FORD INDIA PRIVATE LIMITED vs MICHAEL EDINBURG & ANR.

This First Appeal, under Section 19 (sic) of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by Ford India Private Limited, Opposite Party No.1 (Manufacturer) in the Complaint, against the order, dated 05.10.2015, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission"), in Consumer Complaint No. CC/02/204. By the impugned order, while partly allowing the Complaint, preferred by the Complainant, Respondent No.1 in this Appeal, the State Commission has directed the Manufacturer to refund to the Complainant a sum of 6,73,122/-, being the cost of subject vehicle, together with interest @ 9% per annum from the date of the Complaint, i.e. 02.07.2002, within a period of sixty days, with default stipulation of enhancement of rate of interest to 12%

per annum. Besides, the State Commission has also directed the Manufacturer to pay to the Complainant 50,000/- as compensation towards mental agony and harassment and 25,000/- as litigation costs.

It is pointed out by the office that the Appeal is barred by limitation, as there is a delay of 60 days in filing the same. In fact, the delay is 120 days, inasmuch as against the impugned order, an Appeal, under Section 19, is to be filed within a period of 30 days from the date of the order in such form and manner as may be prescribed. An application praying for condonation of the said delay has been filed along with the Appeal. In paragraphs no.2 to 7 of the said application, the explanation furnished for the delay is as under: "2. That it is most humbly submitted that the impugned order was passed by the Hon''ble State Commission, Mumbai on 05.10.2015 in CC/204/2002. The Appellant learnt about the order passed in the proceedings before the Hon''ble State Commission upon receiving a copy of the impugned order from Respondent No.2 on 26.11.2015. It is submitted that prior to 26.11.2015, the Appellant had no knowledge whatsoever of any order being passed in the abovementioned matter. Immediately, thereafter the Appellant approached their counsel Shailesh Thakkar who was conducting the matter on behalf of the Appellant before the Hon''ble State Commission to inform him about the impugned order and also requested him to obtain a certified copy of the order form the Hon''ble State Commission, since, the first free certified copy of the order has not been received by the Appellant. The appellant also requested the counsel to also send the entire record pertaining to the matter to be able to take further course of action in the matter.

That the counsel Mr. Shailesh Thakkar applied for a certified copy of the order from the office of the Registrar attached to the Hon''ble State Commission, Mumbai. The office of the Registrar, State Commission, prepared and issued a duplicate certified copy of the impugned order on 30.12.2015. The counsel sent the said order to the Appellant through Speed Post on 09.01.2016 which was received by the Appellant on 19.01.2016. However, the counsel did not send the entire record pertaining to the matter while citing that the same had been misplaced by him.

That under the circumstance, the Appellant was constrained to approach their empaneled counsel M/s Kochhar & Co. on 21.01.2016 to obtain all necessary documents from the Hon''ble State Commission, Mumbai and to proceed further in the matter by filing an appeal against the impugned order.

That immediately, thereafter the new appointed counsel M/s Kochhar & Co. approached their associate counsel, Mr. Ashok Singh based in Mumbai to obtain the entire record pertaining to CC 204/2002 from the office of Hon''ble State Commission.

That the Appellant through its local counsel appointed by their nominated counsel Kochhar & Co. applied for the certified copies of the pleadings filed in the CC 204/2002 on 01.02.2016. The local counsel in Mumbai received the copies of the pleadings from the Hon''ble State Commission on 08.02.2016. The local counsel then immediately forwarded the same to the nominated counsel Kochhar & Co. on 09.02.2016 which was received by them on 11.02.2016.

That immediately upon receipt of the certified copies of the pleadings etc., the nominated counsel Kochhar & Co. prepared the present appeal and filed the same. ...."

In our view, the explanation furnished by the Appellant/Manufacturer is far from satisfactory. Though the State Commission had sent the free copy of the impugned order to the Appellant by post on 03.11.2015 but the Appellant claims that it did not receive the same. As indicated in the application, the Appellant was duly represented by a Counsel before the State Commission. If he was not present on the date when the State Commission had pronounced the order, he was expected to be vigilant while pursuing his pending matters. Since the Manufacturer and the Dealer are closely connected as Principal and Agent or act on Principal to Principal basis, Counsel appearing on behalf of the Dealer on 05.10.2015 must have informed the fate of the case to Counsel for the Manufacturer. Admittedly, on 26.11.2015 the Appellant had received a copy of the impugned order from the Counsel for the Dealer. Thereafter, no dates of requesting the Counsel at Mumbai for sending the relevant records and his applying for a certified copy of the impugned order, have been mentioned in the application. Though the Appellant received the certified copy of the impugned order on 19.01.2016, yet it took over a month in procuring the relevant record and filing the Appeal before this Commission. Vide the impugned order, the Appellant had been burdened with certain liability but, as is apparent from the above facts, it had pursued the matter in a lackadaisical manner. The explanation furnished is self-serving and does not inspire any confidence. The Appellant is negligent in prosecuting its cause.

In view of the above, we are of the view that the Appellant has failed to make out a "sufficient cause" for condonation of the inordinate delay of 120 days in filing of the Appeal.

Bearing in mind the observations of the Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] to the effect that while deciding an application for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the Consumer Foras are entertained, we are not inclined to condone the inordinate delay of 120 days in filing of the Appeal.

Even coming to the merits of the case, we are of the view that the Appeal deserves to be dismissed in limine for the reasons indicated hereinbelow.

Succinctly put, the facts leading to the filing of the present Appeal are that on 21.03.2001, by availing financial assistance from a Bank, the Complainant had purchased a car "Ford Ikon 1.6", costing 6,38,439/-, from Opposite Party No.2, the Dealer. Immediately after the purchase, when the Complainant was driving the car, he noticed that the same was not working properly, inasmuch as there was irritating noise in the engine; jerks while shifting the gear; and also noise in the suspension of the said car. All the defects were brought to the notice of the Manufacturer as well as the Dealer and as per their direction the car was sent for repairs and service to the workshop of the Dealer on 29.06.2001. Even after repairs having been carried out, the defects persisted in the car and, therefore, the Complainant was not able to use the same. The car was again taken to the workshop of the Dealer on 25.07.2001 and 29.09.2001. Yet the defects could not be set right. The Complainant approached the Customers Assistant Coordinator of the Opposite Parties and also sent him email dated 21.01.2002, with a request to replace the car with a new one and/or to refund the price of the car since it had become unusable and was not roadworthy. On 04.02.2002, the Complainant received reply from the Manufacturer, requesting him to allow the Dealer to pick up the car for necessary inspection. From the Repair Order dated 13.02.2002 the Complainant surprisingly came to know that the Dealer had carried out certain major repairs in the car without his knowledge and approval. On 27.02.2002 the Complainant received another letter from the Manufacturer, acknowledging the defects and seeking permission to carry out the repairs, which, pertinently, the Dealer had already carried out on 13.02.2002. Ostensibly to regularise Dealer''s irregularity, the Manufacturer also offered to extend the warranty for one year. Thereafter, though protracted correspondence had exchanged between the parties, the request of the Complainant for replacing the car in question with a new one or refunding the cost thereof and settling the matter amicably did not evoke any response, except a letter dated 09.05.2002 from the Manufacturer, offering an extended warranty for 2 more years. The Manufacturer even offered to sell the car on the condition of payment of 8000/- per month from the date of purchase, besides registration and other charges. On 20.05.2002, the Complainant got issued a notice to the Opposite Parties but received no response from them.

In this background and left with no alternative, alleging deficiency in service on the part of the Opposite Parties in selling a defective and substandard car and for recovery of the resultant loss suffered by him, the Complainant filed the afore-noted Complaint before the State Commission, praying for a direction to the Opposite Parties to pay to him 6,73,122/- with interest @ 18% per annum from 21.03.2001 till payment together with compensation of 50,000/- for mental torture and harassment; litigation expenses amounting to 37,000/-; and damages/costs quantified at 10,000/-.

The Opposite Parties contested the Complaint by filing their written version. The Manufacturer went on to the extent of raising highly technical objection to the effect that the Complainant having purchased the car for his business purpose, he was not a ''consumer'' as defined in Section 2(1)(d) of the Act. While refuting that it was only after few days of the purchase, there was noise in the engine or jerks while shifting the gear and noise in the suspension, it was pleaded that as per warranty, on 28.06.2001 the Complainant had brought his car for the first service, on which date he had not complained of any noise from the clutch or suspension. Only problem complained of related to engine vibration, which was attended to the satisfaction of the Complainant. On 25.07.2001 the car was brought for rectification of silencer noise, which was rectified. It was asserted that the complaints of silencer bend etc. were due to operational lapse of the car by the Complainant and could not be equated to a defect in the car; the car was roadworthy; on 21.01.2002, when the Complainant approached the Customer Care Coordinator of the Manufacturer, making complaints in the car, on their instructions, the Dealer attended to the complaints and rectified the same; it was only on receipt of the complaint from the

Complainant that on 13.02.2002 the Dealer had carried out the repairs; defects in the car were not acknowledged in letter dated 27.02.2002; offer to extend warranty by one more year could not be construed as an admission of manufacturing defects in the car; and though the complaints in the car were rectified but the Complainant failed to take the delivery of the same and with malafide intentions was asking for replacement of the vehicle or refund thereof.

Similarly, the written version, filed on behalf of the Dealer was also one of total denial. However, it was admitted that since 13.02.2002 the car was lying with them but its not being roadworthy was denied.

On appraisal of the evidence adduced by the parties before it, the State Commission has held that there was deficiency in service on the part of the Opposite Parties in supplying a defective car to the Complainant. However, since the Manufacturer and the Dealer act on ''principal to principal'' basis and there was no creation of contract of agency, no relief could be granted against the Dealer. Accordingly, the State Commission partly allowed the Complaint and issued the afore-noted directions to the Manufacturer. While doing so, the State Commission observed as follows: "In the facts narrated above, we are of the view that ''LH Axle Shaft'' being a major part, inviting a dangerous situation on the road, requiring to be replaced for three times within a span of six to seven months, itself amounts to a major mechanical defect."

Hence, the present Appeal by the Manufacturer.

The expression "defect" is defined in Section 2(1)(f) of the Act, which reads thus:- " ''defect'' means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied, or) as is claimed by the trader in any manner whatsoever in relation to any goods."

In order to establish "defect" in any goods, it has to be proved that: (a) there is a fault, imperfection or shortcoming; (b) such fault, imperfection etc. is in the quality, standard, etc.; (c) which is required to be maintained by or under any law for the time being in force; or (d) which is claimed by the trader in any manner whatsoever in relation to any goods. As noted above, the vehicle in question is manufactured by an internationally renowned Company with brand name "FORD". A person purchasing a vehicle of the said brand takes it for granted that the quality and standard of the vehicle would be world class and hassle free. The unusual sound while shifting the gears, for which during the period from June 2001 to February 2002 the vehicle had to be taken to the workshop of the Dealer four times; unusual sound of engine vibration; the problem of silencer noise and unusual sound while shifting the gears on 24.07.2001 and the resultant replacement of silencer and axle; complaint of sound while shifting the gears and noise from suspension on 27.09.2001, due to which the axle was again replaced; the need to replace the LH axle and other parts by the Dealer on 13.02.2002 etc., in our opinion, is more than sufficient to

demonstrate that the vehicle had some fault, which was brought to the notice of the Dealer within four months of the purchase of the vehicle, and was admittedly repaired, though during the warranty period. The bare fact that a brand new car needs to be taken to the workshop a number of times, is per se demonstrative of the fact that there were shortcomings in the car; it was imperfect, and much below the expected quality and standard of the vehicle manufactured by "FORD". We say no more except to note the contrast in the pre-sale and post-sale behaviour and attitude of the Manufacturers in this country and other countries, where the kind of harassment the Complainant has undergone at the hands of the Manufacturer and Dealer, would have attracted huge amount of damages. Perhaps, one of the factors, which emboldens the Manufacturers not to accept the defects and encourage litigation on one or other pretext is the delay in disposal of complaints and the reliefs being granted in favour of the successful Complainants.

In view of the above, in our view, the State Commission has rightly arrived at the conclusion that the subject vehicle has manufacturing defects.

For all the foregoing reasons, the Appeal is dismissed as barred by limitation as well as on merits.