DOF.18.10.05

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the  20^th day of  May  2010

C.C.No.265/2005

M.Balan,

Surabhi,

Onden Road,

Azhikode.P.O.

 (Rep. by Adv.P.N.Nambiar)                                        Complainant

1. Maruthi Udyog Limited,

     Palam Gurgaon Road,

     Guargaon 122015

     Hariyana.

2. HAR CAR

Kannothumchal,Kannur.

  (Rep. by Adv.Babu Mandein)                                    Opposite party

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to replace the defective parts of the car and to pay

Rs.1, 52,000/- as compensation with interest and cost

The case of the complainant in brief are as follows: Complainant purchased one Omni van chassis number582905, Engine number 2506742 from the Maruthi  authorized dealer on 20.6.2003 with two year warranty at Har Car, Kannothumchal..

It is used for the regular use of the complainant while washing and cleaning the body of the vehicle he found a hole of 2 ½” diameters on the upper portion of the right side chassis near shock absorber. He hops that it was started to form one year before due to manufacturing defect. Now a crack has started towards lower side from this whole complainant took the van to M/s.Har car for replacement of the damaged chassis. It was verified by2nd opposite party on23.4.05 and told complainant that new parts will get from M/s.Maruti Udyog Ltd. Hariyana after 3 seeks. But no reply there after. Letter was written to Maruti dt. 18.8.05 but no reply. Complainant has suffered great mental agony, inconvenience and loss of prestige in front of others. Hence this complaint.

            In pursuance of notice opposite parties 1 and 2 entered appearance and filed version separately. What is contended by 1^st opposite party is as follows:

The alleged hole was not due to manufacturing defect. The service Engineer inspected the underbody of the vehicle and chassis and found that it was formed due to resting/corrosion. The 2^nd opposite party forwarded a report to this effect and 1^st opposite party advised 2^nd opposite party to carryout the repair free of charge under warranty as a special case despite the repairs are not covered under warranty The complainant was informed that the said corrosion has taken place due to sea shore effect and not duet o manufacturing defect. The complainant did not bring the vehicle to the workshop of 2nds opposite party for repair as advised in writing as well as follow up on telephone. A copy of report sent to complainant along with the letter. The 1^st opposite party is liable only as per clause 3 and 4. He is not liable for any repair or replacement of components which are not covered under warranty. The obligations are specific and limited as prescribed under manual and service booklet. The complaint is not entitled to replacement of chassis free or charge under warranty. The complaint is frivolous and vexatious. Hence to dismiss the complaint.

            The 2^nd opposite party contended that the alleged hole was not due to manufacturing defect. The service Engineer inspected the underbody of the vehicle and chassis and that it was due to rusting/corrosion. As such 2^nd opposite party contacted and thereby he was advised to carryout the repair free of charge under warranty as a special case despite the repairs are not covered under warranty. The said rusting was due to sea shore effect as the complainant is residing nearby sea shore. The matter was informed to complainant over phone and through letters that they are ready to repair the vehicle at free of cost as a special case. 2^nd opposite party is only a dealer and never responsible for any manufacturing defects, if any, caused to the vehicle. More over, the complainant is not entitled for repair and replacement of the components which are not covered under the warranty. The complaint is devoid of merit and hence to dismiss the complaint.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled to get the relief as prayed for?

3. Relief and cost.

            The evidence consists of oral evidence of PW1, CW1.DW1 and documentary evidence Ext.sA1 to A7 and Ext.C1, C2.

Issue Nos. 1 to 3

            Admittedly complainant purchased the Omni Van chassis No.582905, Engine No.2506742 from the Maruthi authorized dealer 2^nd opposite party on20.6.03 with two years warranty. The case of the complainant is that he found a hole of 2 ½” diameters on the upper portion of the right side chassis near shock absorber. According to him it was started 1 year before due to manufacturing defect and now a crack started towards lower side from this hole. It was taken to 2^nd opposite party for replacement of damaged chassis. 2^nd opposite party verified it and pacified that new parts will get from 1^st opposite party within three weeks. But there was no reply thereafter.

            The case of the 1^st opposite party is that the hole formed had not been due to manufacturing defect and complainant was informed that it was formed due to resting/corrosion. 2^nd opposite party raised the same contentions together with the contention that he is only an authorized dealer and not liable for manufacturing defect.

            Expert commission was appointed to inspect the property and Ext.C1 & C2 are the reports submitted by him. Expert commissioner in his report Ext.C1  four defects were found. They are as follows:

1.                          Rear right hand chassis broken in 35 cm length and 10 cm width near rear right hand side suspension mounting (that means right and chassis broken in to three pieces)

2.                          A hole of 9 cm x Ccm in rectangular shape on chassis near rear right hand side wheel

3.                          A crack of 10 cm length on chassis near rear left hand side wheel.

4.                          A hole of 5 cm length on right side running board.

Commissioner specifically stated in his report that “these defects are due to poor quality of materials, like tin sheets, used for the main parts of vehicle like chassis etc. Now the vehicle is in dangerous condition for running”.

2^nd opposite party filed objection to the commissioner report stating that he has not received any notice of inspection.  But commissioner has specifically written as part of his report that he inspected the vehicle on 7.4.08 after issuing notice to M/s.Har Car Kannur.  He has also written that they were not co-operated. Ext.A4 acknowledgement shows that communication has gone to the 2^nd opposite party by the expert commissioner. Moreover, commissioner CW1 has deposed in his cross examination that notices were issued to both sides at a time. There is no need to disbelieve the commissioner in this aspect. CW1 also deposed the details which he has written in his report Ext.C1& C2. He has deposed that “]cm-Xn-¡m-csâ hml-\-¯n\phole  I­Xv manufacturing  defect sIm­v D­m-b-Xm-sW-¶mWv Rm³ a\-Ên-em-¡n-bXp”. The report as well as his oral evidence he has made gives his opinion that the defect of the vehicle according to him is due to manufacturing defect. Opposite parties case is that their service Engineer has inspected the underbody of the vehicle and chassis was found deteriorated due to rusting/corrosion. But opposite party did not examine the concerned Engineer to prove their case. DW1 is not an expert. Opposite party No.2 contended that the chassis was found deteriorated due to rusting/corrosion. The burden of proof of this contention lies upon the shoulders of opposite party. But there is no serious attempt on the part of opposite parties to prove this aspect. 1^st opposite party has stated that the service Engineer had inspected the vehicle and forwarded a report to this effect. But the original report has not been produced and marked before the Forum. The Engineer has also not been examined since the opposite parties have-not taken sincere attempt to adduce evidence upon this aspect there is no meaning in raising such contention. Opposite party has failed to convince the Forum that defect of the vehicle caused due to corrosion. Thus this contention is not sustainable.

The opposite party was directed to produce two documents that is job cardNo.17067 dated 23.4.05. But opposite party produced computer copy of the job card as the original of the same is not traced out. The other document letter also was not produced. The justification is that the incident was in the year 2005 and now more than4 years have been lapsed hence the original of the same is misplaced. It cannot be ignored that the complaint was filed on 18.10.05. A company like that of opposite party in the usual course is expected to keep all the documents in connection with the subject mater of the compliant. 4 years is already lapsed is not a justification not to produce the documents since the complaint was filed 4 years back. Those documents are relevant and expected to produce in the early stage itself. Non production of documents seems to be suppression of real facts from the Forum.

            Opposite party has also contended that they have informed the complainant both by phone and by written letter that they were ready to repair the vehicle free of cost. Complainant denied it. Opposite party did not produce any evidence to prove that they have made such promise. Even the acknowledgement hasn’t produced to show that such a letter was sent. Complainant has produced Ext.A3 acknowledgement to prove that he had informed the 1^st opposite party the matter as such. He has also pleaded that no reply was sent by 1^st opposite party to his letter of information DT. 18.8.05. It was not denied by 1^st opposite party. If that be so that itself is a deficiency in service on the part of 1^st opposite party. No evidence produced by 1^st opposite party to show that the letter of complainant was replied. It can also be seen that the defect was reported within the period of warranty period. The vehicle was purchased on 20.6.03 and the vehicle on complaint verified by 2^nd opposite party on 23.4.05.

The commission report Ext.C1 & C2 and the oral evidence adduced by commissioner together with other available evidence on record proves that the defects of the vehicle has been caused due to manufacturing defect. Thus we are of openion that the opposite parties are liable for the replacement of the defective parts of the complainant’s vehicle and he is also entitled for compensation for an amount of rs.10, 000/- together with Rs.1000/- as cost of these proceedings. In case the replacement has not been carried out by the opposite parties within the prescribed time the complainant is entitled for the refund of the expense after carrying out the work. The issues 1 to 3 are found in favour of complainant.

            In the result, the complaint is allowed directing the opposite parties for replacement of defective parts of the vehicle of the complainant Omni van chassis No.582905, Engine No.2506742 within one month from the date of receipt of this order. It is further directed to pay Rs.10, 000 (Rupees Ten thousand only) as compensation together with Rs.2, 000/-(Rupees Two thousand only) as cost of this proceedings If the replacement has not been done within the prescribed time, complainant is at liberty to carry out the same at his convenience and to get the expenses refunded from opposite parties. Opposite parties 1 and 2 are jointly and severally liable to pay the amount. Complainant is allowed to execute the order after the expiry of 30 days as per the provisions of consumer protection Act.

                                  Sd/-                           Sd/-                             Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Invoice dt.20.6.03 issued by OP1.

A2.Warranty/serviceguidelines

A3 to A5. Postal AD cards

A6.Cash memodt.12.8.03  issued by OP

A7.Job  order card dt.24.12.03

Exhibits for the court

C1 & C2.Commission reports

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.Biju.P.V

Witness examined for the  court

CW1.James Mathew

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur