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Judgment
This first appeal has been filed by the appellant M/s. Strands Saloon Pvt. Ltd. against the order dated 20.11.2014 of the State Consumer Disputes Redressal Commission, UT Chandigarh (in short 'the State Commission') passed in CC No.62 of 2014.
Brief facts of the case are that on 10.05.2012, a car Audi Q5 2.0 TDI was purchased by the appellant vide Sale Certificate dated 10.05.2012 from the respondent No.1. It is alleged in the complaint that from the date of purchase of the vehicle, the complainant noticed various inherent defects, which were brought to the knowledge of OP No.1. The vehicle suffered from manufacturing defect and the OP No.1 repaired the same from time to time under the condition of warranty and otherwise. Apart from manufacturing defect in the vehicle which resulted in the seizure of the engine, the complainant also alleged that the manufacturing date, month and year of the vehicle was also doubtful. On 20.02.2014, the complainant got filed 73 litres of diesel in the vehicle. On 22.02.2014 when the complainant started the car at 8:00 p.m.,the same did not start and the complainant called customer care of OP No.1. On 23.02.2014, the vehicle was towed to the workshop of OP No.1. The appellant/complainant explained to OP No.1 that the vehicle was then under warranty. The OPs did not repair the car and presented an estimate of Rs.4,50,064/-. On 02.06.2014, complaint No.62 of 2014 was instituted by the appellant/complainant before the State Commission. On 20.11.2014, the complaint was decided by the State Commission and the same was dismissed. Hence the present first appeal against the order dated 20.11.2014.
Heard the learned counsel for the parties and perused the record. The learned counsel for the appellant stated that the State Commission has observed that the complainant is not a consumer and secondly that the case of the complainant is covered under the exclusion clause for warranty that if the damage is due to contaminated fuel, then the warranty would not be valid. The car was under warranty at the time when it was brought to the workshop. However, the OPs did not rectify the defects on the ground that warranty was not effective due to use of contaminated or improper fuel. For more than 3 years the vehicle is lying in the workshop. The sample of fuel was sent for testing by the OPs. However, the sample was not taken before the complainant or before the representative of the complainant. It has been wrongly alleged by the OPs that the fuel was sampled for sending to test in presence of the driver of the vehicle, who has signed the sample taken memo. OPs asked the complainant to pay for the repairs of the engine and the same was not covered under the warranty due to exclusion relating to use of contaminated fuel. It was argued by the learned counsel that the complainant was not sure which sample was sent for testing and therefore, the test report cannot be relied upon. The sample taken memo was not signed by the driver of the complainant and the signature of the driver has been forged by the OPs. The learned counsel argued that the signature on the sample taken memo alleged to be that of the driver do not match with the signature of the driver on other papers such as Tax invoice and on other repair invoices.
Learned counsel for the appellant further stated that the State Commission has also found that the complainant is not a consumer and that the vehicle was purchased for the commercial purpose. In this regard the arguments of the OPs were accepted by the State Commission wherein the OPs had founded their allegation on some parts of the complaint as well as letters and e-mail sent to the OPs by the complainant mentioning loss of business. The fact of the matter is that the loss of business had occurred to the complainant because the vehicle was not available to the complainant for touring and other engagements. It is not denied that the vehicle is involved in business, but vehicle was being used for transporting the complainant from one place to another and therefore, it was the normal use of the car. It cannot be called a commercial use as the car was never rented out nor it was being run as a taxi. It was being used by the CEO of the complainant's firm. Hence the allegation that the vehicle was purchased for commercial purpose is not correct and OPs have not filed any documents to prove that the vehicle was used for commercial purpose.
It was further contended by the learned counsel that the laboratory test report dated 15.03.2014 has mentioned sulphur content 270 mg/kg, whereas the maximum has been stated to be 50 mg/kg. It was contended by the learned counsel that the vehicle was purchased at Chandigarh and therefore, fuel norms at Chandigarh will apply. Learned counsel has relied upon the report of 'India Fuels Diesel and Gosoline - Transport Policy', wherein the following has been mentioned:-
"3. Technical Standards
3.1 Fuel Sulfur content
The sulfur content of fuel is of interest in India particularly due to diesel fuel subsides and the ever-increasing number of diesel vehicles on the road. The timeline of sulfur reduction in India has been as follows:
Implementation of Fuel Sulfur Content Reduction in India
1995
10,000 ppm (nationwide)
-
1996
5,000 ppm (Delhi + selected cities)
-
1998
2,500 ppm (Delhi)
-
1999
500 ppm (Bharat II, Delhi, limited supply)
-
2000
2,500 ppm (nationwide)
-
2001
5000 ppm (Bharat II, selected cities)
5000 ppm (Bharat II, nationwide)
-
500 ppm (Bharat II, nationwide)
2005
350 ppm (Bharat II, selected cities)
350 ppm (Bharat III, nationwide)
150 ppm (Bharat III, selected cities)
150 ppm (Bharat III, nationwide)
2010
50 ppm (Bharat IV; selected cities)
50 ppm (Bharat IV, selected cities)
On the basis of the above literature, it was argued by the learned counsel that under Bharat III 350 ppm is accepted norm for sulphur content for whole country and 50 ppm has been fixed under Bharat IV for selected cities and Chandigarh does not come in the list of selected cities. From the same literature the learned counsel mentioned that from April, 2014, the selected cities are National Capital area and 33 cities: Delhi, Mumbai, Kokata, Chennai, Bangalore, Hyderabad, Ahmedabad, Pune, Surat, Kanpur, Agra, Solapur, Lucknow, Ankleshwar, Hissar, Bharatpur, Unnas, Rae Bareilly, Aligarh, Jamnagar, Vapi, Puducherry, Mathura, Daman, Diu, Silvasa, Karnal, Valsad, Yamunal Nagar, Kurukshetra, Nizamabad, Medak, Mehboobnagar. Thus, Chandigarh is not included in the list of cities where 50 ppm norm of sulphur content is enforced. When the vehicle was purchased Bharat stage III norms were applicable and at that time for selected cities standard of 150 ppm was prescribed and for remaining country 350 ppm was the standard. Thus, even if the laboratory test dated 15.03.2014 is taken to be correct, it cannot be said that the fuel was contaminated as the report is to be interpreted with respect to the purchase year of the vehicle and with reference to the city.
From the above arguments, learned counsel for the appellant tried to establish that the fuel was not contaminated and the assertion of the OPs for non-application of the warranty due to contamination of fuel is not proved. The State Commission has wrongly relied upon the fuel test report and has accepted the contention of the OPs that exclusion clause relating to contamination of fuel would be applicable in the present case and therefore, the complaint was dismissed. The learned counsel argued that if the report is seen in respect of the purchase year of the vehicle i.e. 2012 and the city of use Chandigarh, the contention of the OPs does not stand on ground and therefore, the decision of the State Commission cannot be sustained.
On the other hand learned counsel for the OPs stated that the vehicle was purchased for commercial use as the complainant firm is engaged in business. The complainant has mentioned in the complaint and various communications sent to the OPs that the complainant has suffered loss of business. The learned counsel particularly referred to e-mail dated 03.03.2014 sent to the opposite parties, wherein following has been mentioned:-
"Already ten days have gone huge loss of business has happened as I am handicapped without vehicle and at the same time I am going through huge mental harassment by u people as u guys are again asking for time."
Learned counsel also referred to another e-mail dated 28.03.2014 from the complainant to the OPs wherein the following has been communicated:-
"It is very strange to receive this mail from you as I have not received any mail regarding fuel report or anything .. and I am still waiting to hear from you guys.
It has been more than a month I have been travelling through taxies for my business work.
At the same time in my last mail I asked u detail about manufacturing date of engine and vehicle which has not been given by you."
Based on the above two e-mails, it was argued that the complainant was involved in the business activities and was using the car in question for the commercial purpose. Hence, the complainant was not a consumer. The learned counsel further argued that the State Commission has rightly observed that the complainant is not a consumer.
The learned counsel for the OPs further argued that the car has traveled for 87000 km. over two years when it was brought to the garage for repairs. As the car has traveled satisfactorily for so long, it cannot be said that the car was having any manufacturing defect.
Coming to the warranty clause the learned counsel for the respondent stated that under the other exclusion the following has been mentioned:
"Warranty
New Vehicle Warranty
Other Exclusions
Damage or malfunction caused by using contaminated or improper fuel, operating fluids, or other chemicals."
If the fuel is contaminated, the warranty ceases to operate. From the inspection of the vehicle it was felt that the engine has been damaged due to use of wrong quality of fuel, therefore, the sample of fuel was taken in the presence of the driver and the same was sent for testing. The laboratory report dated 15.03.2014 clearly mentions the sulphur content as 270 mg/kg, whereas the permissible limit is 50 mg/kg. First of all it is totally denied that the signature of the driver was forged on the sample memo and secondly the contention of the learned counsel for the appellant that report would not be applicable in the present case is also denied. The learned counsel argued that the fuel was tested in 2014, therefore, the report has given norms of 2014. Hence no shortcoming can be alleged in the test report.
I have given a thoughtful consideration to the arguments advanced by both the learned counsel and have examined the material on record. It is admitted that the vehicle was brought for repair to the workshop of OP-1 when the vehicle was under warranty. The opposite parties gave estimate of Rs.4,50,064.91 for the replacement of parts and repair of the car.
So far as the question of the petitioner/complainant being a consumer is concerned, it is seen that the vehicle was purchased for use of the CEO of the petitioner. The loss of business referred to by the learned counsel for the respondents/opposite parties is not related to the use of car. The same may be in the business of the petitioner/complainant and the car in question may not be contributing profit to that business. No document has been filed to prove that the car was being rented out or was registered as commercial vehicle or was being used on any commercial basis. Thus, the petitioner/complainant shall be deemed to be a 'consumer' under the provisions of Consumer Protection Act, 1986.
The warranty was not accepted by the opposite parties on the ground that the fuel used was contaminated and as per point No.9 of other exclusions, any damage or mal functioning was not covered under the warranty. Though the complainant has contested the test report itself on the ground that the sample was not taken in the presence of the complainant or its representative, but even if one does not go into this dispute as the opposite parties have stated that this sample was taken in presence of his driver, the report of the test laboratory needs to be considered. The test report mentions presence of Sulphur content as 270 mg/kg, whereas the report has mentioned the permissible amount of this content as 50 mg/kg. The complainant has submitted literature to dispute the maximum limit of 50 mg/kg. I agree with the contention of the learned counsel for the complainant that as per Bharat III -Stage norms, the 50mg/kg was only for selected cities and in the list of selected cities, Chandigarh is not covered. For rest of the country, the limit is 350 mg/kg. Thus, the tested value 270 mg/kg is well within the norms prevailing at Chandigarh. Thus, it cannot be alleged that the fuel was contaminated. Moreover, the vehicle was purchased in the year 2012 and the same must have complied with Bharat stage emission norms and thus, the vehicle would be having the capacity to use the fuel containing Sulphur content upto 350mg/kg. Thus, the engine of the vehicle cannot be damaged by fuel containing Sulphur content of 270 mg/kg.
From the above examination, it is clear that the respondents/opposite parties were not justified in not honouring the warranty when the vehicle was brought to them for repairs. They should have repaired the vehicle free of cost under the warranty. The State Commission while dismissing the complaint of the appellant has observed that the complainant has failed to make out any case of inherent manufacturing defect, deficiency in rendering service or unfair trade practice on the part of the opposite parties. As there is no expert report so, even though the engine was seized, the manufacturing defect may not be proved beyond doubt, however the deficiency in rendering the service is clearly proved from the examination as aforesaid.
On the basis of the above discussion, it is ordered that the appeal is allowed and the order dated 20.11.2014 of the State Commission is set aside. The respondents/opposite parties are found liable for deficiency in their service. Accordingly, it is ordered that the respondents/opposite parties shall repair the vehicle free of cost within a period of 30 days from the date of receipt of this order and hand over the vehicle to the complainant in running condition with an extended warranty for one year from the date of handing over of the vehicle. The respondents/opposite parties shall also pay a compensation of Rs.1,00,000/- (rupees one lakh only) to the complainant.