General Motors India Pvt. Ltd vs Mitali Aggarwal

APPELLANT has filed this appeal against the order dated 03.07.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission '') in C.C. No. C -88/2002 - Ms. Mitali Aggarwal Vs. British Motor Car Co. (1934) Ltd. & Ors. by which, complaint was allowed and OP No. 2 was directed to refund the cost of the vehicle and further to pay compensation of Rs.2,00,000/ -.

BRIEF facts of the case are that complainant/Respondent No.1 purchased Opel Astra Club Car from OP No. 1/Respondent No. 2 on the assurance that car is free from all mechanical and manufacturing defects and it has been test driven in one of the best test -tracks of the country and also tested by the technicians. Employees of OP Nos. 3&4 also assured same things. It was further submitted that since 12.02.2001, the purchased car was not running properly and despite numerous complaints to OPs, defects have not been rectified. Car is giving humming sound from the engine and it increases on starting air conditioner. It was further submitted that there was water leakage from the sunroof, steering was noisy and wobbling/play giving low average and colour of spoiler has faded. Complainant got first service of his car at the workshop of OP No. 4, but the problems still persist and car is not running properly. He has further narrated complaint numbers along with job cards and mileage, which are as follows: JUDGEMENT_544_NCDRC_2014.html Check noise while running, low average , steering wheel ray adjust, fuel gauge not showing full. Every time OP ''s concerned persons insisted the complainant to get some parts of the vehicle changed, but still the problem persists and in such circumstances, husband of the complainant wrote many letters to OP Nos. 1 & 2 for rectifying the defects, but with no result. OPs have committed unfair trade practice. Complainant sent legal notice dated 11.02.2002 for refund of the whole amount or replace the vehicle, but nothing has been done. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. OP No. 2 resisted complaint and submitted that complainant is not a consumer under the Consumer Protection Act and State Commission has no jurisdiction to entertain the complaint and matter is exclusively travelled by Civil Court. It was further submitted that OPs never assured complainant that Opel car is free from all mechanical and manufacturing defects and it has been test driven in one of the best test -tracks of the country and also tested by the technicians. OPs further denied humming sound from the engine of the car. It was submitted that sound of the engine of the complainant ''s car is the same which is present in all the cars manufactured by OP No. 2. As and when defect was pointed out by complainant, the same was rectified. It was further submitted that during service repair necessary parts were replaced under warranty and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint as aforesaid against which this appeal has been filed.

HEARD learned Counsel for the parties and perused record.

LEARNED Counsel for the appellant submitted that inspite of no manufacturing defect in the vehicle, learned State Commission has committed error in allowing complaint along with compensation; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed. Perusal of different job cards from 12.04.2011 reveals that strictly speaking there was no manufacturing defect in the purchased car and after routine checkup; complained problems were sorted out on the same day. First job card dated 12.04.2001 was pertaining to Engine missing pickup less with A.C. i.e. after two months of purchase of car which was sorted out on the same day. Next job card dated 4.5.2001 pertaining to low average and steering wobbling was also sorted out on the same day. Next job card dated 10.7.2001 was after two months of previous job card it was complained that color of spoiler was fading which does not tentamounts to manufacturing defect in the vehicle. Another job card dated 26.7.2001 pertaining to complaint regarding water leakage from sunroof, and steering play at high speed were also rectified on the same day. Another job card dated 15.09.2001 was pertaining to steering noisy, body noise and engine sound which defects were also rectified on the same day. Another job card dated 11.10.2001was pertaining to noise, low average, steering wheel ray adjust, fuel gauge not showing full and left hand side door mirror adjustment. After removing these defects on next day, vehicle was given to the complainant. Apparently, no defect was repeated in the job cards and defect shown in job card does not amount to manufacturing defect, complainant was not entitled to replacement/refund of the price.

SOME other job cards dated 8.2.2002 pertaining to wheel balancing and 21.4.2001 pertaining to horn check also cannot be termed as manufacturing defect and these repairs were routine repairs.

LEARNED Counsel for the appellant submitted that in case no manufacturing defect is found in the vehicle, replacement/refund of price should not be ordered and only some compensation should be awarded. In support of his contention, he has placed reliance on the judgment of Hon ''ble Apex Court in AIR (2006) (SC) 1586 - MarutiUdyog Ltd. Vs. SusheelKumar Gabgotra & Anr. in which it was held that if there is no foundation for holding that there were manufacturing defects in the vehicle, but only minor repairs were required and carried out, replacement of vehicle is not justified. Hon ''ble Apex Court set aside the directions of High Court regarding replacement of vehicle and awarded Rs.50,000/ - in lump sum. Admittedly, in the present case, all defects were removed from time to time on the same day by the appellant without charging any money as vehicle was in warranty period, it would be appropriate to grant lump sum compensation for inconvenience caused to the respondent and order of State Commission for refund of the amount and compensation is to be set aside as the vehicle is in possession of OP/complainant since last 13 years and vehicle is still running. Learned Counsel for the respondent placed reliance on judgment of this Commission reported in I (2208) CPJ 19 (NC) - Hyundai Motors India Ltd. Vs. Affiliated East West Press (P) Ltd. in which order of State Commission for refund of entire cost of the vehicle after returning back the vehicle was upheld. In the aforesaid case, similar complaint was made on number of occasions and vehicle was kept by the dealer for 12 days for removing defects and dismantled engine without informing the purchaser and even after that some problems persisted. Facts of the aforesaid case are not applicable to the present case as in the case in hand apparently there was neither any manufacturing defect nor any defect repeated in other job cards.

IN the light of aforesaid discussion, impugned order is liable to set aside, but it would be appropriate to grant compensation of Rs.1,00,000/ - to the complainant on account of inconvenience and mental agony caused to the complainant for taking the vehicle on number of occasions for minor repair.

CONSEQUENTLY , appeal filed by the appellant is allowed and impugned order dated 3.7.2008 passed by learned State Commission in C.C. No. C -88/2002 - Ms. Mitali Aggarwal Vs. British Motor Car Co. (1934) Ltd. & Ors. is set aside and modified and appellant is directed to pay Rs.1,00,000/ - to the Respondent No. 1 as compensation on account of inconvenience and mental agony.