BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
FA NO. 118 OF 2016 AGAINST CC NO.21 OF 2012
ON THE FILE OF DISTRICT FORUM-I, HYDERABAD
Between:
M/s Orange Auto Pvt., Ltd.,
Rep. by its Managing Director,
Show-room: Road No.1,
Banjara Hills, Hyderabad – 500 034.
…Appellant/Opposite party No.1
And
1) Mr.H.Suresh Arun S/o Mr.Aramugam,
aged 38 years, Occ: Business,
2) Hannah Suresh W/o Suresh Arun,
aged 36 years, Occ: Business,
Both R/o Plot No.59/A, Behlah Teachers Colony,
Thirumulgherry, Secunderabad.
… Respondents/Complainants
3) M/s General Motors India Pvt., Ltd.,
Chervolet Sales India Private Limited,
President & M.D., rep. by its Karl Slym,
Block-B, Chandrapur Industrial Estate,
Halol – 389 351, District: Panchamahal,
Gujarat, India.
4) M/s General Motors India Pvt., Ltd.,
and Chervolet Marketing & Sales,
Sumit Sawhney, Delhi, 6th Floor,
Global Business Park,
Nehrauti Road, Gurgaon, Delhi – 122 001.
(Respondents 3 and 4 are not necessary parties)
…Respondents/Opposite parties 2 & 3
Counsel for the Appellant : M/s Indus Law Firm
Counsel for the Respondents : Sri A.Alavender Goud-for R1 & R2.
Coram :
Hon’ble Sri Justice B.N.Rao Nalla … President
and
Sri Patil Vithal Rao … Member
Wednesday, the Twenty Fourth day of August
Two thousand Sixteen
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
1) This is an appeal filed by the Opposite party No.1 aggrieved by the orders dated 04.01.2016 of the District Forum-I, Hyderabad made in C.C.No.21 of 2012 directing the Opposite parties 1 to 3 jointly and severally to pay Rs.6,00,861/- along with interest @ 9% p.a. from 19.10.2011 till realization and shall retain the vehicle and to pay costs of Rs.5,000/- to the Complainant.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that Complainants are entrepreneurs, who were in need of utility vehicle for their personal/official/business use. They approached the Opposite party No.1, dealer of Opposite parties 2 and 3 for sale of CHEVROLET cars, in the month of October 2011, for purchase of “CHEVROLET AVEO” brand new vehicle, and accordingly paid Rs.1,00,000/- out of total price of Rs.6,00,000/- on 18.10.2011 and the balance amount was paid by their banker HDFC Bank ltd., which was later assigned with registration mark AP-09/US-2685. Within 24 hours of its purchase, the car developed defects, inter-alia, causing engine block, noise coming out from engine, slow pick-up, low mileage, defects in air conditioner and damage to audio cover panel, etc., and also engine was getting off when it is slow and producing curious ratting sound in the engine.
4) The Complainant No.1 being beneficiary, complained the above problems to the Opposite party No.1 stating that the engine of the vehicle is defective (manufacturing defect) and demanded for replacement of vehicle of the same brand. The vehicle was kept in the custody of Opposite party No.1 on 23.10.2011 and it seems there are major defects in the engine. At the time of taking delivery of car in question, the Complainants noticed rattling noise in the engine and hence refused to take delivery, but, however, the Opposite party No.1 persuaded to take delivery. One of the Engineers of Opposite parties informed that the noise will disappear during the course of running, which could not. On the request for replacement of the vehicle, it was refused. The vehicle was purchased with a sentiment to celebrate Diwali festival to fulfil their dreams which could not become fruitful due to delivery of defective vehicle.
5) As against the demand for replacement of vehicle with new one, the Opposite party No.1 evaded the same but in turn sent e-mail stating that all the defects were rectified and informed to take delivery, to which, complainant sent suitable reply. The engine is most important constituent of the car. The repeated noise from engine is nothing but an inherent manufacturing defect, without which the car cannot be propelled or run. As such, complainants had to purchase two other new brand cars from other manufacturers for their official and personal use. The Opposite parties behaved in most irresponsible and negligent manner. Due to negligent acts of the Opposite parties, complainants could not get the fruitful performance of their daily life. Complainants got issued a notice on 24.11.2011 to the Opposite parties demanding to compensate and replace the car with brand new one, which they received and gave reply on 14.12.2011. The acts and deeds of the Opposite parties amount to deficiency of service as the Complainants are compelled to pay the loan instalments to HDFC bank without making use of the subject car. Hence, prayed to direct the Opposite parties to deliver a new brand “CHEVRELOT AVEO” with correct invoice and sale certificate and other enclosures by replacing the defective one bearing registration No.AP-09-US-TR/2685; to pay interest @ 24% p.a. on Rs.6,00,000/- from 20.11.2011 till realisation and to grant compensation of Rs.6,00,000/- and costs of the complaint.
6) The Opposite party No.1 resisted the claim and filed its written version contending that the Complainant distorted the facts and made allegations contrary to the record, hence liable to be dismissed. As per own averments, the vehicle was purchased for business purpose, hence, the vehicle was intended to be used for commercial purpose and on this ground alone, the complaint is liable to be dismissed. The Complainant approached its showroom and chose Chevrolet Aveo LS MB white colour car 2010 model and the Opposite party No.1 gave huge discount of Rs.1,05,222/- out of total cost of Rs.7,01,410/-. The vehicle was delivered on 19.10.2011 with temporary registration AP-09/US-TR-2685.
7) That, after travelling a distance of 474 kms sent his car through representative on 24.10.2011 to the workshop situated at Sanathnagar with alleged defects viz., engine block and noise, low mileage, defects in a/c, damage to audio cover panel and also that engine was getting off. Its service engineers immediately checked the vehicle and test driven the vehicle along with representative on the same day and he was satisfied with the performance of the vehicle, which was intimated to complainant over phone, SMS and mail dt.01.11.2011. Even the technician sent by Complainant also satisfied with the performance of vehicle and when its technician went to deliver the vehicle, the Complainant started comparing the vehicle with premium segment cars like Mercedez and Porsche and did not took delivery of the car, resulting which, the vehicle was brought back.
8) The Opposite party No.1, on 15.11.2011 informed the Complainant that their ‘after sales Zonal Manager’ will be visiting on 17.11.2011 for inspecting the car, on which day, the vehicle was subjected to road test for 30 kms and certified that the car was in good condition which was informed to Complainant and requested to take delivery. On 23.11.2011, the Opposite party No.1 sent mail seeking complainant to collect the vehicle, to which a reply mail dt.24.11.2011 is sent stating that notice has been dispatched on 21.11.2011. It denied to have delivered the vehicle on 18.08.2011 but instead on 19.10.2011.
9) It is contended further that the plying of vehicle for 474 kms itself shows that the car was running smoothly. Had the engine blocked, the car would have never started and it should have been towed down to the workshop. The vehicle delivered to the Complainant is a brand new, hence rattling sound coming from the engine is impossible and question of repairing the same by its personnel would not arise. On 25.10.2011 its manager conducted mileage test with speed between 60 kmph to 80 kmph driven for 51 kilometers with a/c on condition on Medchal highway and found they got 16 kilometers per liter tank full to tank full method. Complainant refused to take test drive of another similar vehicle. At the time of test drive, Complainant stopped the vehicle in a steep up direction and wanted to move the vehicle in second gear. Generally, in this condition, the vehicle has to be moved in first gear and come to second which results in low pick-up and low mileage. The air-conditioner found to be in good condition. Though the audio cover was in good condition, to maintain relationship, it had replaced the panel of the audio cover free of cost. This shows the concocted mind set of the Complainant.
10) It contended further that a new engine without defect shall never stop unless the same is put off or due to mishandling of the driver. When the brand new vehicle has been delivered, the Complainant is making vague and baseless allegation that the engine is getting off when car is running slowly. The car with manufacturing defect will never be given to the Opposite party No.1 by the Opposite party No.2, instead, the cars manufactured by Opposite party No.2 have a good reputation in the worldwide market, hence, question of delivering any defective vehicle does not arise as the company takes all precautions before handing it over to the seller. The Opposite party No.1 kept ready the vehicle by 02.11.2011, but Complainant refused to take delivery of the same. The telephone calls made by its service manager and SMS on 24.10.2011, 25.10.2011, 27.10.2011, 28.10.2011, 29.10.2011 and 31.10.2011 bringing to the notice of Complainant about certification of the car by the Ops 2 and 3 but the Complainant never turned-up.
11) The own technician of Complainant satisfied with the vehicle and Complainant created concocted stories and not taking delivery of the vehicle. The car in question is free from any defect. Even though it is a dealer, to give value to the esteemed customer, it had sent its engineers and technicians. When tried to handover the car documents, the Complainant did not receive and on sending through executive, refused to receive. However, the documents were sent through speed post on 03.12.2011. It denied sustenance of stained reputation and facing severe humiliation in the relative’s community, society and mental agony due to non-replacing the car. There is no deficiency of service on its part, hence, prayed to dismiss the complaint.
12) The Opposite parties 2 and 3 filed their written version reiterating the contentions raised by the Opposite party No.1 and further contended that the Forum has been principally created to dispose cases being straight jacket in nature. Prima-facie, no case is made out as set out U/s 2(1)(f) and 2(1)(g) of the Act. Before sale, the vehicles undergo rigorous testing on all material counts of performance by statutorily nominated agencies under Rule-126 of the Central Motor Vehicles Rules, 1989. If running engine of the present vehicle model had given excessive or improper sound generation, the same would have been impossible to have escaped notice in the process of statutory testing under Rule-126 of the CMVR. The present vehicle has been broadly tested both by the workshop of the dealer as also by their duly notified and competent automobile engineer, hence denied any engine blockage. It is impossible for any brand new vehicle of any reputed make to produce “any rattling noise in the engine”.
13) They denied slow pick-up, giving low mileage, defects in air-conditioner and damage to the audio cover panel. The defect or deficiency stands defined by the Consumer Protection Act as non-conformity with the statutory parameters of performance or non-conformity with mutually agreed parameters of performance or non-conformity with manufacturer’s representations of performance. No statutory parameters with respect to fuel performance or pickup of different automobile vehicle models are applicable and they have not represented any specific parameters of pickup or mileage. The complainant’s demand seeking replacement of the vehicle exposes his covetousness. The complainant cannot assume the role of an expert and rashly conclude that the impugned vehicle suffers from inherent defects. The request to the complainant to participate in a joint trial so as to satisfy himself on the performance of the vehicle was turned-down. After getting convinced about the over-all performance of the vehicle, complainant had taken delivery of the same. The vehicle is roadworthy in all aspects and it is the Complainant who is shying away from taking delivery of the vehicle with a predestined mind.
14) The Opposite parties have been identified in the automobile industry for a century and retained the top slot amidst tough competition not only for delivering qualitative products from their stable but also for following strict business moral code. The allegations of unfair trade practice are purely imported for the purpose of setting the law in motion which otherwise has no flesh and blood to survive. The complainant seems to be under a mistaken impression that repeated assertions of defect is suffice to obtain an award without bothering to prove the same in a manner known to law. The complainant as though replacement of the vehicle is his birth right has been insisting on the same. There is no cause of action for the above complaint and the same has been weaved for the purpose of instituting the above complaint. Hence, prayed to dismiss the complaint with exemplary costs.
15) During the course of enquiry before the District Forum, in order to prove their case, the Complainants got filed evidence affidavit of H.Suresh Arun as PW1 and Hannah Suresh as PW2 and Exs.A1 to A17 while the Opposite parties got filed the evidence affidavit of one Y.Ramakoteswara Rao, Managing Director of Opposite party No.1; evidence affidavit of one G.Padmanabhan, Zonal Manager (after sales); evidence affidavit of one R.Sashidhara, Divisional Manager (after sales) of Opposite parties 2 and 3 and marked Ex.B1 to B8.
16) The District Forum after considering the material available on record, allowed the complaint bearing C.C.No.21/2012 by orders dated 04.01.2016, as stated in paragraph No.1, supra.
17) Aggrieved by the said orders, the Appellant/Opposite party No.1 preferred this appeal contending that the forum below (a) committed a patent error in holding that the subject vehicle was purchased for the personal use of the 2nd respondent and that the said vehicle was used by her husband i.e., the 1st respondent for attending his business which is not reflected in the pleadings; (b) did not advert to the facts mentioned in the complaint and instead referred to non-existent pleadings of the 2nd Respondent; (c) ought to have seen that in the background of admitted fact of using the subject vehicle for commercial purposes, the complaint is not maintainable as it lacks jurisdiction; (d) failed to see that the vehicle delivered to the Respondents 1 and 2 is free from defects; (e) committed manifest error in placing reliance on Ex.B6; (f) ought to have seen that the respondents 1 and 2 did not place any material worth its credence to establish that the subject vehicle is defective; (g) committed a grievous error in holding that there was mechanical defect of the vehicle engine etc., and other parts and further holding that the appellant “might” have delivered defective vehicle; (h) ought to have seen that the respondents 1 and 2 on their own volition did not take delivery of the vehicle and for their lapses, the appellant cannot be penalized. Hence, prayed to allow the appeal by setting aside the impugned order.
18) The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
19) It is pertinent to mention here that appeal arising out of the same consumer complaint No.21/2012 is decided by this Commission on 19.04.2016 vide FA No.31/2016. In the said appeal, the appellant is Respondent No.3 and 4 herein (i.e., Opposite parties 2 and 3) while the appellant in this appeal is Opposite party No.1 in the main complaint.
20) It is not in dispute that the 2nd Respondent purchased the impugned vehicle from the Appellant herein manufactured by the Respondents 3 and 4 for a consideration of Rs.6,00,861/-. It is also not in dispute that the Respondents 1 and 2 complained the Appellant as to the problem of engine noise, air-condition system, low mileage, audio cover problem, etc., as is evident from Ex.B6. Admittedly, the impugned vehicle was handed over at the workshop of the Appellant on 23.10.2011 itself i.e., 4 days after purchase of the vehicle complaining the problems stated, supra.
21) From the perusal of Ex.B5, it is clear that the brother of Respondents 1 and 2 who accompanied the technical personnel of Opposite parties at the time of test drive, dissatisfied with the statement made by the personnel of the Appellant, asked for another car to drive so that the noise can be justified, but the same was not conceded. It is also evident from this document that as the mechanic from General Motors would be visiting in the 3rd week of November 2011, Complainant informed that he would get his mechanic with him and when they visited the showroom, it was informed that the impugned car was sent to Sanathnagar workshop as there is no sufficient parking space at Jubilee Hills showroom. Even at Sanathnagar, complainant was made to wait for four hours that too without petrol in the vehicle and the tyres were almost flat. This occasioned subsequent to receipt of Ex.B6 mail from the personnel of Appellant. Ex.B6 says that the car was made ready and phone calls were made to the Respondents 1 and 2 on 27th, 28th, 29th and 31st of October and also SMS were sent. If really the impugned car was made ready, there was no occasion for the Respondents 1 and 2 to reply in the manner stated in Ex.B5.
22) From the perusal of Ex.B3, it is clear that it was communicated to the Respondents 1 and 2 through mail that their ‘After Sales Zonal Manager’ Mr.Ashok Kumar of the Opposite parties visited on 17.11.2011 and checked the vehicle thoroughly and had test driven the car for 30 km and certified that the car is in good condition. As against the same, the Respondents 1 and 2 responded that this communication is sent to him 7 days after the inspection and during conversation with Mr.Kumar, Respondents 1 and 2 had clearly stated that he is not satisfied with the explanation as well as performance of the car. Nothing is brought on record to state that said Ashok Kumar holds any certificate to test ride the impugned vehicle and competent to certify that the car is in good condition. No document is brought on record by the Appellant/Opposite party No.1 to prove that the impugned car is found in good condition after test ride.
23) It was repeatedly complained by the Respondents 1 and 2 that there is problem of engine noise as it was emanating rattling noise, which they dissatisfied, which is also not disputed by the Appellant. It is stated by the Appellant that the defect is rectified, which mean to say that there was a problem which is stated to have been rectified, which is disputed by the Respondents 1 and 2. Basing on the material placed on record, the Forum below directed for refund of the cost of vehicle with interest @ 9% p.a., which in any way, is not to be interfered with.
24) It is contended by the counsel for the Appellant that the impugned vehicle is used for commercial purpose, which this Commission is not inclined to accept. Using of the vehicle to attend the office or domestic needs does not amount to commercial purpose. As a matter of fact, vehicles would be used for convenience/ conveyance of a person and better transport, which would not amount to commercial purpose, viewed from any angle.
25) The learned counsel relied on the following citations.
a) (2006) 4 Supreme Court Cases 644, in the case of Maruti Udyog Ltd., Vs. Susheel Kumar Gabgotra and another in Civil Appeal No.3734 of 2000, decided on March 29, 2006.
b) Civil Appeal No.7159 of 2003 in the case of General Motors India Pvt., Ltd., Vs. Vinoo Bhagat & another decided by Hon’ble Supreme Court of India on May 06, 2009.
c) II (2010) CPJ 130 (NC), in the case of Sushila Automobiles Pvt., Ltd., Vs. Dr.Birendra Narain Prasad & Ors., in R.P.No.1652 of 2006 decided 07.05.2010.
d) III (2015) CPJ 134 (Chha) in the case of Jai Prakash Sahu Vs. Tata Motors Ltd., & anr., decided on 25.02.2015.
e) IV (2015) CPJ 45 (NC) in the case of Hyundai Motors India Ltd., Vs. Neelam Trading Co., & Ors., in R.P.No.843 of 2009, decided on 10.04.2015.
This Commission perused the above citations. The facts in the cases referred, supra, and the facts in the case on hand are different and distinct. Hence, the same cannot be made applicable to the facts in the case on hand.
26) It has been persistently informed by the Respondents/Complainants that there is inherent engine problem, in which circumstance, the Appellant ought to have replaced the engine with a new one in order to maintain good and congenial atmosphere with the customer, which it failed to and kept the vehicle at its workshop for years together. Even the Appellant also did not choose to take any alternate steps at the first instance to satisfy its customer. And at this juncture, it is too late even for this Commission to order for replacement of the engine or to rectify the defects and to attend the same. The refund ordered by the forum below is justified, which would meet the ends of justice.
27) In the above facts and circumstances, this Commission is not inclined to interfere with the well reasoned orders passed by the Forum below dated 04.01.2016 in CC No.21/2012. The point framed for consideration in paragraph No.18, supra, is answered accordingly.
28) In the result, the appeal fails and is accordingly dismissed. In the circumstances, the parties to bear their own costs.
PRESIDENT MEMBER
Dt. 24.08.2016
JBNRN (P) & PVR (M)
