MARUTI UDYOG vs VIKAS VINAYAK

THIS appeal has been filed against the order of District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (for short, hereinafter, to be referred as District Forum-II), dated 1.5.2003 in Complaint Case No. 1055 of 1999, Mr. Vikas Vinayak v. M/s. Maruti Udyog Ltd. & Anr.

ESSENTIALS of the complaint are that the complainant purchased a Maruti Car for Rs. 2,03,000/- on 7.12.1998 from M/s. Joshi Auto Zone Pvt. Limited, Chandigarh (O.P. No. 2). The car is manfuactured by M/s. Maruti Udyog Limited (O.P. No. 1). O.P. No. 2 is the authorised dealer of O.P. No. 1. The car carried a warranty for a period of 12 months from the date of delivery for unlimited mileage. On 6.1.1999 the complainant took the car to workshop of O.P. No. 2 as he noted that the self starter was slipping and there were sounds from various sides of the car. On this date first free service was done and repairs to left front door were carried out. However, the self starter was not repaired for which the complainant was asked to bring the car again on another day. The complainant returned dissatisfied and till 12.2.1999 i.e. the date of second free service he was put off on one pretext or the other regarding repairs to the self starter. Inspite of the complainant repeating his complaint about self starter it was not repaired and only service was done, but after this service the car started producing another noise. So the car was again taken to O.P. No. 2 on 13.2.1999 and whole set of wire of speedometer had to be changed being defective. Repairs done to the left side door on 6.1.1999 also proved unsatisfactory and the complainant had to again take his car to O.P. No. 2 on 3.5.1992 for repairing this door as well as some gear work. Third free service was done on 29.6.1999 but even till then the repairs to self starter was not done. On 12.7.1999, O.P. No. 2 attended to the defect in the self starter and found that the fly wheel of the starter was damaged. The fly-wheel was changed and for doing this the engine had to be dismounted and remounted. However, the problem with the self starter still remained. So again on 14th July, 1999 the car was taken to O.P. No. 2 but he was told that newly fitted fly-wheel will adjust itself in 2-3 days. But again on 17.7.1999 the problem persisted. He was directed to go to M/s. Shubh Enterprises, Mani Majra, Chandigarh. O.P. No. 2 gave the complainant a letter saying that there was starting problem even after replacing the fly-wheel and that should be rectified. The complainant went to M/s. Shubh Enterprises on 19.7.1999 and 20.7.1999 but the car was not attended to as their mechanic was not available. On the complainant ringing up O.P. No. 2 about M/s. Shubh Enterprises not attending to the car, he was asked to bring the car to the workshop of O.P. No. 2 by Mr. Inderjit Garg (Works Manager) of O.P. No. 2. On 21.7.1999 the defect of the Self Bendex was detected and the same was rectified. On 3.8.1999 the complainant complained to O.P. No. 2 that mattress of the car used to remain wet during rainy season or when the car was washed, however, he was asked to come on 4.8.1999. On 4.8.1999 the car was taken to the workshop for this defect i.e. water leakage and low pickup and the same was entered in the job card. While checking for water leakage it was found that there was a visible hole in car chassis. Sh. Inderjit Garg, Works Manager of O.P. No. 2 honestly admitted that the hole in the chassis is a manufacturing defect. He told the complainant that he would apply M. Seal to the hole for which the complainant will have to pay. The complainant requested that application of M. Seal be recorded on the invoice, however, Sh. Inderjit Garg refused to oblige. The complainant met Sh. Rajeshwar S. Bal, General Manager of O.P. No. 2 and sensed something fishy and immediately got the two copies of job order No. 0028671, dated 4.8.1999 xeroxed. In the meantime the receptionist asked the complainant to return the Job Card which he did but retained the xeroxed copies. The complainant and the General Manager of O.P. No. 2 personally saw the car. The General Manager told the complainant that it was a petty defect and would be rectified by application of M. Seal but the complainant''s request to endorse this repair in the invoice was refused by the General Manager, too. The complainant did not permit use of M. Seal to block the hole. The complainant was then forced to sign that he had received the car in good condition with respect of everything and was only then given the keys of the car. The complainant wanted to sell the car but he was told that due to the dismounting and remounting of the engine the value of the car depreciated by 20% and there was depreciation of another 20% due to hole in the chassis. The complainant served a legal notice to O.P. No. 2, but since the O.Ps. failed to remove the defects in the car there was deficiency in service and the manufacturing defect was not removed by O.P. No. 1, the complainant filed this complaint praying for the following reliefs : (a) Refund of value of the car i.e. Rs. 2,03,000/- with interest @ 18% per annum from 7.12.1998 till payment and take back the car. or (b) Exchange the car with a new one. or (c) Sell the car with present defects and pay the price fetched plus the difference in purchase price of Rs. 2,03,000/- alongwith interest @ 18% per annum. or (i) Pay Rs. 40,000/- for causing 20% depreciation to the value of the car by dismounting and remounting of engine while repairing self starter. (ii) Pay Rs. 40,000/- for further depreciation in the value of the car due to hole in the chassis above the left wheel of the car. (iii)Pay Rs. 3,000/- for petrol consumed for various visits to O.P. No. 2. (iv) Pay Rs. 5,000/- paid as travelling charges by bus/auto. (v) Pay Rs. 20,000/- for mental agony and harassment.

The O.P.''s. version is that there was no defect in the car related to the door of the car and also of self starter till the final free service of the car done on 29.6.1999. However, it is admitted that on 13.2.1999 cable accessory of the speedometer was changed under the warranty condition free of charge. It is denied that there is any hole in the chassis of the car or that Sh. Inderjit Garg made any statement that there was a hole in the chassis of the car. Regarding self starter it is stated that this defect was attended to by O.P. No. 2 at its workshop on 12.7.1999 when the fly wheel of the starter was changed. The complainant was referred to M/s. Shubh Enterprises only to satisfy the complainant through a third agency, but the complainant never went to M/s. Shubh Enterprises. On 21.7.1999 just to satisfy the complainant again the self starter was attended to efficiently. It has been stated that changing of fly wheel is a 10 minutes job and does not involve removing the engine and it has been reiterated that the engine was never removed while doing any job at the workshop of O.P. No. 2.

In their analysis of this case learned District Forum-II believed the version of the complainant regarding his pointing out various defects in the car to O.P. No. 2 because these defects are noted in the job card of O.P. No. 2 and job card which is in possession of O.P. No. 2, have not been produced by the O.P. as evidence. It, however, also noted that the complainant has exaggerated his version because Sh. Dinesh Chawla, Supervisor of O.P. No. 2 has in his affidavit stated on oath that fly wheel of the car was removed and replaced under the condition of warranty and as per him it is just a ten minutes job which does not involve removal of the engine. This averment of Sh. Chawla has not been controverted by the complainant. The learned District Forum, therefore, concluded that the engine of the car had never been dismantled by O.P. No. 2.

LEARNED District Forum has also accepted the version of the complainant regarding his pointing out the hole in the car to Sh. Inderjit Garg and Sh. Garg accepted it as a manufacturing defect because the complainant has stated it on oath whereas no affidavit of Sh. Inderjit Garg has been filed to controvert the averments made by the complainant. The learned District Forum-II also observed that the defect of the slipping of self starter existed in the car soon after its purchase by the complainant or at least it erupted before 12.7.1999 when the fly wheel of the starter was changed and concluded that services rendered by O.P. No. 2 were not upto the mark and because of this the complainant had to take the car to O.P. No. 2, 12 times between 6.1.1998 and 4.8.1998 i.e. in a span of seven months. It also held that there is a hole in the chassis of the car but also held that there is no positive evidence on record to hold that this defect existed in the car at the time of purchase. It was also held by the learned District Forum that since the hole can be effectively plugged/repaired with M. Seal, it is difficult to hold that there is manufacturing defect in the car. In the view of the learned District Forum, "though the defects as stated above and deficiency in service established, yet without anything more it is difficult to hold that there was manufacturing defect in the car itself". The learned District Forum-II also observed that after 4.8.1999 the O.P. made repairs to the car to some satisfactory extent so as to keep it running on the road. The learned District Forum, therefore, held that it is not a fit case for replacement of the car more so when the complainant himself has sought monetary compensation for the defects pointed out. The learned District Forum, therefore, directed the O.P. to pay Rs. 50,000/- as compensation to the complainant and also to pay Rs. 1,000/- as costs of litigation.

AGGRIEVED by this order O.P. Nos. 1 and 2 have filed this appeal. The appeal having been taken on board, record of the complaint case was summoned and notice was sent to the respondent/complainant. Mr. Pramod Kumar, Advocate appeared for the appellant whereas Mr. G.I. Sharma, Advocate represented the respondent/complainant. Mr. Pramod Kumar, Advocate submitted that the learned District Forum had, in the impugned order, held that there is no manufacturing defect in the car and it also observed that the claim of the respondent/complainant is highly exaggerated. He referred to Para 13 of the order wherein the learned District Forum has inter alia stated that "it is difficult to hold that there was manufacturing defect in the car itself". He also referred to Para 15 of the impugned order wherein it has been stated that "in the present case as indicated above, no manufacturing defect in the car has been proved". He further submitted that in the impugned order relief has been granted based on conjectures and surmises. Moreover, incidental relief has been granted even though primary relief has been declined. He further clarified that the relief claimed for a total amount of Rs. 1,08,000/- out of which Rs. 40,000/- each has been claimed for the manufacturing defect and dismounting and remounting of engine which has been held as not proved and out of balance Rs. 28,000/- claimed there is no cogent proof of the damage suffered and travelling expenses incurred particularly when there is a positive finding that the car always remained on road. He, therefore, submitted that the learned District Forum had erred in granting Rs. 50,000/- as compensation. He finally submitted that once the learned District Forum has held that there is no manufacturing defect every claim automatically goes. To support his plea he cited the case of Maruti Udyog Limited v. Kamaljit Kaur, decided by this Commission on 28.8.2003. He thus prayed that the appeal be allowed and the impugned order be set aside. In response Mr. G.I. Sharma, Advocate, submitted that there were manufacturing defects in the car. He stated that admittedly the speedometer cables were defective and changed under the warranty clause. He further submitted that in their letter to M/s. Shubh Enterprises O.P. No. 2 has admitted that even after replacing the fly wheel there is defect in the starting motor. He also added that the fly wheel had been changed on 12.7.1999 but it did not solve the problem of the self starter which was eventually fully repaired on 21.7.1999 when Self Bendex (V.M.) clutch S/A was changed. He pleaded that failure on the part of O.P. No. 2 to identify and repair the self starter amounts to deficiency in service. He further submitted that at Para 13 the learned District Forum has rightly concluded that "service rendered by O.P. No. 2 was not upto the mark and it was obviously this fact which necessitated the complainant to take the car to the workshop of O.P. No. 2 on about 12 occasions. He added on that in this very para the learned District Forum had also concluded that there is a hole in the chassis of the car. To support his pleading he cited order of Hon''ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 240 of 2003 which has been discussed at Para 15 of the impugned order.

FROM the evidence on record and arguments of the learned Counsels for both sides, it emerges that controversy is about the following points : (a) Was there any deficiency in service on the part of O.P. No. 2 ? (b) Was the car engine dismounted to repair the self starter ? (c) Is the car or any of its parts having manufacturing defect ? If so, has that been repaired/replaced under the warranty clause or has the complainant been compensated for it ?

FROM the evidence on record it is evident that problem in the self starter was there from the beginning. Non-production of job cards held with O.P. No. 2, to controvert this averment clearly points towards this and the subsequent change of fly wheel on 12.7.1999, asking the complainant to take the car to Shubh Motors, letter of O.P. No. 2 to Shubh Motors dated 19.7.1999 and subsequent change of the Self Bendex on 21.7.1999 confirm that the repair to the self starter was not attended to with the efficiency expected from an authorized dealer who self professes to be Class ''A'' workshop in the whole of India in customer service. Thus deficiency in service on the part of O.P. No. 2 in handling repairs to self starter is established but at the same time since the repair/replacement has been done under warranty clause there is no deficiency on this count. Coming to the issue of dismounting the engine and remount it for changing the fly wheel of the self starter, we find that unrebutted sworn affidavit of Sh. Dinesh Chawla, Supervisor workshop of O.P. No. 2 wherein he has clearly stated that changing the fly wheel is only a ten minutes job and engine of the car is not removed for this repair puts an end to this controversy. We fully endorse the view of the learned District Forum in this regard and are clearly of the view that no compensation can accrue to the respondent/complainant on this score.

Finally, coming to the issue of hole in the chassis the learned District Forum has on one hand accepted that there is a hole in the chassis but at the same time has also observed at Para 13 of the impugned order that there is no positive evidence on record to hold that this defect existed at the time of purchase of the car. It has further said that though the defect indicated above stands proved yet without anything more, it is difficult to hold that there was manufacturing defect in the car itself. Though we agree this hole in the chassis of the car is not so serious to order replacement of the car yet it is a defect that needs to be addressed to. We don''t agree with the view of the learned District Forum that since it cannot be proved that the hole in the chassis existed at the time of purchase of the car the respondent/complainant loose his right in this context. A manufacturing defect can be observed at any time and it is settled law that the consumer is entitled to get the defective part repaired/replaced under the warranty clause as was indeed done in this case while changing the parts of the self starter and the cables of the speedometer. The car had a warranty of one year w.e.f. 7.12.1998. The respondent/complainant raised the issue of hole in the chassis on 4.8.1999 i.e., well within the period of warranty. The issue was raised with Sh. Inderjit Garg, Works Manager of O.P. No. 2 and Sh. Rajeshwar S. Bal, General Manager of O.P. No. 2, both of them have not rebutted the averments in this regard by filing any affidavit and, therefore, learned District Forum-II was right in drawing adverse presumption against the O.P. and in concluding that there is a hole in the chassis of the car. Though it is also proved that this has not substantially impaired the functioning of the car as the car is on road since its purchase in 1998 till date, yet it is an irritant that needed to be tackled and also it would have marginal impact on the resale of the car. In view of the above discussion we are of the view that the O.Ps. by baldly denying that there is a hole in the chassis of the car have committed deficiency in service in not honouring its warranty obligation''s towards tackling of this defect of hole in the chassis.

IN the light of the above discussion, we find that no case is made out by the complainant for the replacement of the car as no defect pointed out by him has substantially impaired the functioning of the car. We also find that the complainant has not been able to make out any case for the award of compensation of Rs. 40,000/- i.e. 20% of cost of the car for alleged dismounting and remounting of the engine for changing the fly wheel. However, we find that the complainant is definitely entitled to compensation for deficiency in service on the part of O.Ps. for not discharging warranty obligations related to the hole in the chassis and for undue delay and inefficiency in repairing the problem of the self starter. We are also of the view that there is no cogent evidence on record to entitle the complainant to get compensation for petrol and travel by bus/auto rickshaw. Though there is no yardstick in such cases to measure the compensation to be awarded, yet taking a holistic view of the issue, we find that the award of compensation of Rs. 50,000/- by the learned District Forum is definitely on the higher side. IN our considered view compensation of Rs. 20,000/- would be adequate in the instant case. Consequently, the award of compensation in the impugned order is modified to read "IN view of the totality of facts and circumstances of this case, in our view award of Rs. 20,000/- as compensation would be just, fair and reasonable amount to be awarded to the complainant. Order accordingly". Rest of impugned order is upheld. The appeal as well as the complaint case are disposed of in the aforesaid terms. Parties are left to bear their own costs of litigation. It is further ordered that Draft No. 885621, dated 28.7.2003 drawn on State Bank of Patiala for Rs. 25,000/- be returned to appellant-Maruti Udyog Limited and receipt for the same be obtained. This receipt alongwith a photocopy of the aforesaid draft shall be placed in the case file for record. Copies of this order be sent to the parties, free of charges. Appeal disposed of.