VINOO BHAGAT vs GENERAL MOTORS (I) LTD.

SHRI Vinoo Bhagat, complainant, booked an Opel Astra white colour car with M/s. Regent Automobiles Ltd., opposite party No. 2 (OP No. 2) on 22.1.97. He gave a cheque for Rs. 7,34,244/- dated 22.1.97. The Showroom Assistant statedly assured the complainant that the fuel consumption of the car was 10-12 kms. pre litre in city driving with Air Conditioner on and that the white coloured car would be delivered within 10 days. The car was not delivered within the period indicated. The complainant was persuaded to wait for longer period and ultimately informed that a red car was available. The complainant agreed to accept the red coloured car but when he went to complete the formalities to take the delivery, he was informed that a white coloured car had been arranged and he accordingly took the delivery of the same. The car was got registered as DL 3 CJ 2849. The Milometer showed that the car had run 129 kms. The complainant found some defects in the car and had a feeling that the car given to him was not brand new but a used car. The defects were set-right and the car delivered back to the complainant against a certificate dated 17.3.1997, Annexure-R/2 to the effect that the vehicle had been received by the complainant, "tested and found that the job had been done to his entire satisfaction". The complainant, however, added the words "Subject to my claim for replacement". As the complainant was not happy and satisfied, the opposite parties as a gesture of goodwill, replaced the said car with a brand new white coloured car on 25.3.1997. It was registered as DL3 CJ 3770.

THE complainant noticed various defects from the day the new was delivered at his residence on (25.3.1997) and he has given a datewise account of the defects noticed by him about which he had been informing the opposite parties by writing various letters and sending Fax Messages, produced as Annexures with the complaint and as evidence with the complainant''s affidavit. Reference in greater detail to the Annexures would be made a little later. THE grievance of the complainant is that not only the defects pointed out were not removed even though the car was taken to the workshop of opposite party-2 where the Engineers of both the Manufacturer (opposite party-1) and the Dealer (opposite party-2) are supposed to have worked but the car was kept in the workshop for long periods again and again. THE complainant was forced to reach the conclusion that the car given to him suffered from defects which could not be removed and there was no point in accepting the representation of various functionaries of opposite parties that the defects had been removed. It is in these circumstances that the complainant declined the offer of opposite parties to deliver the car at the former''s residence and the car has been admittedly lying in the workshop of opposite party-2 since 25.5.1997. Another aspect of the case of the complainant is that the Opel Astra Car had been advertised by the opposite parties as a marvellous example of German Engineering. In fact, the car had an engine made by Holden Co. of Australia and this important fact was not disclosed. It was, therefore, a case of unfair trade practice. The complainant claimed refund of the price of the car besides the insurance premium paid by him alongwith 20% interest and Rs. 2.00 lacs as punitive damages and a direction to opposite parties to cease publishing wrong and misleading advertisements.

In the written version filed by General Motors (India) Ltd. (GMI) it was emphatically denied that the showroom assistant had represented that Opel Astra Car gave 10-12 kms. per litre in city driving with A/C on. In fact, fuel consumption was duly given on pages 4,5 & 88 of the Owner''s Manual (copy Annexure-R/1) given to the buyers alongwith the new car. The complainant was also not assured that the car would be delivered within 10 days. As the stock of cars had come by the time the complainant came to receive the delivery of the red coloured car, the white coloured car was given to the complainant as per his choice. The complainant reported some minor defects on 17th March, 1997 and the same were promptly attended to and the car set-right under a certificate of satisfaction signed by the complainant. It was claimed that the car DL3 CJ 2849 was also a brand new car and the reading on the Milometer was on account of distance covered from the Stock yard to the showroom and a trip to the Registering Authority, etc. Even though the car had been used by the complainant for about a month and suffered from no defects, yet it was replaced as a gesture of goodwill and for complainant''s satisfaction. The present car DL3 CJ 3770 which was delivered on 25.3.197 was with a warranty, Annexure-R/3. Under the warranty, the only obligation of the manufacturer was to repair the car free of cost for a period of 12 months or 20,000 kms. whichever was earlier in case of any manufacturing or other defect. In compliance with the warranty obligation, the opposite parties had on each and every occasion checked the car on receipt of a complaint from the complainant and after satisfying themselves that the car suffered from no defects, offered to deliver the same to the complainant who refused to be satisfied and declined to accept the delivery. It was further stated that the car was lying in the Workshop of opposite party-2 since 25.5.1997 as the complainant despite repeated reminders had refused to collect the same and opposite parties were entitled to claim parking expenses from the complainant. It was also stated that any defects were found in the car during the period of warranty, the opposite parties were willing to fulfil its obligations in terms of the warranty. The opposite party controverted the various defects referred to in the complaint and added that for fuel consumption a physical check was carried out on August 10, 1997 in average city conditions in Delhi with A/C on and it was found that the consumption was 9.34 kms. per litre. With regard to the engine of the car, it was stated that the cars sold in India were fitted with the same engine as are supplied by GMI in Europe. GMI, it was added, operates on a global scale sourcing components from various countries which was a universal practice for every kind of industry. It was claimed that the requisite requirements relating to performance of the vehicle were duly verified by the Competent Authorities appointed by the Government of India and necessary certificates were available with GMI. It was denied that the complainant was entitled to refund of the price or any compensation.

WRITTEN version filed by Regent Automobiles, opposite party-2 is broadly on the same lines as that filed by GMI. The additional points made are that engine of the car is programmed through an Engine Management System Computer which is provided in the car which ensures the desired RPM. With regard to level of vibrations, it was stated that the same has been verified with the help of the engine computer and found to be within permissible limits. On one occasion, some delay was caused in returning the car to the complainant as the GMI Engineer, who was required to attend the car had fallen ill. On 16.5.1997, the car was brought to the workshop on the insistence of the complainant who wanted a thorough check-up of the car. The same was done and the car was found to be in order but even after being informed, the complainant did not come to collect the car which had to be delivered at his residence on 18.5.1997. On another occasion, the car was sent after being attended to on 6.6.1997 to the residence of the complainant for being delivered but the complainant returned the car saying that he would come to the showroom of opposite party-2, drive the other cars available there apparently to compare their performances with that of the car in question. Even this extraordinary wish of the complainant was agreed to but he failed to turn-up at the show-room. The complainant was offered that a joint fuel consumption test could be carried-out but the complainant never agreed. In the rejoinder filed by the complainant it was pointed put by the complainant that all. manufacturers of cars in India who used an Engine of a make other than their own, clearly disclosed the make of the Engine. For example, Contessa car-ISUZU Engine. Mahindra Diesel Jeep-Peugeot Engine. Premier NE 118 Nissan Engine. Telco Trucks Tata Cummins Engine., Etc. GMI, on the other hand, did not disclose that the engine in the present car was made by Holden Company of Australia. It was also stated that all other cars made in India including imported cars satisfactorily run on Indian Petrol implying that mere was no need to spend extra amount on imported fuel additive. With regard to the fuel consumption test carried out by opposite Party2, it was stated that the test having been carriedout on Sunday and the distance travelled being 164 kms., the actual figure would work-out to about 7 kms. per litre in typical city traffic conditions on week days. The other defects pointed out by the complainant, spoke for themselves and the case of the complainant stood proved on the principle of res ipsa loquitor. Alongwith the rejoinder, the complainant filed a copy of the Circular Annexure-ZB received sometimes in September, 1997 recommending the addition of one ml. per litre of petrol of imported additive for optimum results.

THE complainant filed his detailed affidavit by way of evidence in support of the complaint alongwith documents Annexures-A to Z, ZA to ZD. On behalf of the opposite party-1, Mr. Anil Popli, Marketing Executive of GMI filed his affidavit. Inter alia, it was stated in the affidavit that Holden Australia is a fully owned subsidiary of GM Corporation. It was further stated that Holden engine was of a German design assembled in one of the Corporation''s plants in Australia. It was further stated that GM operates on a global scale sourcing components from various countries was essential to provide the latest technology in each component as engineered by the German Engineers. In view of the afore-mentioned fact, GM was not required to disclose the make of the Engine, which was product of its own Corporation. With regard to fuel additive, it was stated that all buyers of Opel Astra car were informed at the time of the purchase of the car that a fuel additive be used for better performance of the car. This had been done keeping in view of the quality of fuel available. The Opel Astra Car had a fuel injection system. The performance of the said system was determined by the quality and cleanliness of the fuel used, the quality of fuel available at many out-lets locally was not of the desired standard. The use of the fuel additive was not mandatory but was recommended for optimum performance of the car engines at the time of delivery of the car. It was further stated that the Opel Astra car can run properly on Indian petrol but keeping in view, the poor quality of fuel available, due to large scale adulteration and refinery limits, which are well-known, the GM recommended to its customers to use a fuel additive. It was also stated that the car could be inspected by any Competent Authority to verify the specifications claimed by the manufacturer. In the rejoinder affidavit, filed by way of evidence, the complainant amongst others stated that a German car was one in which all essential components, especially the engine, were made in Germany. Germany meant Germany and not any part of the world. Alongwith the rejoinder, the complainant filed brochure issued by Mahindra Ford and Fax Messages Annexures ZF and ZG sent to GMI by the complainant, replies received from GMI, Annexure ZH and other replies thereto, sent by the complainant Annexure Z1.

BEFORE we deal with the contentions raised by the parties, a brief reference may be made to a Miscellaneous Application dated 27.11.1997 made by the complainant for a judgment on the basis of the admissions on record and for a direction to sell the car pending trial of the complaint. The complainant also filed an additional affidavit dated 27.11.1997 alongwith news item appearing in Times of India dated 26.11.1997 that a quarter million Opel cars had been recently recalled in Germany because they had defective engine. A copy of the Newspaper cutting was enclosed. In reply to the miscellaneous application, it was stated that no interlocutory relief could be granted to the complainant under the provisions of the Consumer Protection Act. The provisions of Order 8, Rule 5-10 were also not applicable to proceedings under the Consumer Protection Act. The other averments made in the application were controverted. It was put to Mr. Sumesh Dewan, Advocate for opposite party-1 on 8.9.1997 whether he was agreeable to the car being sold by a consent order. He did not accept the proposal and accordingly the question of sale of car during the pendency of the complaint was not pursued further. As the main complaint is being disposed of, there is no need to pass a separate order on the miscellaneous application.

ON 28.1.1998, before the commencement of the hearing it was put to the parties whether the car should be got inspected from a technically qualified person of unimpeachable integrity and his opinion invited especially with regard to the defects alleged by the complainant and the stand taken thereon by the opposite party. The said suggestion was welcomed by the Counsel for the opposite parties-1 & 2 but the complainant stated "He had already laid his case on record in necessary details and the case would not advance further any more by having the car inspected from a technically qualified person". It is necessary to notice the nature of the defects pointed by the complainant from time to time and the material relied on by him to substantiate the same.

In Annexure-B, dated 26.4.1997, the complaints reported were : (a) Excessive engine vibration (b) Fuel consumption - Earlier the complainant was getting 10 klms/ litre with occasional use of AC. Later on, he started getting 7 klms/litre, the AC being used more often. (c) Water not being spread on the wind shield. (d) The gear lever not entering the second gear except after being moved round. (e) A little rattling on the drivers window glass .and considerable rattling on seat belt buckle on the left front seat. In the Annexure-C1 dated 6.5.1997, apart from engine vibration, fuel consumption, gear lever and rattling referred to earlier, the complainant pointed out poor de-acceleration. Varying of RPMs during the idling of the engine, the car pulling to the left. The AC of the car made the car too cold to be comfortable. The temperature was not controlled as there was no thermostat.

IN Annexure-F, dated 11.5.1997, the complainant complained about the working of the brakes, especially when the car was riding over a pothole. IN Annexure-C, dated 15.5.1997, it was complained that the engine was running on 3 cylinders implying that the 4th cylinder was defective. Some times the defect cured itself. IN Annexure-H, dated 16.5.1997, it was reported that the engine was missing badly. Most of these defects were repeated in last Annexure-M/1 dated 26.5.1997 sent alongwith the letter Annexure-M of the same date. We have heard Mr. Vinoo Bhagat and Mr. Alok Singh for opposite party-1 and Mr. Rajiv Nanda for opposite party-2 and have carefully gone through the records.

THE first point for our consideration is whether the complainant has proved that the car supplied to him was defective and the opposite parties were liable to either replace the same with a new car free from defects or to refund the price and pay the compensation claimed by the complainant. THE case developed by the complainant is that the various defects were pointed to the opposite parties through letters and Fax messages; Annexure-B dated 26.4.1997, Annexure-C1 dated 6.5.1997, Annexure-G dated 15.5.1997, Annexure-H of the same date, Annexure-I dated 18.5.1997. Various defects were summarised in Annexure-M I dated 26.5.1997. THE car was taken to the workshop of opposite party-2 and the Engingeers of both the manufacturer as well as the Dealer tried to remove the defects but every time the car was brought back, it was found that the defects persisted. THE very fact that the car was taken back by the Engineers indicated that the defects had not been removed and the engineers concerned agreed to make further efforts to remove the defects. THE main defects pointed by the complainant related to engine vibration, fuel consumption. THE contention of the complainant is that he had pointed out the defects in necessary detail in his letters. THE opposite parties failed to specifically controvert the same, alongwith the written version filed on behalf of the opposite parties, the various engineers who had been mentioned by name as having dealt with the complainant failed to file their affidavits and the averments made by the complainant should, therefore, be taken to have been admitted by the opposite parties. THE persistence of the defects in the facts and circumstances of the present case attracted the principle of res ipsa loquitor. We have given our anxious consideration to the contentions of the complainant. In our view, it would not be fair to expect the opposite parties to have controverted each and every complaint and Fax message which were rapidly sent one after the other by the complainant at short intervals. Failure of the opposite parties to have replied to each and every letter cannot, therefore, lead to the conclusion that the various defects pointed out by the complainant were admitted by the opposite parties The conduct of the opposite parties then, on the other hand, was consistent with their obligations under the warranty and the car appears to have been taken back for further check-up in order to secure satisfaction of the complainant. The entire correspondence referred to above, lasted for a period of about one month. It was during that period that the opposite parties replied vide Annexure-J dated 19th May, 1997 that the car had been thoroughly inspected and found to be in perfect order. The nature of the defects alleged by the complainant is such that only an expert with the help of scientific instruments can determine whether the level of vibrations produced was within the limits of specifications. The complainant declined the offer to have the car inspected by a technically qualified person as noted in the order dated 28.1.1998. With regard to fuel consumption, the opposite party carried out the test for its own satisfaction on August 10,1997 and the result found was of 9.34 klms/litre in average city conditions in Delhi with AC on.

THE opposite parties invited the complainant vide Annexure-J dated 19th May, 1997, that in case he desired fuel consumption test to be carriedout in his presence, he may contact the Dealer, who would do the needful. Admittedly, the complainant did not agree to any such test being carried out in his presence.

THE complainant''s case cannot be accepted as proved on the basis of the so-called admissions or on the principle of res ipsa loquitor. Without the assistance of the expert or necessary tests being carried in an approved laboratory, it is not possible for us to hold that the level of vibration exceeded the permissible limits or that the car failed to give mileage as claimed in the owners'' Manual. The other part of the case relates to unfair trade practice. According to the complainant, it was incumbent on the manufacturer to have disclosed that the engine fitted in Opel Astra car had been manufactured by Holden Company of Australia and an entirely misleading representation had been made that the car was a marvellous example of German Engineering and Technology. If the complainant knew that the car was fitted with an engine manufactured by the Holden Company of Australia, he would not have bought the car. After careful consideration we are unable to accept the complainant''s contention. In our view, the matter of substance is the engineering and technology being German. Holden Company is a subsidiary of General Motors and the engine in question has been manufactured by the said company according to German technology and engineering. It is well known that various Multinational Companies operate on a global scale. They bring their technology and engineering and produce and manufacture various goods in other countries. The place where the goods are manufactured is not material. What is material is the technology used. From the material placed on record, there is no manner of doubt that the car in question has been manufactured by German technology. The case of Opel Astra is clearly distinguishable from that of the other cars instances of which have been mentioned by the complainant on the ground that those other cars instead of developing their own engines had used engines of other car manufacturers of repute and in order to cash on, the manufacturers not only disclosed but highlighted that the cars manufactured by them had an engine developed and manufactured by a reputed car manufacturer. For instance, Contessa Classic highlighted the fact that the engine used was Isuzu, a wellknown Japanese manufacturer. Padmini Premier, highlighted the fact that the engine used was developed by Nissan. As the engine used in the Opel Astra had been developed by German Engineers and the same was manufactured by their subsidiary according to the German Technology, it was not necessary for the manufacturer to have disclosed that the engine had been manufactured by Holden at Australia which was a subsidiary of General Motors.

The news item appearing in the Times of India dated 26.11.1997 that a quarter million Opel cars had been recently recalled in Germany does not advance the case of the complainant. A close reading of the news item, which was filed with additional affidavit of the complainant dated 27.11.1997 shows that defective parts of the engines were required to be replaced. It is settled law that unless proper evidence is led, anything appearing in newspaper is hear-say. In any case, what has happened to the cars in one country cannot be applied to cars manufactured in another country.

THIS brings us to a consideration of the circular Annexure-Z B issued by the manufacturer in September, 1997 recommending the use of an additive. The case of the opposite parties is that at the time of delivery of the car, two bottles of additive were given to the complainant implying that at that stage, the desirability of using the additive was brought to the notice of the buyer. The complainant denied knowledge of any such bottles having been delivered. It was argued that if the additive had been supplied at the time of delivery of the car in March, 1997, there was hardly any point in issuing the circular in Sept., 1997. The case of the manufacturer, on the other hand, is that every buyer of the Opel Astra is supplied with two bottles of additive at the time of delivery of the car and that having regard to quality of petrol available, it has been recommended that the fuel additive be used for obtaining optimum results. The manufacturer (opposite party-1) has placed on record an original Owners Manual relating to Maruti Esteem car and their subsequent letter dated 22.7.1996 regarding the use of additive in the petrol. We are, therefore, unable to hold that recommendations for the use of imported additive for obtaining optimum results is any indication of any defect in the car or that it amounts to unfair trade practice.

IT is unfortunate that the car is lying in the work-shop of the opposite party 2 since 25.6.1997. In the facts and circumstances of the case, we are constrained to hold that the car was allowed to remain in workshop by the complainant at his own risk and responsibility. In the peculiar facts of the case, we recommend the manufacturer to suitably extend the period of warranty by excluding the period from 1.6.1997 till one month from the date of this order. The parties shall bear their own costs. A copy of this order be conveyed to the parties. Orders passed. _____________