ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging  manufacturing defect in the vehicle sold by O.P.No.3 in his favour and hence for replacement of the same with a new one of the same brand, along with road tax charges, registration charges and insurance charges and in the alternative  to return Rs.7,19,000/- being the value of the said car  bearing No. KA-05-MV-5607 along with interest at 18% per annum from 29.5.2017 till the payment of the entire amount along with road tax, insurance and registration charges and accessories charges, for damages of Rs.10,00,000/- towards  the inconvenience caused, hardship and mental agony undergone and for inconvenience caused to obtain other transport vehicles and for other reliefs as this forum deems fit under circumstances of this complaint. 

2.     The brief facts of the complaint are: Complainant was owning Maruti Suzuki RITZ car bearing No. KA-03-MW 9560 of 2010 model. The 3^rd OP advised him to exchange the same for Maruti Suzuki Swift VXI car  and hence he purchased the said car on 09.06.2017 by paying Rs.3,82,000/- by obtaining loan from the HDFC bank and the rest of the amount i.e. Rs.2,98,000/- by selling the Maruti Ritz vehicle and Rs.2,50,000/- as exchange bonus.  Rs.5,000/- was given as discount and further he paid Rs.14,000/- additionally to  accessories for the new car.

3.     It is contended that though O.P.No.3 assured him to deliver the new car within 15 days, he delivered the same on 09.06.2017 to perform pooja and after the pooja, the car was again given to OP.NO.3 for registration purpose and for fixing accessories worth Rs.14,000/- and actually he got the vehicle to his possession on 14.06.2017 evening. 

4.     It is further contended that when he took the car for driving on 15.06.2017 , 16,06.2017, 17.06.2017, it had some problem and there was some constant noise. It stopped on two or three occasions in the middle of the road. In view of this, the complainant took the car to O.P.no.3 on 18.06.2017 to get it repaired.  He was advised by OP.No.3 to bring the same on the next day. When he took the vehicle on 19.06.2017, OP.NO.3 retained the same with him and returned on 20.06.2017 stating that they have examined an inspected the vehicle and there is no problem with it. On 20.06.2017 when the vehicle was taken on road. The same problem persisted. Again he took the vehicle to OP.No.3 on 23.06.2017 to attend the said problem and he was advised by OP.No.3 to drive the said vehicle for another week and to bring back if the said problem continues.

5.     The same problem continued and noise became too loud when he started the car. Hence he handed over the same to OP.No.3 on 26.06.2017 and told that they would inform the return of the vehicle after repair.  OP.No.3 informed him that there was some manufacturing defect in the car and engine and other parts are not functioning properly and they have to carry the repair work as per the warranty and advised him to receive the vehicle after few days. When he approached OP.No.3 for the delivery of the vehicle, they went on postponing the same and hence the vehicle was not available to him for his use. 

6.     OP.No.2 is the zonal office of Maruti Suzuki India who manufactures the vehicle at OP.No.1 plant.  When the matter was not attended by OP.No.3, the same was informed to OP.No.2 along with the details and sought for exchanging the same with a new one. O.P.no.2 also did not respond to his request.  Even O.P.no.1 also though aware of the fact of manufacturing defect, did not respond to the request of getting the vehicle repaired properly and replacing the same with a new one. Number of calls made to OPs  have not at all yielded with required result.

7.     OP No.1 and 2 without properly examining the road worthiness of the vehicle have sold the same through O.P.no.3.  The dream of driving a new car has been shattered after taking the said vehicle. They himself and his family members have been made to undergo severe hardship and sufferance. Hence they had to make alternative arrangements by incurring huge expenses and OPs made them to run behind them causing mental trauma, physical harassment and loss of time and money. There is a manufacturing defect in the vehicle and there is deficiency in service on the part of OP No.3 as they have sold a vehicle which is not road worthy and having manufacturing defect and further OP.No.3 not attending to the problems and hence the complaint.

8.     Upon service of notice, O.P No.1 and 2 appeared before the Forum and filed their version. Whereas O.P.No.3 though served with notice remained absent for the reasons best known to him.

9.     In the version filed by O.P.No.1 and 2, it is contended that complainant is not a consumer, the forum cannot decide this complaint, it is a false and frivolous complainant filed and there is no cause of action and justification to file the complaint and also it is bad for mis-joinder of parties as they are neither pro forma parties nor necessary parties to the complaint.  There is no unfair trade practice or there is no deficiency in service on their part. The vehicle is covered with warranty as per the warranty issued as enumerated in the owners manual of service booklet. They are only responsible for providing warranty service within the warranty period i.e. two years from the date of sale or 40000 km whichever is earlier, and further the vehicle was serviced and the complainant was charged as per the terms and conditions of the warranty by OP.No.3. There is no deficiency in service on their part. 

10.   There is no cause of action against OP.No.1 and 2 and specific allegation made against them do not fall within the provisions Act. The complainant has not placed sufficient materials for the compensation he has claimed. It is an afterthought one and filed for undue gain by abusing the process of law.   The said vehicle was sold to the complainant.  The same was certified by FCOK and PDI at the time of selling the vehicle. After satisfying himself the complainant took the delivery of the vehicle from the showroom. It has a standard warranty for 24 months or for 40,000 km whichever is earlier and the complainant also obtained extended warranty up to 80,000 km or 4 years from the date of purchase. The benefit under the extended warranty depends on the terms and conditions and compliance of the same as per the instructions in the manual.

11.   Any deficiency in service in not repairing the vehicle properly pertaining to the dealership. O.P.No.1 and 2 do not sell the vehicle directly to the customers. The same being done through the dealer.  The relationship between them with OP No.3 is principle to principle and not principle and agent. This complaint filed is only to make unlawful gain.  There is no manufacturing defect in the vehicle and the allegation made is from far from truth. It is learnt that O.P.no.3 has sent many letters to the complainant to get the vehicle delivered.  There is no expert report regarding the manufacturing defect. Instead of getting the vehicle delivered, complainant filed this complaint.  The vehicle has been repaired properly and it is in good condition and ready for use. The vehicle was repaired and serviced as per the warranty. There is no deficiency in service or unfair trade practice. There is no omission or commission on their part.  There is no cause of action for the complaint and hence prayed the forum to dismiss the complaint.

12.   In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

                   1)   Whether the complainant has proved

     deficiency in service on the part of the

                      Opposite Parties?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

13.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:           Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

14.   Upon perusing the entire evidence, documents and records in this case, it becomes clear that Op.No.1 and 2 are the manufacturers of the vehicle Maruti Suzuki Swift VXI, that O.P.No.3 is their dealer through whom they have sold the car to the complainant. It is also not in dispute that the earlier vehicle belonging to the complainant i.e. KA-03-MW-9560 Maruti Suzuki Ritz was exchanged to purchase Maruti Suzuki Swift VXI. It is also not in dispute that the complainant paid the amount to the same and obtained the delivery of the car. The same has been registered in the name of the complainant and the registration no. is KA-05-MV-5607.

15.   Though it is pertinent to note here that, no expert report is placed to prove the manufacturing defect with the car sold in favour of the complainant, it is pertinent to note here that the vehicle was delivered to the complainant on 29.05.2017 and invoice was raised on 09.06.2017. In fact, it is the case of the complainant that the vehicle was handed over to him after registration on 14.06.2017.  The same was registered with the authorities and insured on 20.06.2017.

16.  When the vehicle had done 802 km, in the job card  column demand repairs – others, it is mentioned as PRF card relax, little free, and screen wash. First free service. The same vehicle was again handed over to OP.No.3 when the vehicle had done 869 km, wherein, it is mentioned as R/R (the abbreviation is not made known to the forum).  On 26.06.2017 when the vehicle has done on 923 km it is not clear from the documents produced as to for what problems the vehicle was handed over to OP.No.3. 

17.   The series of correspondence, the SMS’s clearly reveals that Op.No.3 has not carried out the repair work properly and even not informed the status of the vehicle.  Even the messages and emails written clearly shows that the vehicle is with the O.P.No.3 and the executives of O.P.No.3 have written letter to the complainant seeking his permission to repair or rectify the car since they were only permitted to receive the vehicle to their service station.  It is also mentioned there in that they were requested to replace the vehicle and not to repair the vehicle.

18.   It is also mentioned in the letter written by O.P.No.3 to the complainant that, they have received the consent from him for further repairs or rectification of problem as per MSIL warranty.  They have started the work in this regard and will try to make the vehicle ready to their level best. Till then to bear it and also offered a loaner car for mobility, but was denied by the complainant.  On 05.07.2017, through the email, it is mentioned that they are not able to proceed with diagnosis process due to consent received by him and requested him to provide consent to carried out the repair work.

19.   When all these correspondence are taken into consideration, according to O.P.3, it is a new vehicle sold to the complainant manufactured by O.P.No.1 and 2. It ought to have undergone the quality test by O.P. The same has not been produced. Further documents to show that it has passed the quality and certification from the concerned authorities is also not produced. It is pertinent to note here that that the new vehicle manufactured by O.P Company should not have a problem within a span of three days to fifteen days and as per the records, it has visited the garage of O.P.no.3 three or four times within the said fifteen days. If at all there were some minor adjustments and defects, O.P.No.3 would have attended immediately and would not have sought the permission to carry on the repair unless the said vehicle was having major defects including the manufacturing defect in the vehicle and also of the engine.  The permission sought by O.P.No.3 to the complainant clearly reveals that there might have been a major problem with the engine and hence they have sought permission of the complainant to get it repaired.

20. In the letter dated 5.12.2018, O.P.No.3 has written to the complainant stating that:-

“We will perform the determined jobs only. However, in absence of your authorization, we will not be responsible or liable for any malfunction or under performance of the said vehicle. Due to the repair jobs or replacement of parts not authorized by you.”

21.   When this is taken into consideration, it becomes clear that O.P.no.3 has sold to complainant the car having some major manufacturing defect. Otherwise, a new vehicle which was sold to the complainant could not have returned to the garage 3 to 4 times within 15 days, and would not require replacement of the parts and repair work.  In view of this, in the absence of expert opinion and report regarding the manufacturing defect, this Forum has good reason to believe from the above letter that the said vehicle was having manufacturing defect which O.p.No.3  failed to identify and repair it inspite of the vehicle is within the warranty period.  Hence we are of the opinion that there is some manufacturing defect in the vehicle that the same has not been attended properly and hence there is deficiency in service and also unfair trade practice by O.P.No.3 in selling a defective vehicle to the complainant in exchange of his earlier vehicle. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

22.   Neither the complainant nor the O.Ps have produced the warranty document or the extended warranty document.  Further O.p.No.3 has also not specified as to which part of the vehicle has to be replaced.  For a dealer having put in service of several years, it may not be difficult  to identify the defect in the vehicle and rectify the same.

23.   In view of our answer to Point No.1 in the affirmative, the complainant is entitle for the replacement of the vehicle of the same model with usual appended warranties. In view of not getting the vehicle repaired by O.p.no.3, and the very lethargic attitude of O.P.No.1 and 2 in getting the matter solved, the complainant was forced to file this complaint before this forum.  Before filing this complaint, he has brought the problem to the knowledge of O.p.No.1,2 and 3 by writing emails for which there was no response at all from them.  Had O.P.NO.1 and 2 taken initiation and persuaded with the complainant and O.P.No.3., this matter could have been settled. The adamant attitude of the O.P.No.1 to 3 made the complainant to suffer mentally, physically, financially and emotionally for which, O.P.No.1 to 3 are bound to compensate. 

24.         In view of this, we are of the opinion that, if a sum of Rs.50,000/- towards compensation for the above and Rs.10,000/- towards litigation expenses if awarded in addition to replacing the present vehicle with a new one along with its registration charges and insurance for first year would meet the ends of justice. Hence we answer Point No.2 Partly in the Affirmative and pass the following:-

ORDER

1. The Complaint is allowed in part with cost.

2. OP No.1 to 3 are jointly and severally are hereby directed to replace the vehicle Maruti Suzuki Swift VXI (O) BS-IV Petrol bearing No.KA-05- MV-5607 with a new vehicle of the same specification, along with the accessories that was provided to the earlier vehicle within 30 days from the date on which O.P.No.1 to 3 receive this order. Failing which, O.P.No.1 to 3 are directed to pay Rs.7,10,000/- to the complainant along with interest at the rate of 12% per annum from 13.07.2017 the day of filing of this complaint till payment of the entire amount.

3.  In case the complainant has been provided with a new car as ordered above, O.P.No.3 is hereby directed to bear the registration charges, road tax for the said vehicle and insurance for the said vehicle for the first year. In case in view of the changing rules for providing insurance for more than one year, complainant is directed to bear the policy premium for the remaining years.

4.  In case of O.P.No.1 to 3 failed to replace the vehicle as ordered, in addition to paying Rs.7,10,000/- being the cost of the vehicle/car along with the interest at12% per annum to the complainant, O.P.No.3 further directed to pay to the complainant the insurance premium for one year, the road tax and the registration charges for the new vehicle.

5.  O.P. No.1 to 3 are jointly and severally held liable for the payment of Rs.50,000/- towards damages and Rs.10,000/- towards litigations to the complainant.

6. The O.Ps are here by directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

7. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 26^th FEBRUARY 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Annexure-C1: Evaluation of car dated 27.04.2017

Annexure-C2: Delivery Receipt dated 29.04.2017.

Annexure-C3: Retail Invoice dated 09.06.2017.

Annexure-C4:Delivery order dated 29.05.2017

Annexure-C5: Copy of the e-Payment receipt (fees/tax) dated 14.06.2017

Annexure-C6:Copy of the certificate cum policy schedule.

Annexure-C7:Copy of the Account description.

Annexure-C8: Job Card retail Invoice dated 22.01.2016.

Annexure-C9: Tax Invoice dated 22.01.2016.

Annexure-C10: Demanded repairs & Job Instruction capturing sheet issued by Kataria Automobiles Pvt. Ltd.

Annexure-C11:Copies of SMS/MMS details.

Annexure-C12: Copy of email transactions.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Siva Kumar, Territory Service Manager of OP No.1 & 2.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of warranty policy.

MEMBER                        PRESIDENT

A*