2020(3) ALL MR (JOURNAL) 57
Delhi High Court

JUSTICE M. SHREESHA

Brijpal Singh Rathore Vs. Prem Motors Private Limited & Anr.

Revision Petition No.84 of 2019

1st November, 2019.

Petitioner Counsel: Ms. DEEPA CHACKO
Respondent Counsel: Mr. R.K. MISHRA, for Maruti Suzuki, Mr. ANJANEYA MISHRA
Act Name: Consumer Protection Act, 1986

HeadNote : Consumer Protection Act (1986), S.12 – Consumer complaint – Seeking refund of amount paid towards repairs of vehicle on account of engine seized from manufacturer and dealer – Complainant took additional warranty by paying amount for same – He brought vehicle for servicing wherein it was found that water pump was damaged – On date of service water pump was not available – Complainant had taken vehicle on assurance of dealer that he would inform as to when water pump part would be available – Contributory negligence on part of both sides – Since incident occurred in warranty period, complainant entitled for refund of amount from manufacturer but without interest – Dealer not liable to pay since warranty registration forms part of contract between manufacturer and owner. (Paras 14, 15, 16, 17, 18)

Section :
Section 12 Consumer Protection Act, 1986

Cases Cited :

JUDGEMENT

MRS. M. SHREESHA, MEMBER :- Challenge in these Revision Petitions No. 84 a d 85 of 2019 is to the common impugned order dated 26.09.2018, passed by the Rajasthan State Consumer Disputes Redressal Commission (in short “the State Commission”) in FA/1211/2017 and FA/1233/2017, preferred by Prime Motors Pvt. Ltd. (hereinafter referred to as “the Dealer”) and M/s Maruti Suzuki India Ltd. (hereinafter referred to as “the Manufacturer”), respectively. By the impugned order, the State Commission has allowed the Appeals preferred by the Dealer and the Manufacturer and set aside the order of the District Consumer Disputes Redressal Forum, Jaipur Second (in short “the District Forum”).

2. Briefly, put the facts relevant to the case are that the Complainant purchased a Maruti Swift Dezire Car on 25.02.2012, for which he was given an extended warranty up to 23.02.2016 or 80,000 kilometers, by charging an additional amount of 8,040. It is the Complainant’s case that routine service was conducted by the dealer on 11.02.2013, by charging an amount of 4,203/- and the following defects were point out:
“Water pump leakage, brake pad need to be changed, RH side mirror damage, bumper light not ok, all body dent and scratch and no wiper blade”

3. It is the Complainant’s case that the aforenoted defects were not rectified as the Dealer did not have the relevant spare parts and therefore the Complainant was asked to bring back his car and wait for the information from the service centre. On 13.02.2015, the Complainant was informed that the water pump to be fitted had arrived. The Complainant’s car on 20.02.2015, while returning from the Complainant’s village was broke down as the pump of the vehicle got jammed. The same was informed to the service centre and the vehicle was picked up by a crane and towed to the workshop on the same day. The Complainant left his vehicle and went on the next day i.e. 21.02.2015, but the service centre insisted that the Complainant sign his consent for the ‘paid service’. As the vehicle was within warranty period, the Complainant refused to do so and unable to bear the pressure, the Complainant took advise of his Counsel and got issued a legal notice on 02.03.2015, but received no response. The Dealer raised an estimate of 1,70,293/- for repairing the engine and pump. The vehicle was serviced and an amount of 1,65,777/- was paid by the Complainant and the receipt for the same dated 18.03.2015 was given. The Complainant sent the claim form to the Manufacturer on 19.03.2015 claiming under warranty an amount of 1,65,777/-, but there was no response.

4. It is averred by the Complainant that the Service Centre misinformed the Complainant and did not conduct the repairs completely on 11.02.2015, stating that the water pump was unavailable on MGA basis and advised the Complainant to use the vehicle carefully and he was forced to take delivery with the leaking water pump. It is pleaded that had the leaking water pump been repaired on that very day i.e. 11.02.2015, the incident would not have happened. Hence, the Complaint seeking refund of 1,65,777/- with interest, compensation and costs.

5. The Manufacturer filed its Written Version stating that the water pump is a vital part of the engine as it keeps the engine cool and any defective water pump may result in engine seizure. It is averred that the Complainant drove the vehicle from 46,147 kilometers to 47,507 kilometers (360 kilometres) with a defective water pump, even after communication on 13.02.2015, which is highly negligent of the Complainant and hence the repair and replacement of the engine do falls beyond the scope of the extended warranty and the Complainant cannot be allowed to take advantage of his own wrong and negligence. It is averred that from the job card dated 21.02.2015, it is evident that the Complainant had approved the estimate under his signature. It is further averred that the Complainant did not agree to leave the vehicle on 11.02.2015 due to paucity of time and therefore the Dealer had to handover the vehicle to the Complainant and hence there is no deficiency of service on their behalf.

6. The Dealer filed the Written Version denying all the allegations made in the Complaint while admitting the extended warranty given till 23.02.2016 or till 80,000 kilometers and that the vehicle was brought for service on 11.02.2015. It is denied that the Dealer informed the Complainant that the spare part was not available and forced the Complainant to take delivery of the car with the defective water pump. It is submitted that the Dealer informed the Complainant about the defective water pump and he was asked to leave the vehicle for one more day to check water pump leakage, but the Complainant took delivery of the vehicle stating that he has some urgent work and bring back the vehicle after two days. As the Complainant had not turned up even after two days, the Complainant was informed on 13.02.2015 for replacing the water pump, but the Complainant did not come. It is pleaded that there is no deficiency of service against them and sought dismissal of the Complaint.

7. The District Forum based on the evidence adduced, allowed the Complaint directing both the Dealer and the Manufacturer to pay an amount of 1,65,777/- with interest @ 9% p.a. from 02.03.2015 together with compensation of 5,000/- and costs of 5,000/-.

8. On Appeals preferred by both the Dealer and the Manufacturer, the State Commission, while allowing the Appeals observed as follows:
“There is no dispute about the fact that the vehicle was brought for regular service on 11.02.2015 and it is the recommendation of the appellant Prem Motors that with other damage the water pump have also leakage and it is also mentioned in the hob card that part is not in stock hence, it could be changed within 2-3 days. It is also the contention of the Prem Motors that leakage was very small and there was no problem in plying the vehicle in Jaipur. It is also not in dispute that the Complainant took the vehicle to Nawa which is about 160 km. from Jaipur and it is also rightly been contended by the appellant Prem Motors that due to leakage in water pump the temperature of the engine rise and vehicle was seized and as per warranty condition the appellants cannot be held liable for the defects caused by misuse or negligence of the complainant. It was within the knowledge of the complainant that water pump is having leakage inspite of this he took the vehicle to Nawa and inspiite of specific intimation of the appellant Prem Motors on 13.02.2015 that now water pump is available he has not cared to get it changed and further more even on 11.02.2015 the water pump could be changed from other service station situated at Jaipur or on way to Nawa. No manufacturing defect is shown by the complainant hence, the manufacturing company could not be held liable.
The appellant has rightly relied upon III (2015) CPJ 198 (NC) Ashwani Kumar Vs. Ford India Pvt. Ltd. where damage caused to the vehicle due to negligence of the owner and repudiation was found justified. In view of the above, the appellants cannot be held liable as the complainant himself was negligent.” (Emphasis supplied)

9. Learned Counsel appearing for the Manufacturer had vehemently argued that had the Complainant left the vehicle behind on 11.02.2015 and heeded the advice of the Dealer that the water pump is to be changed, the engine would not have seized. It was only on account of the negligence of the Complainant that the incident had taken place and therefore it cannot be covered under the warranty.

10. Learned Counsel contended that the Dealer had informed the Revision Petitioner to get the water pump replaced within two days and despite specific intimation given to the Complainant on 13.02.2015, the vehicle was not brought to the workshop and instead was driven for a distance of 360 kilometers to Nawa. As there was no manufacturing defect in the vehicle, the Manufacturer cannot be made liable and sought for dismissal of the Complaint against the Manufacturer.

11. Learned Counsel appearing for the Dealer vehemently argued that the Complainant did not bring the vehicle to the workshop despite informing the Complainant on 13.02.2015; that the water pump was available and to bring the vehicle for replacement of the water pump. The Complainant negligently drove the vehicle for a distance of 360 kilometres with the defective water pump, which aggravated the problem and led to seizure of the vehicle and for the negligence of the Complainant, the Dealer cannot be made liable.

12. Learned Counsel appearing for the Revision Petitioner/ Complainant contended that an additional amount of 6,040/- was paid towards extended warranty and the warranty was extended up to 23.02.2016 or 80,000 kilometres, whichever is earlier and the same is evidenced in the Invoice Cum Certificate of Extended Warranty Registration dated 25.02.2012, certified by the Dealer. For better understanding of the cas,e the relevant clause under the Extended Warranty Registration form & certificate of extended warranty registration is detailed as hereunder:
“The Extended warranty registration form & the certificate of extended warranty registration form a part of contract between Maruti and the owner of the extended warranty of the vehicle as per the details mentioned on the extended warranty certificate.”

13. Learned counsel appearing for the Complainant also drew our attention to the job card dated 11.02.2015, in which the following recommendations have been made:
“Water Pump Leakage, Brake Pad need to be changed, RH Side Mirror damage, Bumper Light not ok, all body dent & scratch, no Wiper Blade.”
At the cost of repetition, it is the Complainant’s case that though an amount of 4,300/- was paid, the water pump, was admittedly not replaced.

14. The only point for consideration here is whether the replacement of water pump on 11.02.2015 ought to have been done immediately by the Dealer and if the amount paid towards repairs on account of engine seizure has to be borne by the Complainant or is covered under warranty.

15. On a pointed query from the Bench with respect to the note on the job card that the water pump was found leaking and the customer was in a hurry and not ready to leave vehicle till all the parts were arranged, the Counsel appearing for the Complainant vehemently contended that this was interpolated and added later and that the observation made by the District Forum was correct.

16. The fact remains that as on the date of the service, the water pump was not available and the Complainant had taken the vehicle on the assurance of the Dealer that he would be informed as to when the water pump part would be available and he would bring the car to the workshop to get it repaired. It is also an admitted fact that the Complainant had taken an additional warranty and paid an amount of 8,040/-. In the peculiar facts and circumstances of the case, there appears to be contributory negligence on both sides, the Dealer without completing the service with respect to replacement of the water pump had delivered the car to the Complainant stating that he would be informed as and when the part would be made available, especially when it is their own case that the water pump is the most vital part of the engine and any defective water pump would result in engine seizure. The Complainant also ought not to have driven the car with the defective water pump. Though, I find force in the contention of the learned Counsel appearing for the Complainant that had the water pump been replaced on that very date, this engine seizure would not have happened, at the same time, at the cost of repetition, I observe that the Complainant ought not to have taken delivery of the vehicle at all without the service being completed.

17. Keeping in view the peculiar facts and circumstances, read with the admitted extended warranty for which an amount of 8,040/- was paid and that the said incident falls within the warranty period, I am of the considered view that the amount of 1,65,777/- be refunded to the Complainant and the order of the State Commission be set aside. Though, the District Forum has awarded interest @ 9% p.a., keeping in view the facts of the case, I find it a fit case not to award interest, to meet the end of justice costs of 10,000/- is being awarded and the interest awarded by the District Forum is set aside.

18. Addressing to the liability of the Dealer, based on the Warranty Registration Certificate, I am of the view that as the warranty registration forms a part of contract between the manufacturer and the owner of the extended warranty of the vehicle the liability is to be fastened on the manufacturer alone and the Dealer is not liable to pay the amount, which falls under warranty and hence, the Revision Petition No. 84 of 2018 preferred by the Complainant against the Dealer is dismissed.

19. For all the aforenoted reasons, Revision Petition No. 85 of 2019 is allowed and the order of the State Commission is set aside and the manufacturer is directed to refund the amount of 1,65,777/- together with costs of 10,000/- with four weeks from the date of receipt of a copy of this order.

Decision : Ordered accordingly.