Delhi

StateCommission

A/183/2015

VIKRANT ROHILLA - Complainant(s)

Versus

CHEVROLET SALES INDIA PVT. LTD. & ANR. - Opp.Party(s)

25 Sep 2017

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

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

                                                                    Date of Arguments:  25.09.2017

          Date of Decision:       12.10.2017

First Appeal No. 183/2015

 

In the matter of:

Vikrant Rohilla

C-225, Madhuban

Vikas Marg,

Delhi-92.                                                                                                                                              ……………Appellant

                                                Versus

     

1. Chevrolet Sales India Pvt. Ltd.

Block B, Chandiapura Industrial Estate

Halol—389351 District Panchmahals

Gujarat, India.                                                                                     …….Respondent No. 1

 

Also at:

 

Ist Floor, Plot Number 15

Sector-32, Gurgaon-122001

Haryana, India.

 

2. TRIUMPH MOTORS

(Khushi Tradex Private Limited

No. E 13/29, Harsha Bhawan

Ground Floor, Connaught Circus

New Delhi.                                                                                          …….Respondent No. 2

                

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

 

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

SHRI O.P. GUPTA(MEMBER JUDICIAL)

 

JUDGMENT

          The present appeal has been filed by complainant for enhancement of compensation awarded by District Forum in CC No. 246/11. The District Forum vide order dated 26/02/15 directed respondent No. 1 to pay Rs. 1,50,000/- as compensation to appellant and Rs. 50,000/- for litigation.   Claim of appellant for replacing car was declined as it was found that car must have travelled more than 40,000 km in 5 years from date of purchase till decision by District Forum.

2.       The appellant has again sought refund of cost of the car i.e. Rs.13,30,000/- alongwith interest  @ 12% per annum from 16.12.10/date of purchase of car till the date of refund. He has also sought refund of Rs. 17,913/- being cost of extended warranty of the car paid by him together with interest @ 12% per annum.  Rs. 11,000/- incurred by him towards replacement of tyres of the car, Rs. 55,000/- towards interest on loan taken for purchase of car.  The appellant has also sought Rs. 1,50,000/- towards increased cost of road tax and registration charges which he would have to pay on purchase of new car. Additional compensation of Rs. 1,50,000/- for mental agony and loss of time and energy in initiating the complaint has also been prayed.

3.       The case of the appellant is that on 17.01.2010 he purchased one Chevrolet car “Cruze” from OP 2 and paid Rs. 13,30,793/- .  Vent of AC was found broken at the time of delivery itself and dealer assured replacement thereof at service centre.  On use of car particular odor was coming from AC.  Within a month on 14.02.10 he had taken the car to Shiva Motors vide Job Card No. 008212 for problem of broken vent, alignment and gear shift problem.  The defects were not rectified, rather mechanic caused some dents and damage to body of car.  He took up the matter with Respondent No. 1.  On 27.02.10 and 27.03.10 he again went to service centre for getting defects rectified but was not successful.  He encountered suspension problem again on 02.04.10.  He went to M/s Regent Automobiles where suspension problem was confirmed by mechanic.  Condition of car deteriorated inspite of changing tyres and floor mat on the advice of service centre on 17.04.10. Old problem continued, rather shock absorbers were found faulty but not replaced due to no spare.  Respondent No. 1 directed him to Shiva Motors on 15.05.10 but no steps were taken for correction of suspension and other faults.  There appears to be inbuent manufacturing defect. On 27.07.10 and 24.08.10 he went to service e centre for repair and rectification for suspension problem but nothing was resolved.

4.       OP filed WS stating that it  sold car on principal basis and it was for OP 2 to repair the defects.

5.        OP 2 filed separate WS stating that it has removed the defects.

6.        After going through the material on record the District Forum found that complainant faced problem of suspension, defective shock absorbers, peeling off  of paint of car, dent and damage, alignment and had to replace tyre within few months of purchase of the car.  He was robbed of total comfort, convenience and satisfaction of a new car purchased after spending huge money. The car could travel only 4000 km. in six months, causing embarrassment and harassment to the complainant repeatedly. New car costing more than  Rs. 13,00,000/- presenting so many problems immediately after purchase was evidence of imperfection in the car at the stage of its  assembly and use of poor quality of parts by OP 1.  It also showed inability of OP 2 to repair such inherent defects which creped in at manufacturing stage. Imperfect car was brought to market without proper quality check.  Hence the impugned order was passed.

7.        We have gone through the material on record and heard the arguments.  The appellant relied upon certain decisions given by National Commission to support his contention that frequent forced visits during short span from purchase of costly car is indication of inherent defect in the car.  It was also held that either the manufacturer should replace the car or pay suitable compensation.  The Judgments are as below:-

            Original Petition No. 9 of 2006 titled as M/s Controls & Switchgear Company Ltd. vs. M/s Daimler Chrysler India Pvt. Ltd. and Anr. decided on 17.09.07. In said case it was held that consequent grievances of the complainant that the central hump was getting heated on long journey cannot be ignored.  These facts are being established by complaints made continuously by the complainant as well as temperature noted by the Court Commissioner.   From the facts stated above, with regard to Car No. DL5CRO333 it is apparent that various defects were noticed by the complainant within a period of three months of its purchase.  After paying a large amount the consumer would not be satisfied with the vehicle, if it gives constant trouble. However we would add that in India we have developed the tendency not to accept the defects and to encourage litigation by one or other defence and take undue advantage of delay in disposal.  In the present case we can say that without hesitation that if the car is defective, may be , on one or other count.  That would not give any satisfaction to the consumer who has spent a large amount for its purchase. Non-replacement of the vehicle in these set of circumstances, would tantamount to unfair trade practice.  OP was directed to replace car or in the alternative refund full purchase price.

            Appellant also relied upon decision dated 25.03.09 passed by this Commission in complaint No. C-08/188 titled as Giraj Kishore Basal vs. M/s Nishan Motor India Pvt. Ltd.  In para 14 it was held that it is misconceived notion that unless and until goods or the vehicle suffer from any manufacturing defect, though the onus is always upon 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 provided by section 2 (1) (g) of Consumer Protection Act.  In para 15 it was held that inference of vehicle having been defective can be drawn from various job cards.  Whenever consumer goes for a brand new vehicle instead of purchase of 2^nd hand and 3^rd hand vehicle, he does so  to avoid any hardship or inconvenience that 2^nd hand and 3^rd hand vehicle gives and minimum expectation of the  consumer who goes for brand new vehicle is that it will not trouble for 2 – 3 years or so and if he is taking the vehicle every two – 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 suffering also. In para 20 it was held that order for repairing some defect or replacing the vehicle is an order which is difficult to be executed and monitored as possibility of new vehicle being not upto satisfaction of the consumer cannot be meted out.  Such orders give rise to second and third bout of litigation between the parties.  Since vehicle had already run 27,000 km. OP was directed to refund entire cost of the vehicle which was to include compensation besides Rs. 20,000/- for litigation .

8.        On the other hand counsel for Respondent No. 1 submitted manufacturing defect must be established by examining of expert. The appellant did not do so.

9.        He relied upon decision of National Commission in Maruti Udyog Ltd. vs.  Hasmukh Lakshmichand 2009 SCC online NCDRC 74.  At page 5 of the report it has been observed that manufacturing defect is much more than an ordinary defect which can be cured by replacing of defective parts.  Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery.

10.      In above case vehicle was sold to complainant in 1998, the same had also run apprxm. 1,20,000 km. while matter was being heard in National  Commission.  Hence directions to replace the car with a new vehicle was declined.

11.      We may mention that District Forum has not directed replacement of car vide impugned order.  Thus decision cited by counsel for respondent No. 1 is not of any help to him.

13.      Counsel for respondent No. 1 relied upon decision of National Commission in Sushila Automobiles Pvt. Ltd. vs. Dr. Birender Narain Prasad 2010 SCC Online NCDRC 144.  Again said judgment lays down that some minor defect which appeared in the vehicle during the warranty period were repaired and necessary parts were replaced,   directions by the State Commission ordering replacement by new car was set aside.  The same does  not help respondent no. 1 much.

14.      Reliance has been placed on decision of NCDRC in Classic Automobiles  vs. Lila Nand Mishra 1(2010) CPJ 235.  In that case revision was filed by dealers and it was held that dealer is not liable unless it is shown that vehicle was sold by manufacturer on principal to principal basis. The same is not applicable.

15.      It is true it was also held that problem of checklight glowing on the  indicator panel even during its normal running cannot be termed as manufacturing  defect .  It was also held that District Forum not even appointed expert for finding out whether there was any manufacturing defect.

16.      We may mention that it is not clear as to why respondent No. 1 wants to put the entire burden on appellant or District Forum or this Commission.  Respondent No. 1 also has not appointed an expert to show that there was no manufacturing defect.  Moreover plea of burden of proof being on complainant is not tenable inview of deisionof this Commission in Giraj Kishore Bansal Supra.

17.      Reliance on decision of National Commission in Hyundai Motor India Ltd. vs. Surbhi Gupta 2014 SCC Online NCDRC 487 where it was observed  that it was not even possible for the truck to run 48,689 kms in over a period of more than three and a half years if there was any inherent manufacturing defect. This is not the case in hand. 

18.      Counsel for Respondent No. 1 cited decision of National Commission in Rakesh Kumar vs. Shimla Automobiles Pvt. Ltd. 2014 SCC Online NCDRC 478 to make out that there was no ground for replacement of vehicle or in refunding the price of the vehicle.  If there was some manufacturing defect, vehicle could not have run 97,488 kms.  We have already mentioned above that we do not propose to direct replacement of the vehicle or refund of the price.

19.      Reliance on Rakesh Gautam vs.M/s Sanghi Brothers Ltd. is an authority for examination of fault evaluation by independent expert.  In that case  vehicle has run 99,420 km. and average came to 174 km per day.

20.      Decision of National Commission in Skoda Auto India P Ltd. vs. Bhawesh Narula 2015 SCC Online NCDRC 3704 has also been cited to show there is no manufacturing defect.  In that case the vehicle has run about 16000 km. in about seven months. 

21.      Counsel for Respondent No. 1 took us through various job cards to point out that defects were minor and not manufacturing defect. We are unable to appreciate the submission.  Reason being that problem of suspension, defective shock absorbers, alignment are such which have relation with manufacturing defect.

22.      Contention of counsel of Respondent No. 1 that complaint is totally false is bereft of any merits.  The reason being that had it been so, respondent no. 1 would have challenged the order of the District Forum awarding compensation but it has chosen not to do so.

23.      In view of the above discussion we find that compensation awarded by the District Forum is not sufficient.  The appeal is accepted in part, order of the District Forum is modified to the effect that Respondent No. 1 would pay compensation of Rs. 3,00,000/- in place of Rs. 1,50,000/- awarded by District Forum.

24.      Respondent No. 1  would comply with the order within 45 days from receipt of copy of order.

            One copy of the order be sent to both parties free of cost.

            File of District Forum be returned with copy of this order.

 

(ANIL SRIVASTAVA)                                                                                                              (O.P.GUPTA)

MEMBER                                                                                                                             MEMBER(JUDICIAL)