Haryana

StateCommission

A/469/2018

GOPAL DASS - Complainant(s)

Versus

G.S.P.MOTORS AND OTHERS - Opp.Party(s)

ANIRUDH KUSH

17 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:17.04.2018

                Date of final hearing:17.04.2023

                                                Date of pronouncement: 25.04.2023

 

First Appeal No.469 of 2018

 

IN THE MATTER OF

 

Gopal Dass Panchal, aged 58 years son of Shri Laxmi Chand Panchal, R/o Badshahpur, Tikli Road, Near Police Station, Jimwali Gali, Badshahpur, District Gurgaon, Haryana.

.….Appellant.

 

Through Counsel Shri Anirudh Kush, Advocate

 

Versus

 

1.    G.S.P Motors, Unit No.16-16A, Ground Floor, Park View Business Tower, Sector-45, Gurgaon -Sohna Road, Gurgaon-120019, through authorized person.

2.    Sterling Motors Co., Near Atul Kataria Chownk, Airforce Station, Old Delhi Road, Gurgaon through authorized person.

….Respondents No.1 & 2

 

Through counsel Shri Ajay Chhikara, Advocate

 

3.    Mahindera & Mahindra, Mahindra Towers, G.M. Bhosale Marg Worli, Mumbai-400018 through its authorized person.

….Respondent No.3.

Through counsel Mr. Vaibhav Narang, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Shri Anirudh Kush, counsel for the appellant.

                   Shri Ajay Chhikara, counsel for respondents No.1 & 2.

                   Ms. Sapna Khurana, proxy counsel for Mr. Vaibhav Narang, counsel for respondent No.3.

 

O R D E R

S. C. KAUSHIK, MEMBER:

 

                    Delay of 54 days in filing of the present appeal is hereby condoned for the reasons stated in the application for condonation of delay.

2.                Present appeal is preferred against the order dated 03.01.2018 in Consumer Complaint No.517 of 2015, passed by learned District Consumer Disputes Redressal Forum, Gurgaon (now ‘learned District Commission’), vide which complaint filed by the complainant-present appellants was allowed and only opposite party No.2 (‘OP No.2’) was directed as under:-

“The OP No.2 ought to have repaired the vehicle free of costs as the same was within warranty and thus we direct OP No.2 to refund a sum of Rs.25,000/- excluding the cost of consumable items alongwith interest at the rate of 9% p.a. from the date of filing of complaint till its realization and further to pay a sum of Rs.5000/- as compensation for mental agony, harassment as well as litigation expenses. However, no deficiency in service on the part of OP No.1 & 3 proved and the complaint is hereby dismissed against OP No.1 & 3.”

3.                Brief facts of the complaint filed before learned District Commission are that on 06.02.2014, complainant purchased a Qwanto Car, bearing chassis No.MA1YG2HUXE2A20374 and the same was under warranty for two years or upto 50000 Kms. It was alleged that the said vehicle was defective from the date of purchase and he took the vehicle for service to OP No.2 several times, but the problem could not be rectified. It was further alleged that in the month of July, 2015 complainant took the vehicle to OP No.2 for repairs and executive of Op No.2 asked the complainant to leave the vehicle for one week and in the meantime, they would make the payment of Rs.2,000/- per day as conveyance allowance and the complainant left the vehicle with OP No.2. Thereafter, the complainant contacted OP No.2 several times with the request to change the engine of vehicle as the same was within warranty, but all in vain and on 24.08.2015, complainant received a message from OP No.2 that the vehicle has been repaired and demanded a sum of Rs.27,000/- despite the fact that the vehicle was within the warranty period and complainant paid an amount of Rs.70,000/- as conveyance charges and loan installments of Rs.9086/- per month. However, complainant paid the said amount, but the vehicle was not repaired completely. Thus, it was alleged that there was deficiency in on the part of Ops.

4.                Upon notice, Ops appeared before learned District Commission and filed their separate written versions. OP No.1 in its written statement submitted that however, the complainant purchased the vehicle in question, but it was denied that the same was defective from the date of purchase. It was further submitted that complainant obtained the services of OP No.2 and prayed for dismissal of complaint against OP No.1.

5.                OP No.2 submitted in its written statement that complainant approached OP No.2 for second service at 12835 Kms. as against 10000 Kms., but even then the vehicle was attended as per the service book if the complainant did not adhere to the service period, then there was no warranty but even then the complainant was attended for third service at 25212 Kms. which was due at 20000 Kms. It was further submitted that the vehicle was brought to OP No.2 on 15.07.2015 with a reading of 32129 Kms with a problem of self starting, coolant leakage, high white smoke and engine side noise and the said problem had occurred as the complainant was not getting the services of the vehicle as per the schedule and he was made aware of the said fact. It was further submitted that complainant left the vehicle with OP No.2 and did not respond to the calls of OP No.2 for further discussion. Said vehicle was ready within 10-15 days but the complainant was not willing to take delivery of his vehicle and was not even ready to visit the office of OP No.2 and when he was intimated that he has to bear the parking charges then he came to collect the said vehicle on 02.09.2015. It was further alleged that the cost of repairs was above Rs.1,00,000/-, but on request of complainant, it was agreed to take 25% of the total cost. Thus, there was no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint.

6.                OP No.3 in its written statement submitted that OP No.3 is a manufacturer of said vehicle and the same was sold through authorized dealer i.e. OP No.1 and OP No.3 sells the vehicle on principal to principal basis and as such in terms of clause 27 there was no responsibility of OP No.3. It was further submitted that whatever defect was found, same was removed free of cost as per the warranty manual and the complainant himself violated the warranty norms for which OP No.3 cannot be liable. It was further submitted that there was no manufacturing defect in the vehicle in question and thus the vehicle was not liable to be replaced. Thus, there was no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint.

7.                After hearing the parties, learned District Commission accepted the complaint against OP No.2 and directions were issued as mentioned above in para 2^nd supra.

8.                Aggrieved from the impugned order passed by learned District Commission, complainant-appellant has preferred present appeal for enhancement of the relief awarded in the complaint.

9.                The arguments have been advanced by Mr. Anirudh Kush, learned counsel for the appellant, Mr. Ajay Chhikara, counsel for respondents No.1 & 2 and Ms. Sapna Khurana, learned proxy counsel for Mr. Vaibhav Narang, counsel for respondent No.3. With their kind assistance, contents of the appeal have also been properly perused and examined.

10.              While unfolding the arguments it has been argued by Mr. Anirudh Kush, learned counsel for the appellant that on 06.02.2014, appellant purchased a Qwanto Car, bearing chassis No.MA1YG2HUXE2A20374 and the same was under warranty for two years or upto 50000 Kms. The said vehicle was defective from the date of purchase and he took the vehicle for service to OP No.2 several times, but the problem could not be rectified. On 10.03.2015 the vehicle was taken for service and the appellant pointed out dickey noise, hardness in clutch, break noise etc., however the problems were rectified by the respondents, but such problems do not occur in a new vehicle. He further argued that on 11.07.2015, the appellant visited the respondents as the vehicle was having unusual noise and overheating. The vehicle in question was having manufacturing defects and that is the reason the vehicle was brought before respondent’s agency, who repaired the same despite the fact that there should have been no question to carry out huge repair of a new vehicle in just a short period. In fact, the engine of vehicle in question was required to be replaced. He further argued that there is deficiency in service on the part of respondents and prayed for acceptance of present appeal by setting aside the impugned order.

11.              Mr. Ajay Chhikara, learned counsel for respondents No.1 & 2 has argued that the appellant purchased the vehicle in question, but it was not defective from the date of purchase. He further argued that second service of vehicle was due at 10000 Kms., but appellant approached respondent No.2 for service at 12835 Kms., but even then the vehicle was attended to as per the service book. If the complainant had not adhered to the stipulated service period, then there was no warranty but even then the complainant was attended for third service at 25212 Kms. which was otherwise due at 20000 Kms. He further argued that the vehicle was brought to respondent No.2 on 15.07.2015 with a reading of 32129 Kms. and also with a problem of self-starting, coolant leakage, high white smoke and engine side noise and the said problems had occurred as the appellant was not getting the services of the vehicle as per the schedule and he was made aware of the said fact. Appellant left the vehicle with respondent No.2 and did not respond to the calls of respondent No.2 for further discussion. The said vehicle was ready within a period of 10-15 days but the appellant was not willing to take delivery of his vehicle and was not even ready to visit the office of the respondent No.2 and when he was intimated that he has to bear the parking charges only then he came to collect the said vehicle on 02.09.2015. He further argued that the cost of repairs was above Rs.1,00,000/-, but on request of the appellant, it was agreed to take 25% of the total cost of repairs. He further argued that there was no deficiency in service on the part of Ops No.1 & 2 and prayed for dismissal of the complaint as well as present appeal.

12.              On the other hand, Ms. Sapna Khurana, proxy counsel for Mr. Vaibhav Narang, learned counsel for respondent No.3 has argued that respondent No.3 is the manufacturer of said vehicle and the same was sold through authorized dealer i.e. respondent No.1 and respondent No.3 sells the vehicle on principal to principal basis and there was no responsibility of respondent No.3. She further argued that whatever the defect was found, the same was removed free of cost as per the warranty manual and the appellant himself violated the warranty norms for which respondent No.3 cannot be liable. She further argued that there was no manufacturing defect in the vehicle in question and thus the vehicle was not liable to be replaced.

13.              In view of the above submissions and on a careful perusal of the entire record, it is true that the complaint-appellant purchased a vehicle i.e. Qwanto Car, bearing chassis No.MA1YG2HUXE2A20374 on 06.02.2014. He took the vehicle on 13.05.2014, when it had covered 6609 Kms. for first free service, which was done free of cost and consumable items were charged to the tune of Rs.1817/-. He took the vehicle on 10.06.2014, when it had covered 8137 Kms. for want of cleaning and jack band but there was no defect in the engine. Similarly, on 16.06.2014, 16.09.2014 and 06.01.2015 the vehicle was taken to respondent No.2 for servicing, which was done free of cost except for consumable items and every such time, no defect was pointed out with regard to engine of vehicle. Thereafter, on 10.03.2015, the vehicle again taken to respondent No.2 for third service and vehicle covered distance of 25212 Kms. whereas, specified limit was 20000 Kms. and on that date also no defect regarding engine was pointed out. It is pertinent to mention here that on 11.07.2015, the appellant again took the vehicle to respondent No.2 at 32072 Kms. and necessary job was done and he paid for the service which were not covered under the warranty. Moreover, the appellant has not produced any report or an expert opinion regarding the manufacturing defect in the engine of vehicle in question. It has been held by Hon’ble National Consumer Disputes Redressal Commission in R.P. No.3362 of 2010 decided on 27.05.2015 in case titled as “R.C. Grover Vs. Tata Motors Ltd. & Anr.”that he complainant has not placed any expert opinion to prove that purchased vehicle was suffering from manufacturing defects. The complainant was not entitled to replacement of the vehicle by now vehicle without proof of manufacturing defect. In the present appeal, on 15.07.2015, vehicle was again taken by the appellant to respondent No.2 after covering the distance of 32129 Kms. with the problem of self-starting, high white smoke, coolant leakage engine side noise etc. for which respondent No.2 raised bill of Rs.1,08,000/-, as the engine overhauling was done and several parts were changed, out of which 25% of the cost of the repairs was paid by the appellant.

14.              It is pertinent to mention here that respondent No.2 raised a bill of Rs.1,08,000/- from appellant and appellant paid an amount of Rs.27,000/- after getting discount of 75%. Learned District Commission after observing that respondent No.2 ought to have repaired the vehicle in question free of costs as the same was within warranty period, directed the respondent No.2 to refund a sum of Rs.25,000/- excluding the cost of consumable items alongwith interest @ 9% p.a. from the date of filing of complaint till its realization. Learned District Commission failed to consider this fact that appellant had paid Rs.27,000/- instead of Rs.25,000/-. Thus, the impugned order modified to the extent that appellant-complainant is entitled to get the refund of Rs.27,000/- instead of Rs.25,000/- from respondent No.2 excluding the cost of consumable items alongwith interest @ 9% p.a. from the date of its deposit till its realization. Remaining part of the impugned order remains as it is. With this modification, present appeal stands partly allowed.

15.              A copy of this order be sent to the learned District Commission, Gurugram.

16.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

 17.               Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

 18.               File be consigned to record room alongwith a copy of this order.

 

Pronounced on 25^th April, 2023                                                                                                                                                                                              

                                                                                                            S.C. Kaushik                                                                                                                        Member                                                                                                                                 Addl. Bench

 R.K