Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he is businessman and he needs to go to New Mumbai and Nashik for business purpose.  He had purchased new car on 31^st March, 2011 and paid the amount of Rs.7,52,424/- plus VAT Tax Rs.94,053/-.  He has also paid handling charges, insurance, R.T.O. Registration and Service Charges Rs.1,01,611/-.  After taking delivery of the vehicle, the complainant recognized that the car was delivered to him without installing rare driver side light panel therefore the car was sent to the workshop of the O.P.No.2 in June-2011. In the month of July/August-2011, the car was driven only for 2313 Km and loud noise was arising from the front wheel and steering wheel therefore the car was sent for check up at the workshop of O.P.No.2.  The car was there for 16 to 17 days.  In the month of October-2011, the car was driven only for 6316 Km. The car was required to send to the workshop to evaluate the abnormal noise arising from the rare side, front side and horn which was not working properly. The engine oil of the car was topped off and the complainant was charged amount of Rs.970/-.  Again, in the month of November/December-2011, the car was creating trouble and it was sent to the workshop of the O.P.No.2 for the fourth time.  It was there for 12 to 13 days. The gear box of the car was creating problem.  In the month of March-2012, the complainant was coming from Nashik to Mumbai. In the middle of highway, the car was stalled because of the failure of fuel pump. The car was taken to the workshop by towing.  The fuel pump was replaced.  In this incident, the complainant could have lost his life.  Again, the month of May-2012, the car was sent to the workshop for wheel alignment, wheel balancing and the complainant was required to spent Rs.9,501/-. Again, in the month of July/August-2012, manufacturing defect in the tyre was detected and the complainant was advised to replace it. On 27^th August, 2012, while the complainant was driving car, all of a sudden car was heated and stopped in the middle of the rood. The car was taken to the workshop.  It is lying there till today. As the car was defective, it was required to send to the workshop for several times. Therefore, the opponents were called upon to refund the purchase amount and expenses with interest.  As the opponents failed to refund the amount, the complainant has filed this complaint for refund of the purchase amount of Rs.9,58,559/- with interest Rs.3,02,972/- and compensation Rs.5 Lakhs towards mental agony.  He has also claimed cost Rs.1 Lakh. 

2)                The O.P.No.1 appeared and filed written statement.  It is admitted that the complainant purchased the car from the opponents.  It is submitted that there is no deficiency in service therefore the complaint is not maintainable. There was no manufacturing defect in the car.  The complainant is frequent traveler to and fro Nashik with considerable road speed.  The complainant is not idle driver and has driven the car roughly.  There is no rare driver side light panel in the car. On 14^th July, 2011, the car was reported to workshop for check noise coming from the front wheel, steering wheel and for general check up.  On inspection, the small component of the front suspension was replaced.  On 14^th October, 2011, the car was taken to the workshop for checking abnormal noise coming from the rare side, front side and the horn was not working properly.  It was found that the car was in extensive use.  The maintenance manual was given to the complainant. On 18^th November, 2011, the car was taken to the workshop for checking abnormal noise from the front suspension.  It was observed that due to rough driving there was vibration in the engine.  The engine mounting was replaced together with gear box mounting.  The horn was replaced.  On 19^th March, 2012, the car was taken to the workshop on the complaint that it does not start (breakdown vehicle).  The complainant did not take care of the car properly  therefore the fuel pump was failed.  Fuel pump was replaced.  On 30^th April, 2012, the car was taken to the workshop for wheel alignment and wheel balancing. The problem was due to rough driving, rough roads, pot holes.  On 28^th July, 2012, the car was taken to the workshop for checking tyre worn out and checking skoring wheel wobbling and pulling left hand side.  There was crack in tyre.  There was separate warranty from Apollo Tyres.  On 27^th August, 2012, the car was taken to the workshop for breakdown, smoke from engine, vehicle pulling left, noise from engine and change number plate.  Necessary repairs were carried out. The head of the engine was replaced.  The complainant was informed about the repairs and was called upon to take delivery but he refused. The car was reported to the workshop for routine repairs and maintenance.  The opponent offered to replace engine assembly as a goodwill gesture and it was replaced with the consent of the complainant.  The complainant demanded replacement of the car.  The notice of the complainant was replied.  The complaint is not entitled for the relief as claimed and the complaint is liable to be dismissed with cost.

3)                The O.P.No.2 remained absent though duly served. Hence, the O.P.No.2 was proceeded exparte. 

4)                After hearing the complainant and the O.P.No.1 and after going through the record, following points arise for our consideration

POINTS

REASONS

5) As to Point No. 1 & 2 :- It is not disputed that the complainant purchased the car for on 31^st March, 2011 for Rs.9,48,088/- from the O.P.No.2.  The O.P.No.1 is a Sales Company and provides warranty for certain period on the vehicle sold through the Dealer. There is no dispute that the vehicle was taken to the workshop for several times.  The details are given in the complaint and the O.P.No.1 has admitted it in its written statement.  According to the O.P.No.1, the vehicle was reported to the workshop for routine repairs and maintenance.  In the complaint, the complainant had given the details of defect.  The same can not be termed as a routine check up.  The delivery of the car was given in the month of April-2011. The job card produced by the complainant shows that the car was taken to the workshop in July-2011 for noise coming from front wheel, steering wheel and for general check up. Again, the car was taken to the workshop in October-2011 for abnormal noise coming from rare side, front side and horn was not working. As per job card dated 18^th November, 2011, there was complaint of abnormal noise from front suspension. The job card dated 2^nd December, 2011 shows that there was complaint of abnormal noise from under chasis and rare side.  The job card dated 8^th February, 2012 shows that the car was taken to the workshop with some complaint.  The job card dated 19^th March, 2012 shows the complaint of breakdown vehicle.  The job card dated 30^th April, 2012 shows the complaint of wheel alignment and wheel balancing.  The job card dated 28^th July, 2012 shows the complaint of tyre worn out, vehicle pulling left side.  As per the job card dated 27^th August, 2012, there was break down of vehicle, smoke coming engine, vehicle pulling left, noise from engine.  These job cards were issued by the opponents.  The opponents have not challenged the job cards produced by the complainant. From all these job cards it is clear that there was manufacturing defect and the car was required to be taken to the workshop for several times.  Considering the job cards on record, the defence of the opponent that it was routine check up can not be accepted.  The complainant has purchased the vehicle for business purpose on payment of amount Rs.9,48,088/- but he was required to take the vehicle to the workshop for several times. Considering this aspect, the complaint of the complainant appears to be genuine. 

6)                The learned advocate for the O.P.No.1 has submitted that there is no expert report showing the manufacturing defect in the car therefore the complainant is not entitled for the relief as prayed. For this purpose, he has placed reliance on the judgment of Hon’ble National Commission in Revision Petition Nos.374-375 of 2005 in the case of Classis Automobiles –Versus- Lilanand Mishra and Another decided on 4^th August, 2009 reported in (2010) CJ 491 (N.C.). In that judgment, there was no complaint of manufacturing defect. The complaint was only for glowing of check light.  Therefore, the Hon’ble National Commission did not allow the complaint.  On the other hand, the learned advocate for the complainant has submitted that the complainant has produced sufficient evidence on record showing the manufacturing defect in the car.  For this purpose, he has placed reliance on the judgment of Hon’ble National Commission in First Appeal No.531 of 2008 in the case of Tata Engineering and Locomotive Company Limited & Another –Versus- Subhash Ahuja & Another decided on 29^th April, 2013. In para 11 of the judgment, the Hon’ble National Commission has laid down as under :

11.     So far as the aspect relating to defects in the vehicle, including the manufacturing defects, is concerned, we note that admittedly during the period of warranty the vehicle had to be taken to the workshop on 36 occasions from 27.05.1999 to 26.11.2000 and it remained in the workshop for 69 days till the date of filing of the complaint.  Almost every part of the vehicle had some problem or the other.  The most serious complaint pertained to be engine.  Appellants have stated that even though there was no manufacturing defect in the engine, it was changed as a gesture of goodwill after the warranty period.  We are unable to accept this contention.  No car manufacturer would change an engine if it could be rectified through repairs and the very fact that the Appellants replaced the entire engine indicates that whatever defects it had were inherent in its manufacturing which could not be removed.  This is clearly a case of res ipsa loquitur where evidence in the form of opinion of technical expert is not required to prove the case.  Undoubtedly, inconvenience as also mental agony and harassment was caused to the Respondent/Complainant No.1 on account of the vehicle and keeping in view the above facts, we are of the view that the compensation of Rs.2,50,000/- awarded by the State Commission is reasonable and justified in the present case.

Identical facts are before us.  The complainant has produced several job cards showing that car was taken to the workshop for several problems.  Those job cards are not denied by the opponents.  Therefore, separate technical expert opinion is not required.   It is most important that a customer feels confident, safe and secure while traveling in the vehicle purchased by him after spending huge amount.  The company can not avoid its liability by saying that the complainant is not idle driver and has driven the car roughly and also the problem was due to rough roads, pot holes and also excessive use. One will purchase the car for use and not for keeping it in showcase.  Similar view is taken by the Hon’ble National Commission in another judgment in Revision Petition No.1270 of 2011 in the case of Skoda Auto India Private Limited –Versus- Shri Pawankumar Mahabirprasad Bhageria & Others, decided on 24^th August, 2011 and Revision Petition No.958 of 2007 in the case of M/s. Hyundai Motors India Limited –Versus- M/s. Affiliated East West Press (P) Limited & Another, decided on 29^th November, 2007. 

7)                Considering the above discussion, we came to the conclusion that there was manufacturing defect in the car.  The car is still lying with the opponents therefore the complainant is entitled for refund of the purchase amount with interest.  He has suffered from mental agony as the car was taken to the workshop for several times. The complainant has claimed compensation of Rs.5 Lakhs for mental agony.  It is excessive. We think the complainant is entitled for compensation of Rs.25,000/- for mental agony besides this the complainant is entitled for the cost of proceeding of Rs.10,000/-.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is allowed.

2. The opponents are directed to refund the amount Rs.9,48,088/-(Rs.Nine Lakhs Fourty Eight Thousand and Eighty Eight Only) to the complainant with interest at the rate of 9% per annum from the date of filing of complaint i.e. 11^th October, 2011 till realization.

3. The opponents are also directed to pay Rs.25,000/- (Rs.Twenty Five Thousand Only) to the complainant as compensation towards mental agony and Rs.10,000/- (Rs.Ten Thousand Only) towards cost of this proceeding.

4. The above order shall be complied with within a period one month from today.

5. Copies of this order be sent to the parties free of cost.

   Pronounced

   Dated 27^th May, 2014