Decided on September 04,2006

Premier Motor Garage Respondents


- (1.)THIS appeal has been filed against order dated 15.2.2006 passed by District Consumer Disputes Redressal Forum -I, U.T., Chandigarh in complaint case No. 8 of 2005. The contextual facts in brief are as under.
(2.)THE complaint was filed by Sh. Anil Kumar Jain averring therein (in para -1) that for day -to -day conduct of his business a Lancer Car Model GLI was purchased from OP No. 1/respondent No. 1 for total sum of Rs. 6,71,646 on 31.5.2001. The appellant/complainant has stated that the aforesaid Lancer Car was projected to be made of State of Art technology, quality and durability by the respondent No. 1 and also he was made to believe that its petrol consumption is very low and the average mileage given is 14 kms. per litre and he got influenced by above recommendations. The appellant/complainant has alleged that the car started giving trouble from the very beginning as it gave only 8 -9 kms. per litre as compared to 14 -15 km. stated at the time of sale. Further the vehicle developed major defects within three months of its purchase and same were brought to the notice of respondent No. 1/OP No. 1 at the time of service and the same had been rectified from time -to -time. It is also stated that the complainant had got the car serviced from respondent No. 1 within the specified mileage/period. At the time of first service after clocking 1919 kms. It started giving trouble in starting, its pickup was poor and something wrong went with the engine but the complainant was assured after general checkup that the car will run smoothly after second and third services. The second service done on 22.2.2002 after covering 8699 kms, and it was brought to the notice of OP No. 1/respondent that same troubles are persisting but he was again assured that after third service it will run satisfactorily. The appellant/complainant has averred that it was specifically brought to the notice of OP No. 1 that vehicle was consuming more engine oil, was omitting lot of smoke when the vehicle was taken to the hill station. The pickup was not satisfactory and frequent gears were required to be changed. The appellant/complainant has alleged that in spite of bringing the above stated facts to the notice of respondent No. 1/OP No. 1 at the time of both the services he was put off by the OP No. 1 on one or the other pretext. At the time of third service on 27.5.2003 after mileage of 18885 kms. respondent No. 1 was told that engine was giving lot of problems and required extensive repair but the respondent No. 1 changed the oil filter, fuel filter and engine oil but none of the problems conveyed by the complainant were rectified. In fact he was assured that engine is running in perfect condition and it will give satisfactory service in due course of time. The appellant has also alleged that the car continued to give problems to him in spite of having got third service done on 27.5.2003 within the prescribed warranty period of two years. The car continued to give problems in the running and finally in March, 2004 the engine got seized. The vehicle was brought to the workshop of respondent No. 1 where it was kept for 10 days, major repairs were undertaken for which an amount of Rs. 36,793 vide invoice bill No. 27 was paid. The appellant has alleged that he was made to pay this amount under duress and the same was paid under protest, as the vehicle was still under warranty period. The appellant complained to respondent No. 1 that the vehicle may develop same other problems but he was made to understand that henceforth the car will run smoothly as all the problems have been rectified by respondent No. 1. The appellant was further aggrieved due to the fact that in spite of having paid Rs. 36,793 on major repairs, at the time of third service, the engine seized again, after being repaired from OP No. 1 at 30998 kms. It seized again at 38000 kms which proves his point that after major repairs, the car could cover only 7000 kms. though it was guaranteed by the OPs that the same will be able to cover 2,00,000 kms. without any defect. The appellant/complainant has alleged that a defective car with defective engine has been sold to him and a written complaint was made on 8.5.2004 to respondent No. 1. In reply to which the respondent No. 1 denied having serviced the vehicle at 18885 kms. on 27.5.2003 and entire blame was shifted on the negligence of the appellant. The appellant has alleged that after the seizure of the engine, the complainant showed the car to M/s. Verma Motors and the Engineers working there opined that the engine needs complete overhauling for which an estimate of Rs. 47,000 was furnished vide the bill dated 3.1.2005 brought on record vide Annexure C -5. The appellant has alleged that defects in the engine were not rectified by the respondent No. 1 in spite of the vehicle being in the warranty period and the fact that he had brought the car for services within time and mileage. It is also being stated that M/s. Verma Motors have told the appellant that second cylinder of the engine was not working and for ascertaining the same, the appellant contacted Benz Autos, Sector 26, Chandigarh and the same garage has also stated the car to be suffering from same defect. In the relief clause, a prayer has been made for a direction to the OPs to replace the engine. A compensation of Rs. 4 lacs with interest @ 18% for mental agony and harassment suffered by him due to negligence and supply of defective car has been claimed. During the pendency of the complaint, a prayer was for a direction to replace the engine with a new one and also the respondents be directed to provide alternate transport to the complainant.
(3.)IN the reply filed on behalf of respondent No. 1 Mr. Mohit, proprietor, the preliminary objection taken is that the complaint is liable to be dismissed on the ground that vehicle in question has been purchased by the complainant for business purpose and not for personal use and even the delivery of the vehicle was taken under taxi quota. Hence, the complainant is not covered under the definition of consumer due to which the present complaint deserves to be dismissed. The appellant/complainant has failed to abide the terms and conditions of the warranty as he has not adhered to the stipulated terms and conditions and cannot lodge complaint of deficiency against the answering OP as the warranty lapses on violation of terms and conditions. It is further stated that the appellant/complainant has suppressed and concealed the material facts as his vehicle met with an accident and it was handed over for repairs on 28.5.2002, the copy of job card (Annexure R -1/2) shows that extensive repairs were carried to the car for which the amount of Rs. 2,46,513 was charged as the vehicle had suffered major accident. Due to this fact itself, the appellant/complainant is estopped from raising the plea of manufacturing defect. The complaint is also bad on account of the reason that certain facts have been mis -stated like that he was made to pay the bill under duress and the bill was paid to prevent an unpleasant situation, and it was paid in cash then and there. The answering OP has denied the receipt of any payment of Rs. 36,793, in fact the same amount has not been paid despite repeated visits. Consequent to which, a legal notice was served on him by the respondent No.1. The Annexure C -3 does not prove that the payment was received as the same is only an invoice and not a receipt as has been made out by the appellant/complainant. The allegations of appellant that car suffers from defect in the engine have been refuted and it is stated that perusal of the job card shows that no such complaint was intimated to them by the appellant. The job card also shows that allegations of low mileage have never been the grievance of the complainant and the low mileage cannot be ground of deficiency in service.
In reply on merits, it is stated that since in para 1 the complainant has admitted that vehicle has been purchased for business purpose he is not a consumer and present complaint is not maintainable. The allegations of low mileage , etc have been denied. It is also denied the vehicle has been giving trouble to the appellant from the very beginning as the job card demonstrates that no such grievance was made in the job card and no communication in this regard has ever been addressed by the appellant. The allegations are an afterthought for making a ground for the filing of complaint. It is stated that vehicle neither developed any major fault nor was brought to the notice of OP No. 1. The answering OPs also stated that the averment of the complainant that he availed the services within the satisfied period/mileage in terms of warranty are falsified in view of the admitted fact that first service was availed at 1919 kms and vehicle had covered 919 kms in excess of stipulated mileage. The defects in starting the vehicle as alleged have been denied for want of knowledge. It is stated that no assurance was given regarding vehicle giving satisfactory results after second and third services. The answering OP has further contended that second service was availed on 20.2.2002, eight months after sale which demonstrates that appellant is negligent in the maintenance and upkeep of the vehicle. The third service got done on 27.5.2003 after 23 months and 27 days from the sale of car though the stipulated period of 12 months is mentioned under the warranty. Hence, the appellant clearly having violated the terms of warranty, cannot allege deficiency or defects. The oil/fuel filter is required to be changed at the time of third service whereas the filter and engine oil is changed on second service. These items being consumable are not covered under warranty and the consumer is liable to pay for the same. At the time of third service, it was noticed that due to expiry of life span of engine oil, the damage has been caused to the engine and the complainant agreed to get the repair of the vehicle costing upto Rs. 40,000. The allegations that the defective car with defective engine have been sold are denied and it is stated that engine is in proper condition and defects if any have occurred, due to not having availed the service at requisite intervals. The estimate dated 3.1.2005 has been procured and the same bears the date 3.1.2005 and notice served upon the complaint also bears the same date. The contention of the appellant that vehicle is still covered under warranty conditions has been refuted on the ground that appellant is guilty of violations of the aforesaid warranty. The vehicle was bound to suffer some damage due to negligence and the complainant having got the vehicle serviced from unauthorized service stations. It is stated that in the nutshell the complaint is an attempt to avoid the payment of Rs. 36,793 which was raised vide invoice bill No. 27 dated 6.4.2004.

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