conditioning unit of the vehicle in question was non-functional and a foul smell emanated from the air-ducts.

 

8]       Though we understand that the complainant having alleged that there was no barrier or wire-mesh to stop the access of any foreign-body inside the air-ducts of the air conditioning unit, and the dead mouse recovered from the air conditioning unit had entered it through the air ducts by bringing any expert opinion on record, but in the given scenario the absence of job card, which is in the custody of Opposite Party No.2 and has not been placed on record by it to make us understand about its observations with regard to the presence of rodent/mouse inside the AC unit, compels us to believe that there is a deliberate attempt to cover-up the actual fact about the existence of a barrier or a wire-mesh in the air-ducts of the vehicle in question. In the given situation, the allegations of the complainant, which are duly supported by her sworn affidavit, prevailed against pleadings of Opposite Party No.2, which has failed to place on record the product literature of the vehicle in question and the job card in question, which was prepared at the time of taking the vehicle inside its workshop for necessary repairs.  The reply of Opposite Party No.2 is totally hollow and has no basis, as there is no report from the Workshop Manager or the person, who had opened the air conditioning unit of the vehicle in question, as he was the best person to make such facts come to light, after which the onus of bringing the expert opinion by the complainant in order to support its averments.  Even the absence of product literature clarifying that no wire-mesh is installed in the air-ducts of the vehicle in question at the time of its manufacture, which would have falsified the claim of the complainant that the same is a manufacturing defect. 

 

9]       Even Opposite Party NO.1, the manufacturer of the vehicle in question, has not placed on record the product details of the vehicle in question and specifically of the air conditioning unit.  In the given situation, the averment of the complaint, which are duly supported by the sworn affidavit of the complainant, go unrebutted and Opposite Party NO.1 & 2 are held deficient in rendering proper service to her, due to the lack of proper safeguards discouraging the entry of any foreign-body inside the air conditioning unit either directly or through air-ducts of the vehicle. 

 

10]      In the light of above observations, we are of the concerted view that the Opposite Parties No.1 & 2 are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua OPs No.1 & 2 jointly & severally and dismissed qua Opposite Party NO.3. The Opposite parties No.1 & 2 are jointly & severally directed as under:-

 

[a]      To refund Rs.34,821/- (paid against the repair of AC Unit) to the complainant;

 

[b]      To pay Rs.15,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service.

[c]     To pay Rs.7,000/- towards litigation expenses to the complainant. 

         The above said order shall be complied within 45 days of its receipt by the Opposite Parties No.1 & 2 jointly & severally; thereafter, they shall be liable to pay an interest @18% per on the amount mentioned in sub-para [a] & [b] above from the date of filing of this complaint till it is paid, apart from paying litigation expenses of Rs.7,000/-.

 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

 

Announced

23^rd March, 2016                                                         

                                                                       

 (RAJAN DEWAN)

PRESIDENT

 

 

 

(JASWINDER SINGH SIDHU)

MEMBER

 

 

 

(PRITI MALHOTRA)

MEMBER

Om                                                                                                                        

 

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.535 OF 2014

PRESENT:   None   Dated the 23rd day of March, 2016

O R D E R                        Vide our detailed order of even date, recorded separately, the complaint has been allowed against the Opposite Parties No.1 & 2 and dismissed qua Opposite Party No.3.                     After compliance, file be consigned to record room.

 

(Priti Malhotra)	(Rajan Dewan)	(Jaswinder Singh Sidhu)
Member	President	Member