IN THE STATE COMMISSION:DELHI

(Constituted under Section 9 of The Consumer Protection Act, 1986)



Date of Decision: 25-03-2009



Complainant No. C-08/188



Giraj Kishore Bansal …Complainant

S/o Sh. Ra, Babu Bansal, Through

R/o 36-A, Old Vijay Nagar, Mr. K.K. Khurana &

Agra-282004. Ms. Darpita,

Advocates





Versus





1. M/s. Nissan Motor India pvt. Ltd. …Opposite Party No.1

36, Maker Chambers III, Through

3rd Floor, Nariman Point, Mr. Dhruv Wahi,

Mumbai-400021. Advocate



2. M/s. Pushpanjali Motors Ltd. … Opposite Party No.2

29, Shivaji Marg, Moti Nagar, Through

Opp. Campa Cola Factory, Mr. Bhashkar Ghosh,

New Delhi-110015. Advocate



Corporate Office at:



International Hotel Complex

Nelson Mandela Marg,

Vasant Kunj,

New Delhi-110070.



CORAM;



Justice J.D. Kapoor … President

Ms. Rumnita Mittal … Member







1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?





JUSTICE J.D. KAPOOR, PRESIDENT (ORAL)



On the allegations of having been sold a vehicle of Nissan X-Trail(SUV)make against the cost of Rs. 21,50,000/- being highly defective and having broken down several times during the period of its purchase, the complainant has sought the following reliefs with the direction to the OPs to :-

a) Immediately replace the inherently defective vehicle with a new vehicle of the same model with all the guarantees and warrantees for a full period and/or in alternative direct the Ops to take back the defective vehicle and refund the full purchase amount jointly and severally to the complainant i.e. Rs. 21,50,000/- alongwith interest @ 24% p.a. from the date of purchase of the defective vehicle till the date of actual refund.



b) Jointly and severally pay to the complainant a sum of Rs. 2 lacs towards mental agony and harassment suffered by it.



c) Discontinue the unfair trade practice adopted by them and discontinue the advertisements of their product and services falsely representing their product and services to be world class, in the manner as this Commission may deem fit and proper in the facts and circumstances of the case.



d) Award the cost of litigation in favour of the complainant.



2. The brief facts, as pleaded by the complainant, are that he purchased a car X-Trail(SUV) from OP-2 for an amount of Rs. 21,50,000/-. First service was done by the OP-2 on 24.08.07. On 20.10.07, the vehicle broke down in the middle of Agra-Delhi highway and started too emit heavy smoke from the engine area and immediately complaint was lodged with OP-2. OP-2 asked the complainant that the engine of the vehicle needs some repairs and that shall be carried out by the OP-1 at its own costs and expenses. After doing the needful, the vehicle was returned to the complainant.

3. That on 13.11.07, second time the said vehicle again broke down and the engine of the vehicle completely failed to respond due to overheating. The complainant called up OP-2 and the same was taken away by it for repairs. On 15.11.07, the vehicle was returned by OP-2 with the assurance that the said vehicle has been thoroughly checked and the same is free from all kinds of defects. On 25.11.07, the vehicle again third time broke down due to engine of the vehicle got engulfed with dense smoke and failed to respond. Therefore again a complaint was lodged by the complainant to OP-2 and same was sent for effecting necessary and major repairs.

4. On 06.12.07, OP-s after retaining the vehicle for around 10 days informed the complainant that the said vehicle needs major repair work for which some parts were to be imported from Japan where manufacturing facilities of the parent company of OP-1 is situated. On 27.12.07, the vehicle broke down fourth time with the same problem of the engine failure and once again it was taken back by OP-2 for necessary repairs.

5. On 15.01.08, the vehicle was returned by OP-2 after almost 3 weeks. On 15.07.08, reminder notice was sent to OPs but having no response.

6. Affidavit by way of evidence on behalf of OP-1 was filed and the following pleas have been raised :-

(i) That the allegations made in the complaint are false and frivolous and the same has been filed with ulterior motive to harass and defame the answering OP. Even otherwise, the complaint is not maintainable as the OP-1 does not reside/carry on business within the jurisdiction of this Commission and the complaint has been filed without obtaining leave of this Commission under Section 17(2)(b) of the Consumer Protection Act, 1986 and, therefore, the complaint deserves to be dismissed on this ground alone.

(ii) That the complainant has failed to disclose any defect or deficiency in service or unfair trade practice u/s 2(1)(f), (g) and ® of the said Act so as to bring the present complaint within the purview of the said Act. It is crystal clear that the alleged manufacturing defect does not exist and that the present complaint is completely based on conjectures and surmises and the is false to the knowledge of the complainant himself.

(iii) That since no cause of action ever accrued to the complainant to prefer the present complaint against OP-1 therefore, on this ground alone the present complaint deserves to be dismissed for misjoinder of parties so far as the same relates to OP-2.

(iv) That it is evident that the complaint involves several disputed questions of fact and law which require both the parties to give detailed oral and documentary evidence, and therefore, the complaint cannot be adjudicated in summary proceedings.

(v) Further that the complainant did snot have any dealings with OP-1 except that the car being imported by OP-1 from Nissan Motor Co, Ltd., Japan and the same was purchased by the complainant through M/s. Pushpanjali Motors Ltd. And the ancillary services such as warranty and servicing of cars is provided by OP-2. It is only in the case of any manufacturing defect that the OP-1 is required to meet its obligations as per the terms of the warranty. Since the present complaint does not pertain to any manufacturing defect, impleading OP-1 in the present complaint is uncalled for and baseless. Furthermore, the OPs cannot be fastened with any liability for the acts of commission or omission of the other OPs.

(vi) That complainant did not have any dealings with OP-1 that car being imported by OP-1 from Nissan Motor Co. Ltd. Japan and the same was purchased by the complainant through M/s Pushpanjali Motors Ltd.

(vii) That the registered office of OP-1 has shifted to No. 1001-A, Godrej Coliseum, 10th Floor, Somaiya Hospital Road, off Eastern Express Highway. Sion(East), Mumbai-400022.

(viii) That Nissan Motor Co. Ltd., Japan is a world renowned manufacturer of cars and that OP-1 imports these cars into India and issues advertisement (both electronic and print media) for the sale of cars manufactured by Nissan Motor Co. Ltd., Japan as part of their business strategy in order to promote sales and distribution. Further that the vehicles imported by the OP-1 meet the world class standard set for luxury sedans and has bagged several awards in the past. The statement of the complainant about the vehicle are of the highest quality and match the highest international standards is absolutely true and well recognized. The vehicle manufactured by Nissan Motor Co. Ltd., Japan enjoys an excellent reputation in the automobile in India and has bagged various awards from critics and experts.

(ix) That the complainant has misconceived the facts of the case and that the vehicle in question broke down due to overheating of the engine.

7. In support of his allegations, the complainant has relied upon a letter dated 16.01.08 sent by the OP referring to his complaint of engine oil leakage and informing that they have rectified the problem of the vehicle and the vehicle is ready to use. The letter reads as under :-



Date : 16 January, 2008



Dear Mr. Bansal,



Refer to your complaint of engine oil leakage of your vehicle we would like to update that we have rectified the problem and the vehicle is ready to use. Keeping in mind our prolonged relationship with you Nissan Motor India Pvt. Ltd. has agreed to replace engine of your vehicle bearing(Pin No. JN1TENT30ZO 102804) with the new engine as a special case under goodwill warranty. The new engine will take 30 working days(approx.) to arrive at our works in New Delhi, upon arrival of the same, we shall inform you and call the vehicle for the replacement. Till such time we request you to restrain the vehicle being taken on long distance travel.



We request for your kind understanding in this regard and thank you for your patience and cooperation in assisting us during this time.



Thanking you,

Warm Regards



For Pushpanjali Motors Limited

Sd/-

Lal Mohan Sharma





8. Pursuant to this letter, the complainant gave the legal notice on 22.03.08 followed by another reminder notice dated 15.07.08. First time the vehicle broke down on 20.10.07 i.e. within two months of its purchase and second the vehicle broke down on 13.11.07 as the engine of the vehicle completely failed due to overheating. After this, the vehicle again third time broke down due to engine of the vehicle got engulfed with dense smoke and failed to respond. Again repairs were made and the vehicle was returned on 06.12.07 with the information that the said vehicle needs major repair work for which some parts were to be imported from Japan where manufacturing facilities of the parent company of OP-1 is situated. Again on 27.12.07 the vehicle broke down with the same problem of the engine failure and once again it was taken back by OP-2 for necessary repairs which was returned on 15.01.08 after almost 3 weeks. It was through a written letter dated 16.01.08 referred above that the OP-2 proposed to replace the engine of the vehicle with a new engine as a special case under goodwill warranty which will take a month or so.

9. As against this, the learned counsel for the OP contended that so far as the letter dated 16.01.08 is concerned, it merely shows that it is a goodwill gesture proposing to replace the engine of the vehicle, which is sent by the dealer and not by the manufacturer. Further, the complainant has not placed any jobcard, document or the invoices or the bills that what kind of repairs were carried out and in this regard the documents filed by the dealer along with the reply are relevant. Vide Service Invoice which is dated 03.09.07 pertains to first three services where the Coolant, Coolar Asy under warranty and Rec. Valve repair description was given. Another Service Invoice is of dated 22.10.07 which pertains to second free service and description of Oil Filter and Air Filter have been given. Another Service Invoice dated 06.12.07 shows the description of service as under :-

Part Details:

S.No.


Description


Category


Qty.

1


Hose Water


Under Warranty


1

2


Hose Water


Under Warranty


1

3


Cooler Assy Oil


Under Warranty


1

4


Radiator


Under Warranty


1

5


Hose Rad Upr


Under Warranty


1

6


Hose Rad Lwr


Under Warranty


1

7


Cap Rad


Under Warranty


1

8


Hose Reserver Tank


Under Warranty


1

9


Core Assy Frt Heater


Under Warranty


1

10


Coolant


Under Warranty


8



No service charges were levied.





10. There is another Service Invoice dated 17.01.08, the descriptions of which are as under :-

S.No.


Description




Category


Qty.

1


Oil Filter





1

2


Air Filter





1

3


Fuel Filter





1

4


Oil Cooler(U/W)





1

5


Coolant





8





11. There are certain documents which show that the complainant was billable on 13.08.07 for Rs. 13,601/- and again on that date Rs. 4,801/- and lastly for Rs. 2,500/- and then Rs. 11,635/-. These are of the same date i.e. 13.08.2007. There is an endorsement that the work has been done to the satisfaction of the complainant. The vehicle has already run for 27,000 kms. On 9th August, 08 it has run 36,377 kms. and on 10th November, 08 it has run 2392 kms.

12. From the aforesaid facts, the learned counsel for the OP wants to refer that there was no complaint of engine having suffered till November, 08 and that the problem occurred in December, 07 it was duly rectified and no engine was sent for service. In March they have not come with similar complaint while the main contention of the OP that the vehicle did not suffer from any manufacturing defect at all and repairs done from time to time were wear and tear of the vehicle. There was no any problem with regard to the engine and the vehicle would not have been running on the roads smoothly. It is further contended that having used the vehicle for almost two years, the same can neither be replaced nor the cost be refunded and lastly that the manufacturing defect if any suffered, were proved by technical expert report.

13. We have accorded our careful consideration to the rival contentions of the parties. The facts of the case show that after two months of its purchase and that too on its first service the vehicle broke down in the middle of Agra Delhi Highway and started to emit heavy smoke from the engine area. After repair of the engine it again broke down within one month. The engine of the vehicle completely failed to respond due to overheating. It was again taken for repairs. After two days it was returned with the assurance that the vehicle has been thoroughly checked and the same is free from all kinds of defects.. After ten days it again broke down due to engine of the vehicle got engulfed with dense smoke and failed to respond. It was again repaired after retaining the vehicle for around 10 days. Again after 20 days it broke down with the same problem. It again was repaired and returned after three weeks.

14. It is misconceived notion that unless and until goods or the vehicle suffer from any manufacturing defect, though the onus is always upon on the manufacturer to prove that it does not suffer from any manufacturing defect, the goods or the vehicle cannot be declared as defective. The quality, standard, purity and potency of every goods has to be tested on the anvil of word ‘defect’ as provide by section 2(1)(g) of the Consumer Protection Act, 1986. According to this provision any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods, amounts to defect.

15. The inference of vehicle being defective can be drawn from various job cards. Whenever a consumer goes for a brand new vehicle instead of purchasing a second and third hand vehicle he does so to avoid any hardship or inconvenience that a second hand or third hand vehicle gives and the minimum expectation of the consumer who goes for the branch new vehicle is that it will not give trouble for two-three years or so and if he is taking the vehicle every two or three days or once or twice a month he does so at the cost of his precious time or business loss or financial loss etc, and at the cost of emotional sufferings also.

16. In the instant case defect of the engine was of such a nature that in spite of repairing it on three-four occasions the defect could not be removed and the complainant was forced to file the instant complaint before this Commission seeking redressal of his grievance. The vehicle was purchased on 16-08-2007 and was taken for repairs for the first time on 20-10-2007 when it started emitting heavy smoke from the engine area and within a short span of four months the vehicle was taken for repairs four times.

17. Engine is heart and soul of the vehicle and if any defect develops so intermittently and so fast after extensive repairs the vehicle has to be declared as suffering from manufacturing defect. The amount of mental agony and harassment, physical discomfort and financial loss a consumer suffers due to such frequent breakdown of engine of the vehicle on the road or on the highway is unimaginable and unfathomable. In spite of having the vehicle retained several days for major repairs of the engine the vehicle remained defective and non-usable.

18. In our view it was not a good gesture in offering the replacement of the engine of the vehicle but it was due to highly defective engine that this offer was made by the opposite party. The engine has to be imported from Japan which was again a lengthy process.

19. There are two options available. First is to direct the opposite party to replace the vehicle with a new vehicle and the second option is to return the complainant the price of the vehicle along with amount of compensation as to the loss and injury suffered by the consumer.

20. In such cases we have taken a view that the endeavour should be to end the dispute of the parties once for all by making the order of refund of the cost of the vehicle which is held to be defective or by awarding reasonable compensation for the mental agony, physical discomfort and other sufferings suffered by the consumer. Therefore the order for repairing some defects or replacing the vehicle or issuing warranty is such an order which is difficult to be executed and monitored as the possibility of the new vehicle being not up to he satisfaction or the removal of defects being not upto the satisfaction of the consumer cannot be ruled out and such orders have given rise to second or third bout of litigation between the parties.

21. Thus in our view the safest and feasible course is to direct the OP to refund the cost of the vehicle. But since the vehicle has already run 27,000 kms and keeping in view the vehicle taken for repairs 3-4 occasions and other financial loss and mental agony and harassment suffered by the complainant, in our view, by directing the OP to refund the entire cost of the vehicle which shall include compensation besides Rs. 20,000/- for cost of litigation would meet the ends of justice.

22. In view of the above discussions the complaint is disposed of in the following terms:-

(i) OP shall refund Rs. 21,50,000/-, the entire cost of the vehicle to the complainant and the complainant shall complete all the requisite formalities for transfer of the vehicle in the name of the OP.

(ii) OP shall pay Rs. 20,000/- to the complainant as cost of litigation.



23. Payment shall be made within one month from the date of receipt of this order.

24. Copy of the order as per statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

25. Announced on 25th March, 2009.