Before the District Consumer Disputes Redressal Forum, Kullu,

H .P.



Complaint Case No.57/2008

Date of Institution 27-6-2008

Date of Decision 26-3-2009



Sh. Sunder Singh Thakur ( MD) M/S Shobla Hydro Power Pvt. Ltd Kullu, Tehsil and District Kullu, H.P.





…Complainant





V/S



1. Excel Motors Mohan Co operative Ind. Estate Mathura

Road New Delhi through its General Manager / Managing

Director .

2 Hindustan Motors Pvt. Ltd Car Plant Chennai Adhigathur

Kadam Baphur Tiruvallur District Tamil Nadu 631203 through its General Manager.



……Opposite parties



For the complainant Sh. H.K.Sharma, Advocate

For the opposite parties Sh.Dharminder Sharma ,Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . The case of the complainant is that in the second week of April 2007 the complainant purchased Pajero GLX ( 5 door SUV) now bearing registration No HP-43-A-5000 from Northern Motors Pvt. Ltd G.T. Road out side Octroi Post ( West ) Ludhiana Punjab who is authorized dealer of the opposite party No.2 . During the warranty period all the tyres of the vehicle worn out due to wheel alignment fault despite periodical services conducted by the authorized service station of the opposite party No.2 . On 21-11-2007 at service station of the opposite party No.1 the vehicle was inspected by the Service Engineer from Bridge stone and submitted the report to the opposite parties No.1 and 2 . It has been alleged that it was not possible for the complainant to ply the vehicle in worn out condition of the tyres and the complainant was asked to purchase new tyres at his own costs and submit the bill to the opposite parties for reimbursement . The complainant had purchased four radial tyres from Universal Tyre House , New Delhi and has spent Rs.32,625/- on the same . In the mean time on 22-12-2007 a bus collided with the vehicle of the complainant and caused damage to right side door, side mirror , fender and entire left portion. The complainant intimated the insurance company about the accident and he was asked to take the vehicle to Delhi to the service station of the opposite party No.2. The opposite party No.2 and the insurance company jointly assessed the damage but the vehicle was not repaired by the opposite party No.2 till February for want of spare parts which were stated to be supplied by the opposite party No.1. The complainant travelled to Delhi personally four times and requested the opposite party No.1 to repair the vehicle but the same delayed considerably resulting into harassment and loss to him. The complainant had alleged that he had suffered a loss of Rs.1,00,000/-.The complainant had lodged the claim of tyres with the opposite parties No.1 and 2 and submitted all the relevant documents and bills but despite that the claim has not been settled on one pretext or the other . It has been alleged that the non settlement and delay in payment of the claim by the opposite parties amount to deficiency in service . The complainant got the said vehicle repaired time and again from the authorized service stations of the opposite party No.2 but the defect in the vehicle could not be removed and the same is still persisting .With these allegations the complainant had sought a direction to the opposite parties to pay Rs.32,625/- with up to date interest at the rate of 18% PA and also to replace the said defective vehicle The complainant has also claimed a sum of Rs. 1,00,000/- as compensation for delay in repair of the vehicle apart from cost of litigation.

2 The opposite party No.1 resisted the complaint by filing reply and raised preliminary objections that the complaint is gross abuse of the process of law , the complainant has not come to this forum with clean hands , that this Forum has no territorial jurisdiction to try and entertain the present complaint , that the complainant has no cause of action to file the complaint against the opposite party No.1, that there is no deficiency in service on its part nor there exists any manufacturing defect in the car in question and that the complaint is bad for non joinder of necessary parties . On merits it has been submitted that the manufacturers limited warranty was made available to complainant alongwith the service booklet at the time of the sale of the car which lays down that the warranty in respect of the tyres and tubes not manufactured by the manufacturer of the vehicle was valid for the first 12 months or 20,000 kilometres which ever occurs first . It is submitted that the tyre in question was manufactured by M/S Bridgestone India Pvt. Ltd and manufacturing defect, if any is subject to verification by the said company only. The tyres in question were duly inspected by M/S Bridgestone India Ltd on 27-11-2007 and the claim as regard defect in the tyres was rejected and the same was duly communicated to the complainant. It has further been averred that since the claim of the complainant with respect to the tyres has already been rejected by the manufacturer of the tyre , the question of reimbursement of any amount spent by the complainant for the purchase of any new tyre by him did not arise. The opposite party No.1 has denied the fact that the damage was jointly assessed by the opposite party No.2 and the insurance company . It has been submitted that this is the work of insurance company and the manufacturer has no role to play in it. It has been denied that the complainant had travelled four times to Delhi for repair of its vehicle . It is submitted that as per the information received, the said car was surveyed by the insurance company on 27-12-2007 and thereafter said car was taken back by the complainant . It has further been averred that it was only on 16-1-2007 that the complainant brought the car and instructed the opposite party No.1 for the accidental repairs and it seems that the delay in issuing the instructions was due to time taken in processing the claim by the insurance company. The repair of the vehicle was completed by the opposite party No.1 by 22-1-2007 i.e. within six days and as such there is no delay in service on the part of the opposite party No.1. It has been denied that it had caused undue harassment and monetary loss to the complainant . The opposite party No.1 has further denied that any claim with regard to tyres was lodged with it .The opposite party No.1 has further pleaded that this Forum has no jurisdiction to entertain the present complaint . The opposite party No.1 has prayed for dismissal of the complaint qua it .

3 The opposite party No.2 has filed reply and resisted the complaint by raising preliminary objections that the complaint is gross abuse of the process of law , the complainant has not come to the forum with clean hands , this Forum has no territorial jurisdiction to try and entertain the present complaint , that the complaint is not maintainable in the present form , that the relationship between the opposite parties No.1 and 2 is of that of the principal to principal basis and the opposite party No.2 cannot be held liable for any independent act and omission , if any committed by the other opposite party, that the complainant had prayed for payment of claim and compensation which is beyond the warranty terms because the opposite party No.2 has extended limited warranty terms to the complainant . On merits the opposite party has taken almost similar stand as taken by the opposite party No.1. In addition the opposite party No.2 had denied that all the tyres had worn out during the warranty period allegedly due to the fault in the wheel alignment . It has further been averred that once the vehicle met with an accident the warranty ceases with immediate effect as per the warranty conditions. It has been denied that the damage was jointly assessed by the opposite party No.2 with the insurance company. It has further been submitted that it is the duty of the insurance company and the manufacture has no role to play in it. It has been denied that the vehicle was not repaired till February for want of spare parts as alleged by the complainant . It has been averred that on 16-1-2008 the vehicle was brought to the service bay of the opposite party No.1 for final repair and necessary repair work was done and necessary spare parts were changed . The repair was completed on 19-1-2008 but the same could not be delivered till 22-1-2008 due to cashless insurance policy claiming process and as such there was no deliberate delay on the part of the opposite party No.2. The opposite party No.2 has denied the contents of para No.3.6 to 3.10 of the complaint being wrong. It had prayed for dismissal of the complaint qua it .

4. The complainant had filed rejoinders reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.

5. We have heard the ld. counsel for the parties and have carefully gone through the entire record. From the perusal of the complaint , reply and accompanying documents , the following points arise for determination by this Forum:-

(i) Whether the complainant has proved that the tyres of the vehicle had worn out during the warranty period and the rejection of the claim by the opposite parties is illegal ?

(ii) Whether there is delay in repairing the vehicle on the part of the opposite parties and if yes whether the complainant is entitled to any compensation on this count.

(iii) Final order



Findings



Point No.1

6 The case of the complainant is that in the month of April 2007 he purchased a vehicle i.e Pajero GLX ( 5 door SUV) from Northern Motors Pvt Ltd G.T. Road Ludhiana Punjab who is authorized dealer of the opposite party No.2 The said vehicle was registered as HP-43A-5000.During the warranty period all the tyres of the vehicle worn out due to wheel alignment fault despite periodical services conducted by authorized service stations of the opposite party No.1 . The further case of the complainant is that on 21-11-2007 at service station of the opposite party No.1 , the vehicle was inspected by Service Engineer from M/S Bridgestone and submitted the report to the opposite parties No.1 and 2 . The complainant was asked to purchase new tyres at his own costs and to submit the bills to the opposite parties for reimbursement and in compliance of this , he had purchased four new tyres from Universal Tyre House ,New Delhi and spent Rs.32,625/- but the opposite parties have not settled the claim of the tyres and due to non settlement of the claim he had suffered mental torture and heavy loss . The opposite parties in their separate replies have stated that the tyres of the vehicle were manufactured by M/S Bridgestone India Pvt. Ltd and the claim lodged by the complainant has been rejected by it as such there is no liability on their part The opposite party No.2 who is manufacturer of the vehicle had denied that the complainant had submitted the claim of tyres before it. . In para No.3.2 of the reply on merits , the opposite party No.2 has submitted that the Manufacturer limited warranty was made available to complainant alongwith the service Booklet given at the time of the sale of the subject car In support of its averment the opposite party No.2 has placed on record photocopy of Booklet of warranty Annexure R-2/A and against column (4) Specific Item ( Battery , tyre and tube) , it has been mentioned therein as under:-

“The original equipment battery, tyre and tube is warranted for the first 12 months or 20,000 kilometres whichever occurs first from the warranty start date.”



The aforesaid condition of the warranty shows that the warranty with respect to the tyres is valid for the first 12 months or 20,000 kilometres which ever occurs first and the aforesaid warranty has been given by the opposite party No.2 who is manufacturer of the vehicle. The complainant has filed a copy of Product Performance report , the perusal of which shows that tyres of the vehicle in question were worn out due to “ wheel alignment fault” . The vehicle was plied for 9358 kilometres on 24-7-2007 and the service was done at Chanakya Motors and thereafter it was reported at Excel Motors at 17949 kilometres on 27-11-2007 on which date the tyres were inspected by the Service Engineer from M/S Bridgestone. Therefore, it has become clear that when the tyres were worn out and the fault in the tyres was reported , the vehicle did not cover 20,000 kilometres . Moreover, admittedly the vehicle was purchased in the second week of April 2007 and fault was reported on 24-7-2007 i.e. within a period of about three months from the date of its purchase . Hence it can safely be said that the tyres were under warranty period when they had worn out. The case of the opposite parties is that since M/S Bridgestone India Pvt. Ltd., the manufacturer of the tyres in question had rejected the

claim of the complainant, therefore , the complainant is

not entitled to replacement of the tyres and in this behalf

they have placed reliance upon the photocopy of

Claim Application From Annexure R2/B dated 27-11-2007. However , no credence can be attached to the aforesaid report of M/S Bridgestone company because the opposite parties have failed to produce any material on record on the basis of which aforesaid report has been prepared. Moreover as per the aforesaid report the Average Projected Life of the tyres is as under :-



Front left tyre 21076 KM

Front rear 18592 KM

Right rear 18592 KM

Right left 18592 KM



As per the product performance report dated 27-11-2007 the tyres of the vehicle of the complainant worn out when the same covered a distance of 9358 kilometres on 24-7-2007 due to wheel alignment fault but no reason has been assigned by the opposite parties as to why the claim of the complainant has been rejected. No opinion of the expert has been placed on record by the opposite parties on the basis of which the claim has been rejected .. Further more no affidavit of the Service Engineer from M/S Bridgestone has been adduced in evidence who is stated to have rejected the claim .The ld. counsel for the opposite party has failed to provide any explanation as to on what basis the claim of the complainant was rejected especially when the average projected life of the tyres was 18952/21076 kilometres and the tyres of the vehicle in question worn out at a distance of 9358 kilometres .Further case of the opposite parties is that since M/S Bridgestone is the manufacturer of the tyres in question , therefore there is no liability on their part either to replace the tyres or to reimburse the complainant. However this contention of the opposite parties cannot be accepted because the warranty condition Annexure RW2/A adduced in evidence by the opposite parties nowhere suggests that in the event of damage to the tyres , the consumer has to approach the manufacturer of the tyres. Moreover, the complainant has purchased the vehicle manufactured by the opposite party No.2 fitted with tyres and he has no concern whether the opposite party No.2 has purchased the tyres from M/S Bridgestone company or from somewhere else . It is the matter inter se between the opposite party No.2 and M/S Bridgestone and complainant has nothing to do with it. The complainant had purchased the vehicle in question from authorized dealer of opposite party No.2 and the opposite party No.2 is the manufacturer of the same. In our opinion , rejecting the claim of the complainant by the opposite party No.2 without any justifiable reason, amounts to deficiency in service for which the complainant is entitled for compensation . The complainant has placed on record photocopy of the retail invoice issued by M/S Universal Tyre House, New Delhi which shows that a sum of Rs.32,625/- had been spent by him for the purchase of four radial tyres on 28-11-2007 which fact has not been denied by the opposite party No.2 in its reply Hence it is held that the opposite party No.2 is liable to reimburse Rs.32,625/- as value of the tyres to the complainant and they are further liable to pay Rs.5000/- for harassment caused to him due to deficiency in service.



Point No.2



7 The case of the complainant is that on 22-12-2007 the vehicle in question met with an accident and thereafter he intimated the insurance company who had asked the complainant to take the vehicle to Delhi at service station of the opposite party No.2. The opposite party No.2 and the insurance company had jointly assessed the damage but the vehicle was not repaired by the opposite party No.1 till February. It is further case of the





complainant that he visited Delhi personally four times and requested the opposite party No.1 to repair the vehicle but its repair was delayed considerably resulting into harassment and he suffered a loss of Rs.1,00,000/-. Conversely the case of the opposite party No.1 is that there was no delay on its part in repairing the vehicle as the car was surveyed by the Insurance company on 27-12-2007 and thereafter it was taken back by the complainant and on 16-1-2008 the complainant again brought the car and instructed the opposite party No.1 for its repair. The said repair work was completed by the opposite party No.1 on 22-1-2008 i.e. within six days . In reply filed on behalf of the opposite party No.2 it has been averred that on 27-11- 2007 when the vehicle was brought to the service bay of opposite party No.1 the necessary repair work was done and whatever spare parts required to be changed and available with the opposite party No.1 were changed . However, certain non consumable items were not available with opposite party No.1 and required to be supplied by Mitsubishi Motors Corporation Japan, the complainant was asked to wait for such time. Ultimately on 16-1-2008 the vehicle was brought to the service bay of opposite party No.1 for final repair and the same was completed on 19-1-2008. However, the vehicle could not be delivered till 22-1-2008 due to cashless insurance policy claiming process and as such there was no deliberate delay on the part of the opposite party No.2. During the period of 27-11-2007 to 16-1-2008, the vehicle had traversed around 2500 kilometres and was running normally In this respect the opposite party No.2 had also placed reliance on job cards dated 26-11-2007 and 16-1-2008 Annexure R2/C and Annexure R2/D, respectively. However in the rejoinder , the complainant has not specifically denied this fact .Therefore , the material placed on record by the opposite parties shows that the vehicle was repaired within reasonable time and it cannot be said that there was any





deliberate delay on the part of opposite party No.1in repairing the vehicle due to which the complainant has suffered undue harassment . Hence, no compensation can be granted to the complainant on this score.



Final Order



8 In view of above discussion, the complaint is partly allowed and the opposite party No.2 is directed to pay the costs of tyres in the sum of Rs.32,625 /- to the complainant with interest at the rate of 9% PA from the date of purchase of the tyres i.e. 28-11-2007till payment and also to pay Rs.5000/- as compensation and Rs.1500/- as costs of litigation



9 Copy of this order be supplied to the parties free of cost as per Rules.



10 File, after due completion be consigned to the Record Room.

Announced (Sushil Kukreja) President

26-3-2009