JUDGMENT DATED: 16.12.2021
PRESENT:
HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SRI.RANJIT. R : MEMBER
SMT. BEENA KUMARY. A : MEMBER
SRI. K.R. RADHAKRISHNAN : MEMBER
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COMPLAINANT:
Jaison Lukose, Chirayil Thomson Villa, Ettumanoor P.O., Kottayam-686 631. (By Adv. S. Reghukumar)
Vs.
OPPOSITE PARTIES:
Nissan Motors India Pvt. Ltd., ASV Ramana Towers, 37 & 38, Venkatnarayana Rd, T. Nagar-600 017.
1.
(By Adv. Narayan R.) Hover Automotive India Pvt. Ltd., Grande Palladium, 5thFloor, 'B' Wing, 175, CST Road, Kalina, Santacruz (East), Mumbai-400 098.
2.
EVM Automobiles Pvt. Ltd., XVI/139 E, INTUC Junction, Nettoor, Maradu, Cochin-682
040.
3.
(By Advs. R. Harikumar & S. Ajith)
JUDGMENT
HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
This is a complaint filed under Sec. 17 of the Consumer Protection Act, 1986, (hereinafter referred to as the Act for short) seeking compensation for the deficiency in service alleged against the opposite parties. The complainant has claimed refund of the amount that he had paid as the price of a vehicle purchased by him from the opposite parties. He has also claimed compensation.
2. The case of the complainant is that, he had purchased a Nissan X Trail vehicle for an amount of Rs. 28,00,000/- inclusive of registration fee, insurance, accessories etc. The vehicle is the one bearing Chassis No. JN 1 TN 131 B 3000620, Engine No. M9RD836C808649 and Registration No. KL-05 AD-02. The said vehicle was purchased on 23.06.2011 for the personal use of the complainant. The vehicle was covered by a warranty of 24 months or 50000 kms.
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whichever was earlier. The vehicle was manufactured by the 1stopposite party. The 2nd opposite party is their marketing and sales office and 3rdopposite party is the authorized dealer and service centre of the 1stopposite party in the State of Kerala.
3. According to the complainant, out of the sale price, an amount of Rs. 9,00,000/- was paid by the complainant as down payment and the balance amount was paid by Kotak Mahindra, his financier. The monthly instalment payable by the complainant to the financier towards repayment was Rs. 63,514/- and the period of repayment was 36 months.
4. The complainant alleges that the vehicle was not running smoothly, right from the inception. However, the staff members of the 3rdopposite party, to whom complaints were made, informed the complainant that the vehicle would run smoothly after completion of 10000 kms. Therefore the complainant waited.
5. While so, on 28.06.2011 the vehicle stopped abruptly when it had run just 780 kms, in the middle of a road. The incident was immediately reported to the 3rdopposite party who assured the complainant that they would send their technicians with a vehicle to tow the complainant's vehicle to the workshop on 29.06.2011. Later they refused and the complainant was forced to tow the vehicle to the 3rdopposite party's workshop on 30.06.2011. Consequently, the vehicle had to be left to remain on the road for one full day. Though the service engineers of the 3rd opposite party conducted a detailed examination of the vehicle, they could not identify any fault and therefore they returned the vehicle to the complainant. Though the said problem persisted even thereafter, the defect could not be rectified despite repeated complaints made to the 3rd opposite party. The complainant was being assured that the problems would subside when the vehicle was run for some time. However, the acceleration of the vehicle dropped drastically and the noise from the engine became louder and more prominent.
6. In the above circumstances, the vehicle came to an abrupt stop at 10947 kms. and the vehicle was taken to the workshop of the 3rdopposite party. The service engineer conducted a check- up, carried out some minor repairs to the engine and returned the vehicle. But, even after such repairs, the noise from the engine continued unabated.
7. On 27.09.2011 the vehicle came to an abrupt stop with a big sound from the engine at 11922 kms. and the vehicle was taken to the workshop of the 3rdopposite party. Though the service engineers of the 3rdopposite party again made a complete check up they could not ascertain the cause of the problem. Therefore, they removed the engine and other major parts of the vehicle and the vehicle is remaining in a dismantled condition in the 3rdopposite party's workshop, to this date.
8. According to the complainant, the brand new premium vehicle was purchased by him for Rs. 28,00,000/-. But, the vehicle could not be used by him because of the frequent troubles referred to above. It is stated that, the complainant had followed all the instructions given in the manual and had reported the complaints promptly to the 3rdopposite party. Despite the efforts of the service engineers of the 3rdopposite party, the defects could not be set right. While so, in the month of October 2011, the 3rdopposite party for the first time informed the complainant that the troubles of the vehicle were caused due to a defect in the cylinder assembly and therefore offered to change the cylinder assembly. Later on, the 3rdopposite party changed their stand and offered to change the engine of the vehicle admitting that the whole engine was defective.
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The vehicle had only plied about 11000 kms. . During the said period, the vehicle had to be taken for repairs to the 3rdopposite party, a number of times. The first complaint occurred when the vehicle had run just 780 kms. The defects persisted and could not be rectified by the service engineers of the 3rdopposite party. Since it has been admitted that the engine itself was defective, the complainant alleges that it is necessary to direct the opposite parties to return the amount of Rs. 28,00,000/- paid by him for purchase of the vehicle. According to him, he had suffered acute mental agony and distress at the manner in which an expensive vehicle purchased by him had failed to meet his expectations and was found to be defective and deficient. It is alleged that, he was paying the instalments on the loan that he had availed for purchasing the vehicle by making monthly remittances of Rs. 63,514/-, regularly. He also had to incur a lot of other expenses for his travel, for towing the vehicle to the workshop and other incidental requirements. Therefore he has claimed an amount of Rs. 10,00,000/- as compensation, in addition to the cost of the vehicle.
9. Separate versions have been filed by the 1stand 3rdopposite parties. According to the opposite parties, the vehicle does not suffer from any manufacturing defect as alleged in the complaint. According to the 1stopposite party, the vehicle is highly sophisticated and is of a technically high standard. The vehicles manufactured by the 1stopposite party have got wide market acceptance because of their perfection. The vehicles are Euro Four Standard and therefore the purity of fuel is a must for the use of the vehicle. The use of impure or contaminated fuel will cause engine trouble. It is alleged that, when the vehicle stopped at 780 kms. though the 3rdopposite party had offered to tow the vehicle to the workshop, the complainant did not agree and it was taken to the workshop by his driver who drove it along the road. When the vehicle was checked thoroughly it was found that the fuel used was of inferior quality and presence of kerosene was found in the fuel. The driver was informed of the same and he was advised to replace the fuel immediately by emptying the tank and filling the same with superior quality fuel. It is alleged that, during the subsequent service of the vehicle also, the quality of the fuel used was found to be inferior and adulterated. Therefore according to the 1stopposite party, the trouble to the engine was caused by the use of adulterated fuel. However, as a gesture of maintaining good customer relations, the 1stopposite party had offered to replace the engine with a new one and had air lifted an engine for such replacement, immediately. But, the complainant refused to accept the said course of action and has filed the present complaint suppressing the said fact. In view of the above, according to the 1stopposite party there has been no deficiency in service or unfair trade practice on the part of the 1st opposite party. Therefore, the 1stopposite party seeks dismissal of the complaint.
10. The 3rdopposite party has filed separate version putting forward more or less identical contentions. The 3rdopposite party also alleges that the fuel used by the complainant was found to be adulterated and therefore he had been advised to use only good quality fuel. In spite of the fact that the trouble to the vehicle was not caused due to any manufacturing defect, when the matter was reported to the 1stopposite party, as a gesture for maintaining good customer relationship, the 1stopposite agreed to replace the engine of the vehicle immediately. Accordingly, though an engine was airlifted and made available for such replacement, the complainant refused to accept the offer. According to the 3rdopposite party, the vehicle has been kept safely in proper condition in their workshop though the engine has been dismantled and retained separately. The 3rdopposite party has a further contention that the periodic service of the vehicle had not been conducted at the proper time by the complainant and that he had
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made ugly scenes at the workshop when he had visited the 3rdopposite party. It is the case of the opposite parties that, the warranty condition applicable to the vehicle stipulates only the replacement of a defective part. Since the engine is defective, they have offered to replace the engine with a new one. However, the complainant has refused to accept the offer. In view of the above, the complainant is not entitled to seek return of the price of the vehicle, as sought for in the complaint.
11. On the above pleadings, the parties went to trial. The complainant was examined as PW1 and Exts. A1 to A11 documents were marked on his side. On the side of the opposite parties, Exts. B1 to B5 documents were marked and DW1 was examined as witness. Ext. C1 report of inspection by the expert commissioner has also been marked. After completion of evidence, both parties addressed their arguments and the matter was heard elaborately.
12. The points that arise for consideration are the following:-
Whether there has been any deficiency in service on the part of the opposite parties?i. Whether the complainant is entitled to return of the price of the vehicle?ii. Whether the complainant is entitled to any compensation, as claimed?iii. Reliefs and costs?iv.
13. Points (i) to (iv):- All the points are considered together since they are all inter-related. It is not in dispute that the complainant had purchased a Nissan X Trail brand vehicle which is an expensive, premium vehicle manufactured by the 1stopposite party, bearing Reg. No. KL-05- AD-2 and the same was sold by the 3rdopposite party, the authorized dealer of the 1stopposite party. The case of the complainant is that, the vehicle had developed trouble and had broken down on the road, a number of times during the warranty period itself. The vehicle had to be towed to the workshop for repairs. Though the vehicle was subjected to thorough examination by the technicians of the 3rdopposite party, they were not able to ascertain or find out what the trouble was. Initially a warning light had appeared on the dashboard of the vehicle, the reason for which could not be identified. Later the pickup of the vehicle dropped and finally it broke down on the road. The efforts of the service engineers of the 3rdopposite party to set right matters did not succeed, as is evident from the documents produced in this case. Ext. A3 job card of the 3rdopposite party has recorded the complaint regarding the warning light for which, under the heading 'repair advice', it is recorded that, no defect was found. Ext. A4 again shows the customer's complaint regarding the warning light and lack of pulling power. The vehicle is seen to have been sent back with an advice to bring back the vehicle if the complaint persisted. Ext. A5 is a copy of the Dealer Technical Report (DTR No. ENC/0711/155 dated 29.09.2011) which contains the result of the checkup done by the service engineers of the 3rdopposite party. It is mentioned therein that the vehicle was found to be not going beyond 3000 RPM and that the pulling had come down with the DPF light on in the instrument panel, as per the complaint of the customer. According to the customer, after driving for some kilometers, the engine started giving abnormal engine noise similar to tappet noise and then the vehicle stopped. The vehicle had to be towed to the workshop. It is further stated that, the technicians had checked and found that abnormal sound was coming from the engine and that the warning light was 'on'. The inspection has concluded that the defect was due to the huge difference in the injector flow rate in the third cylinder of the engine. In view of the inherent defect in the cylinder, technical support has been requested for, in Ext. A5.
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14. It is clear from Ext. A5 that the engine of the car had a serious defect and that was the reason for the malfunction of the vehicle. Ext. A5 also proves that the allegations made by the complainant regarding the defects in the vehicle are well founded. The defect was of such a serious nature that the service engineers of the 3rdopposite party were not able to identify the reason for the defect or to repair and rectify the same. Ext. A6 repair history of the vehicle dated 09.11.2011 issued by the 3rdopposite party also mentions the defects referred to above. Ext. A7 is the copy of the letter of the 3rdopposite party offering to replace the engine. As per Ext. A8 letter dated 24.12.2011 the 3rdopposite party has also sought permission of the complainant to carry out the replacement. Therefore, it is clear that the vehicle purchased by the complainant was defective, as alleged by him.
15. An expert commissioner had been appointed from this Commission to conduct an examination of the vehicle and to submit a report in this case. After inspection, the expert has reported that, the injection rate to the all four injectors must be more or less same for a normal engine and this inherent problem of huge difference in the injection flow rate could be a substantial element contributing to the problem associated with the abnormal combustion process. The inherent weakness of the combustion operation is the prime reason for the clogging of the DPF and further excessive reloading of engine parts due to the misfiring leading to the complete premature failure of operation of the Vehicle. The said failure has occurred due to the inherent technical problem of the engine sublime in the integrated design to cause such a premature failure. The expert commissioner has in Ext. C1 report summarized his findings as follows:
1. The collapse of the vehicle due to the premature failure of the engine owing to the reasons stated above. Both parties have agreed to this point and no dispute prevailed on the incident of engine failure.
2. The said vehicle under investigation, NISSAN X TRAIL SLX MT is a product completely manufactured and assembled in fully automated production line in the factory at Japan (a foreign product) and then Imported to India as complete product for the supply to the customer through 2ndand 3rd opposite parties. The first opposite party does not have any assembling/ manufacturing plant for this particular type of vehicle in India. The complete reliability of performance can be ensured in an engine replacement only if the execution is done in a fully automated manufacturing plant.
3. The collapse of the engine in fact has made the vehicle completely out of service and since the engine is the prime mover of an automobile and any variations caused in this critical element shall affect the compatibility of performance to other critical components.
4. The premature failure of the engine caused due to the inherent technical problem in the combustion process in certain cylinders of the engine.
16. The expert commissioner has found above that the engine was suffering from an inherent defect. The expert has also noted that the Nissan X Trail being an expensive and premium vehicle completely manufactured and assembled in a fully automated production line in the factory at Japan and then imported to India as a complete product, a replacement of the engine by the 3rdopposite party, without the support of an assembling or manufacturing plant for
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undertaking the said task cannot be considered as reliable. Such engine replacement can be effective and reliability of performance could be ensured only if such replacement was done in a fully automated manufacturing plant. We find no reason to doubt the opinion of the expert on the above aspect.
17. It has been vehemently contended by the counsel appearing for the opposite parties that the defect in the engine was something that could be set right effectively and completely by replacing the engine itself. The 1stopposite party had readily agreed to replace the engine with a new one and had airlifted a new engine for the said purpose. Reliance is placed on the warranty condition to argue that, what is agreed in the warranty is only to replace a defective part. The engine being the defective part in this case, the complainant can claim only a replacement of the part that is defective and not for anything more. It is therefore contended that, no order directing return of the purchase price of the vehicle could be granted to the complainant.
18. The counsel for the complainant, on the other hand, points out that the engine of a vehicle is the most integral part of the vehicle. It is the engine that drives the vehicle. The engine has to synchronize with the body and the chassis as well as other parts of the vehicle, if peak performance is to be ensured. A premium vehicle is purchased by a customer spending huge amount expecting the vehicle to perform efficiently and without giving any trouble. It is the said expectation that has been shattered. The frequent repairs that were necessitated and the break downs that occurred to the vehicle have eroded the faith that the complainant had in the vehicle. According to the counsel, an engine cannot be considered to be a spare part that is required to be replaced. Since the defect in the engine is admitted, there is manufacturing defect in the vehicle justifying the claim of the complainant for the refund of its purchase price.
19. The fact that the Nissan X Trail is a premium vehicle is admitted by all parties. The price of Rs. 28,00,000/- paid for the vehicle in the year 2011 also indicates that the vehicle is a high end one. The purchaser of a luxurious vehicle, for that matter any vehicle, has a reasonable expectation regarding its quality and trouble free performance. A brand new vehicle is expected to perform well at least for a minimum period of 5 years. In this case the vehicle that was purchased by the complainant paying a huge amount, raised by availing a loan, had miserably failed to meet the expectations of the purchaser. When it had run just 780 kms, hardly a week after its purchase on 22.06.2011, the vehicle broke down in the middle of the road on 28.06.2011. The vehicle had to be towed to the workshop for repairs. Similar incidents of break down happened on various other subsequent dates also as evidenced by the job cards Exts. A3 and A4. Ext. A5 shows that the vehicle broke down again on 27.09.2011 when it had been used only for 11922 kms. Therefore, within the warranty period itself the vehicle was giving persistent trouble to the owner. Ext. A5 and the Commission Report Ext. C1 prove that the engine was defective. It is obviously for the said reason that the 1stopposite party offered to replace the entire engine with a new one. The question that arises is whether the replacement of the engine is sufficient to redress the grievances of the complainant. It is doubtful whether a replacement of the engine could rectify the defect that has been admittedly identified to be caused by an engine that is defective. The contention that the warranty condition stipulates only replacement of a defective part and therefore replacement of the engine is all that the complainant can aspire for, cannot be accepted. Replacement of a spare part can only have reference to one of the many parts that make up the motor vehicle. An engine is the heart of a vehicle as opined by the expert commissioner. The vehicle in this case is one that was built and
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assembled in a fully automated plant and imported to India as a fully manufactured product. What is contemplated by the warranty can be construed only as referring to a part of the engine of the motor car and cannot encompass the engine as a whole. It is evident from Ext. A5 that the defect found in the engine was with respect to the synchronization of one of the cylinders with the other two. That is the reason why, the 1stopposite party had offered to replace the engine itself. In this case the complainant had purchased the vehicle with great expectations and the dream of owning a premium vehicle, which has been shattered by the troubles that the vehicle had put him to. Therefore, the stand of the complainant in refusing to accept the replacement of the engine as a solution to his problems, cannot be found fault with. He is fully justified in being dissatisfied with the vehicle and insisting on a return of the amount paid by him as sale price of the vehicle.
20. In Controls and Switchgear Co. Ltd. Vs. Daimler Chrysler India Pvt. Ltd. & anr. IV (2007) CPJ 1(NC), the National commission had to consider the complaints against a Mercedes Benz car, one of the most luxurious brands in the market. The allegation was that the car gave rise to trouble within three months of the date of its purchase. After considering the plight of the consumer who had been saddled with such a defective vehicle the National Commission has held:
22. In the present case we can say without hesitation that if the car is defective, may be, on one or other count, but that would not give any satisfaction to the consumer who has spent large amount for its purchase. Non-replacement of the vehicle in these set of circumstances would tantamount to unfair trade practice.
On the above reasoning, it has been held by the National Commission that it was necessary for the manufacturer to replace the car with a new car of the same or similar model or in the alternative, to refund the purchase price thereof.
21. In Hyundai Motors India Ltd. Vs. Affiliated East West Press Pvt. Ltd. I (2008) CPJ 19 (NC), a brand new Accent car, which is also a luxury car was alleged to have started giving trouble within a short while of its purchase. The State Commission directed the entire cost of the vehicle to be returned after taking back the vehicle. The order was challenged before the National Commission contending that there was no manufacturing defect in the car and therefore the order directing return of the purchase price was without any justification and required to be set aside. The National Commission considered the contention and held as under:
27. In our opinion, from the admission made by the petitioner, it is clear that the vehicle had gone to them on several occasions for repairs. In our view there is no necessity for a new car to go to workshop 'on several occasions' for repairs within a short span of one year of its purchase.
Therefore, it was held that the consumer would not be satisfied with such a vehicle. In such cases, it is for the manufacturer to graciously replace the defective vehicle with a new one or to return the amount paid.
22. Maruti Suzuki (India) Ltd. Vs. Adulapuram Buchiraju & ors. III (2008) CPJ 119(NC). The above case related to complaints about a Maruti Esteem Car purchased by the
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complainant. The complaints were noticed within the warranty period. The dealer specifically admitted the defects and issued an estimated bill that the engine and gearbox were required to be replaced. It has been held that in the said circumstances, the consumer was left with no alternative but to seek replacement of the car.
23. Another case on the point is Tata Motors Ltd. & ors. Vs. Lachia Setty I(2008) CPJ 151 (NC). In the above case a Tata Indigo LX Euro vehicle was purchased by the complainant. Shortly after purchase, it was found that there was intolerable noise from the engine, defect in the clutch system and the gear box. In the said case also the National Commission has found that an order directing replacement of the vehicle or refund of the cost thereof with interest was fully justified.
24. In the light of the above precedents, it has to be held that the complaint in this case is fully justified. The purchaser of a luxury vehicle has in this case been saddled with a defective and troublesome vehicle which has given a lot of mental stress and agony to him by breaking down in the middle of the road, multiple times. The trouble that has been identified is a defect in the engine of the car. As can be seen from the above decisions, replacement of the vehicle or refund of the purchase price has been ordered in cases where there was intolerable noise from the engine, defect in the clutch system, gear box etc, all of which are different parts of an automobile engine. In the present case, the engine itself was defective. The engine constitutes the core unit of any vehicle. Replacement thereof by manual means by the dealer cannot be expected to solve the problem or to ensure that the vehicle would give peak performance to the satisfaction of the purchaser, especially since it is a premium vehicle. Therefore, the stand of the complainant in insisting on return of the price paid by him is fully justified. He is also entitled to be compensated for the mental agony and trouble to which he has been subjected to. In the result, this complaint is allowed as follows:
The Opposite parties are jointly and severally held liable and directed to pay to the complainant Rs. 28,00,000/- (Rupees Twenty Eight Lakhs only) being the price of the Nissan X Trail car purchased by him on 23.06.2011, with interest thereon @ 9% per annum from 12.04.2012, the date of filing this complaint, till the date of realization.
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The complainant shall in addition, be entitled to a compensation of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand only), with interest @ 9% per annum from the date of this judgment for the mental agony and trouble that he had to undergo by the action of the opposite parties in supplying him with a defective vehicle.
2.
The complainant shall also be entitled to the costs of this litigation, which is quantified and fixed at Rs. 50,000/-.
3.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
T.S.P. MOOSATH : JUDICIAL MEMBER
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RANJIT. R : MEMBER
BEENA KUMARY. A : MEMBER
K.R. RADHAKRISHNAN : MEMBER
jb
APPENDIX
I COMPLAINANT'S WITNESS:
PW1 - Jaison Lukose II COMPLAINANT'S EXHIBITS:
A1 - Copy of Certificate of Registration A2 - Copy of letter dated 30.06.2011 issued by Kotak Mahindra A3 - Copy of Vehicle Initial Inspection Sheet dated 30.06.2011 A4 - Copy of Vehicle Initial Inspection Sheet dated 24.08.2011 A5 - Copy of Dealer Technical Report dated 29.09.2011 A6 - Copy of vehicle repair history dated 09.11.2011 A7 - Copy of letter sent by EVM Automobiles Pvt. Ltd. A8 - Copy of letter sent by EVM Automobiles dated 24.12.2011 A9 -
Copy of mail dated 31.10.2011 from Hover Automotive India Pvt. Ltd.
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A10 - Copy of mail dated 01.11.2011 from Hover Automotive India Pvt. Ltd.
A11 - Copy of mail dated 01.11.2011 from Ghanashyam Pandit A11(a) -
Copy of mail dated 01.11.2011 from Hover Automotive India Pvt. Ltd.
III OPPOSITE PARTIES' WITNESS:
DW1 - Nybi E.A
IV OPPOSITE PARTIES' EXHIBITS:
B1 - Repair Order dated 06.07.2011
B2 - Satisfaction Note dated 09.09.2011
B3 - Repair Order dated 17.09.2011
B4 - Satisfaction Note dated 20.09.2011
B5 Warranty Information & Maintenance Booklet
V COURT EXHIBIT:
C1 - Commission Report
JUSTICE K. SURENDRA MOHAN : PRESIDENT
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T.S.P. MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
BEENA KUMARY. A : MEMBER
K.R. RADHAKRISHNAN : MEMBER
jb
[HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN]
PRESIDENT
[HON'BLE MR. SRI.T.S.P.MOOSATH]
JUDICIAL MEMBER
[ SRI.RANJIT.R]
MEMBER
[ SMT.BEENAKUMARI.A]
MEMBER
[ SRI.RADHAKRISHNAN.K.R]
MEMBER
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