Chandigarh

StateCommission

CC/40/2022

M/s Offroad Vacations Pvt. Ltd. - Complainant(s)

Versus

M/s Krishna Auto Sales - Opp.Party(s)

Sunil K. Dixit Adv.

22 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

[ADDITIONAL BENCH]

 

 

Complaint case No.	:	40 of 2022
Date of Institution	:	28.4.2022
Date of Decision	:	22.7.2023

 

 

M/s Offroad Vacations Pvt. Ltd., Krishna Bhawan, Mall Road Solan (H.P), through its Director Mr. Animesh Gupta.

 

……Complainant

V e r s u s

 

1.     M/s Krishna Auto Sales, Elante Mall, Business Block-5, Industrial Area, Phase-I, Chandigarh (Dealer/Seller of Volvo XC-90 car).

 

2.     M/s Volvo Auto Indi Pvt. Ltd., Corporate Office: BPTP Park Centra, Sector 30, NH-8, Gurgaon – 122001, Haryana (India).

                                                             .... Opposite Parties

 

BEFORE:    MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH     MEMBER

                       

Argued by:  Sh. Manish Garg, Advocate for the Complainant.

                Sh. Jagvir Sharma, Advocate for the Opposite Party No.1.

                Sh. Sushane Puri, Advocate Proxy for

                Sh. Ankush Chowdhary, Advocate for the Opposite Party No.2.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

1.             The facts in brief are that the Complainant company purchased the Volvo XC-90 BS-6 car from Opposite Party No.1 on 21.10.2020 after making payment of ₹71,84,482/-. At the time of sale, Opposite Party No.1 gave a discount of ₹11,06,001/- to the Complainant. It has been alleged that in the first month of its purchase, the brake pads of the car started making screeching noise and were replaced by the Opposite Parties. Soon thereafter, the steering of the car on turns started making noise, upon which Opposite Parties replaced starter motor and column lock. During August 2021, while the Director of the Complainant was on his way from Gurgaon to Noida, the ignition system stopped due to failure of computer/electronics systems of the car. There was problem in the alignment system of the car, as despite repeated settings, it swung to left side. It has been averred that the car gave fuel mileage average of 9.5 per ltr. against 10.5 per ltr. as claimed by the Opposite Parties. On 15.01.2022 the drive mode of off roading failed and on 17.01.2022, the ignition problem again developed and the auto stopped/start function of car did not work. Highly dissatisifed with the performance of the car, the Complainant wrote e-mail dated 18.01.2022 to the Opposite Parties, but when nothing positive could come out, the Complainant got served a legal notice dated 28.01.2022 upon the Opposite Parties, inter alia demanded to replace the car or to refund the money. However, the Opposite Parties chose not to reply the said legal notice. The Complainant claimed that under the garb of heavy discount, a defective vehicle was sold to him. By stating that the aforesaid act and conduct of the Opposite Parties amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the Complainant seeking directions to the Opposite Parties to replace the car with the new one of the same model or to refund the value of the car alongwith interest, compensation; litigation expenses etc.

 

2.             Notice of the complaint was sent to Opposite Parties seeking their version of the case. 

 

3.             The Opposite Party No.1 contested the Complaint on the ground that the life span of the break pad depends on the driving habits & conditions of the roads on which the vehicle was being driven. The car met with an accident at the Odometer reading of 17927 kms and during repairs it was found necessary to replace ‘starter motor exc’ and ‘column lock’ which was not to be cleared by the Insurance Company and for that reason it was replaced under warranty by raising invoice in favour of Opposite Party No.2. It has been asserted that the discount given to the Complainant was as per the prevalent practice in the automobile industry. The swing problem was the result of mal-functioning of alignment system and a periodical alignment & wheel balancing was required to be undertaken by the owner of the vehicle. It varied as per the usage of the vehicle and conditions of the road where the vehicle was being plied. Fuel mileage average depends on the driving habits of the driver of the vehicle. The alleged problem occurred in the electronic components was based on computer applications and the same was corrected with the centralized system provided by the Manufacturer (Opposite Party No.2). The said incidents happened from 15.01.2022 to 18.01.2022 after the accident dated 11.01.2022, the repairs were undertaken in the Dealership from 11.01.2022 to 14.01.2022. After receiving the car on 24.01.2022, the same was running perfectly as nothing was reported by the Complainant since then.  The reason of discount was the manufacturing year of the vehicle as it was a 2019 Model and was sold on 21.10.2020. There was no manufacturing defect in the vehicle and the same had covered more than 34000 kms upto June 2022, therefore, the question of its replacement does not arise. On these lines, the consumer complaint was sought to be contested.

 

4.             Opposite Party No.2 filed its separate reply, inter alia, admitting the basic facts of the case. It has been pleaded that the Complainant deliberately suppressed the fact that the vehicle had undergone an accident with an oblique motive to seek a replacement or refund of the amount paid towards the vehicle.  There have been conjectures about negligence on the part of the Opposite Parties solely because the car was being sent to the Workshop and therefore, it suffers from manufacturing defects. A distinction has to be made between defects that creep up from wear & tear of everyday usage and an inherent manufacturing defect. The Manufacturer cannot be held liable when Opposite Party No.1fully discharged their obligations by removing the defects whenever required and also replacing the defective parts. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer has been made for dismissal of the complaint.

 

5.             Controverting the allegations contained in the written statements filed by Opposite Parties No.1 & 2 and reiterating the pleadings in the Complaint, the Complainant filed the separate rejoinders.

 

6.             Parties led evidence by way of affidavits and documents.

 

7.             We have heard the learned counsel for the contesting parties and gone through the record of the case, including the written arguments advanced.

 

8.             After scanning of record, including written arguments, our findings are as under:-

 

9.             Learned Counsel for the Opposite Party No.2 raised an objection that the Complainant does not come under the ambit of the definition of consumer under the Consumer Protection Act.  However, we are not impressed with the same, for the reason that the National Consumer Disputes Redressal Commission in “Crompton Greaves Limited v. Daimler Chrysler India Private Limited”, 2016 SCC OnLine NCDRC 2121, observed that, If a car or other goods are purchased or the services are hired or availed by a company for the personal use of its directors or employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company.  The acquisition of the goods or the hiring or availing of services, in order to bring the transaction within the purview of section 2(7) of the Consumer Protection Act, therefore, should be aimed at generating profits for the company or should otherwise be connected or interwoven with the business activities of the company. The purpose behind such acquisition should be to promote, advance or augment the business activities of the company, by the use of such goods or services. Hence, relying on the above-settled proposition of law, to our mind, the Complainant is a consumer under the Consumer Protection Act, 2019 as the said car was purchased for the personal use of the Director of the Company and the purpose behind such purchase was not to earn profits or to advance the business activities of the company. As such, objection raised by the Opposite Party No.2 in this regard stands rejected.

 

10.           Short question for adjudication in this complaint is whether the complainant is entitled for the relief claimed, namely, replacement of the vehicle since the vehicle is found to have manufacturing defect with compensation. The answer to the question posed is in negative for the reasons recorded hereinafter.

 

11.           The vehicle in question was purchased on 21.10.2020. It is the case of the Complainant that right from the first month of its purchase, there was problem in the break pad of the car which resulted in screeching noise. The said defect, admittedly, was rectified by the Opposite Parties by changing the breaks paid kit. The life span of the break up depends on the driving habits and conditions of roads on which the vehicle is being driven and how and at what speed the breaks are applied. Record shows, the vehicle had a history of accidents, in as much as, it met with accident on 01.04.2021 at odometer reading of 12139 Kms., on 21.08.2021 when it had covered 17927 Kms. and on 13.09.2021 when the vehicle had run 19477 Kms. when invoice to the tune of Rs.1,03,315/- dated 15.09.2021 was raised in the name of the insurance company. The vehicle again met with an accident in the month of January 2022 and invoice to the tune of Rs.60,254/- dated 14.01.2022 was raised in favour of the insurance company.  It again met with an accident in the month of June 2022 and invoice to the tune of Rs.1,66,482/- dated 29.06.2022 was raised in favour of the insurance company. Pleadings shows, notwithstanding the aforesaid accidental repairs, the Complainant has leveled series of allegations after especially after 16.09.2021 when the vehicle was handed over to the complainant after the accidental repairs. Even after the accident, the complainant was extended benefits of warranty and the invoice for the charges for STARTER MOTOR EXC and COLUMN LOCK was raised in favour of Opposite Party No.2 (Volvo Auto India Pvt. Ltd. to the tune of Rs.54,368/- (Annexure R-1). Annexure R-2 which is a repair order categorically shows that the representative of the complainant has mentioned his concerns and the same were recorded in the column of DEMANDED REPAIR (Customer Voice). The demand was only for replacing the engine oil, oil filter, gasket AC filter and belt set, in addition to it, it was also mentioned that "the driver side seat cooling function not working to be check".  This shows that the vehicle was perfectly alright in all respect as no other concern was raised by the representative of the complainant.  Further, this also fortifies that the concerns raised by the complainant in the mail dated 17.09.2021, 18.01.2022 and repeated through notice dated 28.01.2022 (Annexure C-6) stood resolved. The vehicle had covered 31786 Kms upto 26.04.2022 when the vehicle was brought to the dealership. The minor defects do occur in any machinery and especially in the electronic components. Annexure R-2 contains the concerns raised by the representative of the complainant at the time of handing over the vehicle to the dealership. The vehicle again reported in the dealership for accidental repairs on 16.06.2022 and no other concern was raised by the representative of the complainant except the accidental repairs. This fact of not raising any other concern on 16.06.2022 (Annexure R-3) goes a long way to prove that the vehicle had run smoothly (Odometer reading 31786 to 34626) between the periods 26/29.04.2022 to 16.06.2022.

 

12.                   Learned Counsel for the Complainant argued that there was a deliberate misrepresentation on the part of Opposite Parties, as a defective car was sold to the Complainant under the garb of heavy discount. However, we do not find any merit in this argument. Admittedly, the year of manufacturing of the vehicle was 2019 and it was sold on 21.10.2020 as detailed in Annexure C-2.  The discount/ rebate in price was allowed to the Complainant solely on account of the manufacturing year of the vehicle and such discounts are being given on those vehicles which could not be sold in the year of manufacturing, such practices are usually prevalent in the automobile industry. This does not remotely mean that the Opposite Parties sold a defective car to the Complainant. 

 

13.           Learned Counsel for the Complainant also argued that there was problem in the alignment system of the car, which the Opposite Parties failed to rectify despite repeated attempts. This limb of argument is lame of strength, in as much as, the swing problem is the result of malfunctioning of alignment system and a periodical alignment and wheel balancing is required to be undertaken by the owner of the vehicle. Moreover, it varies as per the usage of the vehicle and conditions of the road where the vehicle is being plied. 

 

14.           Learned Counsel for the Complainant further argued that there has been continuous issue regarding fuel mileage average, in as much as, the claimed average per litre of the company is 10.5 per litre whereas the car is running 9.5 per litre, but no corrective steps were taken by the Opposite Parties. A similar issue came up for consideration of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.3666-3667 of 2014 (Em Pee Motors Ltd. vs. Ramesh Kumar Bamal & Anr.), Revision Petition No.3925 of 2014 (M/s. Toyota Kirloskar Motors Pvt. Ltd. vs. Ramesh Kumar Bamal) and Revision Petition No.3980-3981 of 2014 (Ramesh Kumar Bamal vs. M/s. Toyota Kirloskar Motors Pvt. Ltd. & Anr.) decided on 16.01.2015 and the following view was taken:-

          “In our opinion, if the manufacturer of a vehicle claims a particular mileage based upon the result of a test conducted by a third party such as ARAI which is a body under the aegis of the Government of India, it cannot be said to have published false information or made a false representation with respect to the fuel economy of the vehicle. The very use of the word “falsely” in clause I of Section 2(r)(1) of the act clearly indicates that the representation which is impugned before a consumer forum should be false to the knowledge of the person by whom it is made. If a person bonafidely believes upon the report submitted by a third party such as ARAI and represents accordingly to the members of the public, it cannot be accused of having made a false representation.

                    The mileage given by a vehicle is the result of a number of factors including (a) the road on which the vehicle is driven, (b) the traffic on the road at the time it is driven, (c) the quality of the fuel used in the vehicle, (d) the speed at which the vehicle is driven, (e) the number of times brake is applied to stop the vehicle, (f) load carried in the vehicle, (g) air pressure in the tyres/tubes, (h) condition of the tyres and (i) the overall condition of the vehicle, etc. Therefore, a vehicle which gives a particular mileage under standard test conditions will never be able to deliver the same mileage when it is driven on a city road and that too, under conditions different from the conditions under which it was test driven.”

 

                In the present case, it has been clearly stated in the reply filed by Opposite Parties that Annexure C-3 which is a vehicle history sheet is not the mirror fuel mileage and fuel mileage average depends on the driving habits of the driver of the vehicle. Pertinently, the average of the vehicle is certified as per ARAI certification required under Section 115 of Central Motor Vehicle Rules/Act and average given by a vehicle depends on several factors such as driving habits which having person to person and the driving conditions.  Since the vehicle in question was driven by the complainant on city road highway and not on a testing track, the average which the car was able to achieve on the testing track could not have been achieved.  Moreover, the person who drive the vehicle on a testing track is a trained person who knows how much should be the speed at a particular point on the track, which gear is to be used at what speed and when the break if necessary is to be applied.  Those ideal testing conditions are not available on a city road or even on a highway.  Therefore, to our mind, there is no force in this argument raised by the Complainant and the same is declined.

 

16.           No other point was urged, by the Counsel for the parties.

 

17.           In view of the foregoings, it can safely be concluded that there has been no deficiency in service on the part of Opposite Parties and the whole gamut of facts and circumstances leans towards the side of the Opposite Parties. The case is lame of strength and therefore, liable to be dismissed.

 

18.           Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any deficiency in service on the part of the Opposite Parties. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.

 

19.           Pending application(s), if any, also stand disposed off as having been rendered infructuous.     

 

20.           Certified Copies of this order be sent to the parties, free of charge.

 

21.           The file be consigned to Record Room, after completion.

Pronounced.

Jul. 22, 2023.                                        

 

Sd/-

 (PADMA PANDEY)

        PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

 

“Dutt”