Hari Ram Garg vs Chittosho Motors & Anr

This revision petition has been filed by the petitioner Hari Ram Garg against the order dated 26.02.2013 of the State Consumer Disputes Redressal Commission, Punjab, (in short 'the State Commission') passed in FA No.818 of 2012.

Brief facts of the case are that on 11.04.2011, petitioner/complainant purchased one Maruti Alto LXI Car from respondent No.1 (dealer) for Rs.2,88,379/- only when the actual price of the car was Rs.2,85,046/-. The respondent No.1 had received an excess amount of Rs.3,333/- which amounts to unfair trade practice. The car was delivered to the complainant on the same day at 8.00 p.m. without sale certificate and pollution certificate. On 18.04.2011 complainant visited the showroom of respondent no.1 with the complaint that AC of the car was not functioning. On 22.04.2011, sale certificate and pollution certificate were handed over to the petitioner with a delay of 11 days. On 26.04.2011, complainant visited the showroom of respondent No.1 with the complaint that AC of the car was not functioning properly. Respondent No.1 filled the gas and changed the rings. On 18.05.2011 complainant made the prayer for refund of the price of the car. Since then the car in question is in the custody of respondent No.1. Further the petitioner was called to collect the car but petitioner did not collect the same because AC was not giving proper cooling and it was further found that the front bumper of the car was also damaged. On 01.06.2011, complaint was filed by the petitioner/complainant before the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali, (in short 'the District Forum'). On 25.04.2012, District Forum allowed the complaint and passed the following order:-

"13. For the reasons recorded above, the complaint against OP No.2 is dismissed but is allowed against OP No.1. OP No.1 is directed to refund to the complainant the sale price of the car to the tune of Rs.3,03,409/- (Rs.Three lacs three thousand four hundred nine only) and also the registration charges to the tune of Rs.5,997/- (as shown by receipt Ex.C-18) of the Registering Authority, M.V. Chandigarh with interest thereon @ 10% per annum w.e.f 11.04.2011 and 29.04.2011 respectively. It should also pay to the complainant compensation for unfair trade practice for selling a damaged car to the tune of Rs.50,000/- (Rs.Fifty thousand only) and litigation costs to the tune of Rs.10,000/- (Rs.Ten thousand only). Compliance of this order should be made within one month from the date of receipt of a certified copy of this order."

On 15.06.2012, First Appeal was filed by the respondent No.1/OP No.1 before State Commission, Punjab. The complainant also filed an appeal before the State Commission. The State Commission vide its order dated 26.02.2013 partly allowed the appeal of the respondent No.1/opposite party No.1 but dismissed the appeal filed by the complainant as under:-

"34. Sequel to the above discussion, the present appeal (F.A. No.818 of 2012) filed by the appellant is partly accepted and the impugned order under appeal dated 25.04.2012 passed by the District Forum, directing the appellant to refund the sale price of the car to the tune of Rs.3,03,409/-. As well as registration charges of Rs.5997/- with interest @10% p.a. w.e.f. 11.04.2011 and 29.04.2011 respectively, and compensation of Rs.50,000/- as well as litigation expenses to the tune of Rs.10,000/- is set aside. However, the appellant is directed to replace the Air Conditioner of the car in question and to ensure that it works properly and cooling is as per the norms and to replace the clutch system of the car in question with 45 days of the receipt of copy of the order. Nor order as to costs.

The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.

In view of the reasons and discussion held in First Appeal No.818 of 2012 (Chittosho Morots Vs. Hari Ram Garg & Anr.) the First Appeal No.857 of 2012 ( Hari Ram Garg Vs. Chittosho Motors & Anr.) is dismissed. No order as to costs.

Hence the present revision petition.

Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner stated that the car started giving trouble in its air conditioner right from its purchase. The car was taken to the workshop two-three times even within the first and second month for repair of the air conditioner. Respondent No.1/opposite party No.1 repaired the air conditioner by filling the gas but the same did not work properly. Moreover, even the clutch system did not function properly and therefore, consumer complaint was filed before the District Forum. The District Forum got the expert report from the experts first from CTU.I Chandigarh Head Mechanic, which is dated 26.08.2011 and the second report from PEC University of Technology, Chandigarh, which is dated 27.02.2012. The expert report of the PEC Technical University has been submitted by team of three members and the vehicle was inspected in presence of both the parties and therefore, the report is totally unbiased. The report has confirmed the following defects:-

"1. (a) Air conditioner of the car was not giving desired cooling effect.

(b) Clutch was found defective, specially during the beginning of the test drive of the car.

(c) There were scratches/damages on the rear right door of the car.

(d) Scratches were also seen on the left side of front bumper.

(e) The color of the teft fender was mismatching with the color of the bonut.

During inspection and test drive it was observed that the car met with an accident. On the request of Sh. Vijay Sharma, Works Manager, Chittosho Motors, Phase-7, Mohali, the temperature inside the car at different locations was also measured with digital temperature meter. The following observations were made

a) Outside temperature: 27⁰ C

b) Temperature inside the car: 27⁰ C

b) Temperature in front of Air condition____17

d) Temperature on driver's seat: 23

e) Temperature in left front seat: 23

f) Temperature in right back seat: 23

g) Temperature in left back seat: 24"

Learned counsel for the petitioner stated that when there were so many defects confirmed by the expert committee appointed by the District Forum, it clearly means that the whole vehicle was defective and it had manufacturing defects. The dealer had either sold a second hand repaired vehicle or the vehicle had so many manufacturing defects in the car. In both the conditions, the complainant is entitled to get a new car in lieu of purchased car or refund of the total price of the car along with interest.

Learned counsel for the petitioner /complainant further stated that the opposite party No.1 has now closed the workshop and has also fled away with the vehicle as the same was standing in the workshop. Learned counsel stated that as the car had manufacturing defect, the manufacturer opposite party No.2 is equally responsible for replacing the vehicle or for making the payment of price of the vehicle.

On the other learned, counsel for the opposite party No.2/ manufacturer stated that the complaint against opposite party No.2, manufacturer was dismissed, therefore, the manufacturer/opposite party No.2 did not file any appeal against the order of the District Forum before the State Commission. The fact is that the District Forum and the State Commission both have fixed liability upon opposite party No.1/dealer. As both the forum have given concurrent finding of fact so far as the deficiency in service is concerned. This Commission cannot reassess the facts and cannot put any liability on the manufacturer/opposite party No.2. The defects like non-functioning of the air conditioner cannot be considered as manufacturing defect because the car can be run without air conditioner. Moreover, this is an additional attachment, which was provided to the car and does not reflect the basic functioning of the car. It can always be repaired separately. No specific defect in clutch assembly is mentioned by the expert committee and the expert committee has only given a general statement that the clutch is defective. Beyond these two defects, all other defects mentioned in the report of the expert committee are not important and are very small shortcomings if they are considered as shortcomings. Thus, none of these defects can be considered as manufacturing defect and therefore, there can be no liability against opposite party No.2/respondent No.2.

I have carefully considered the arguments advanced by the learned counsel for the parties and examined the material on record. It is true that certain serious defects were noticed by the expert committee and that is why the District Forum had allowed the refund of the price of the car. However, the State Commission has relied on the general principle of warranty that only the components that are defective are required to be changed under warranty and not the whole car as the warranty extends only to different components and there may be different warranty periods for different components/items. Under the warranty clause, it is only the defective parts, which could be changed and there is no provision for change of whole vehicle. I agree with the view taken by the State Commission and this contention is supported by the judgement of the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr., MANU/SC/1519/2006, wherein the following has been held:-

"Consumer- Replacement of Vehicle- Complainant had purchased a Maruti Car from the appellant through its authorized dealer- After delivery of the car, the complainant noticed that the clutch of the car was not functioning properly- Inspite of repeated visits to the dealer as well as the servicing center the car proved to be defective- On complaint made to the Consumer Forum, the Consumer Redressal Commission, which ordered for replacement of the car- On appeal, the High Court confirmed said order- Hence, present appeal- Held, the warranty condition referred only to the replacement of the defective part and not of the car- There was no agreement to replace the engine system- The High Court as well as the Commission were not justified in directing replacement of the car- having regard to the facts of the case and the hardship undergone by the complainant, appellant directed to remove all defects in the car and to pay a consolidated sum as compensation- Appeal allowed."

Coming to the assertion of the learned counsel for opposite party No.2/respondent No.2 that these defects cannot be considered as manufacturing defects, it is seen that the air conditioner in the car was integrated component of the car as is clear from the invoice of the car. The clutch assembly is clearly an intrinsic part of the car and defect in clutch can definitely be considered as manufacturing defect. However, I agree that for every kind of manufacturing defect, the whole car does not require complete replacement. In fact, the warranty will be satisfied if the defective component is replaced by a new component of the same model. It is also true that State Commission has allowed the clutch and the air conditioner, but has ignored the other defects like different colour of different body parts of the car and scratches and dents on the car. In my view, the complainant can be compensated for these defects also apart from replacement of the air conditioner and the clutch as ordered by the State Commission under warranty.

From the above discussion, one thing is clear that the car had manufacturing defect and the order of the State Commission for replacement of air conditioner and the clutch assembly is perfectly in order as per the provision of the warranty and the associated law in this regard. As some of these defects can be called manufacturing defects, the liability of respondent no.2/opposite party no.2 is also there. The complainant is entitled to some compensation which is quantified as Rs.20,000/- in the facts and circumstances of the case.

On the basis of the above discussion, revision petition No.1983 of 2013 is partly allowed. Apart from order of the State Commission, the petitioner/complainant will also be entitled to get the compensation of Rs.20,000/- from the opposite parties. The order of the State Commission as well as this order will be complied with jointly and severally by both the opposite parties within a period of forty five days.