BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st MARCH 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 177/2012
(Admitted on 06.06.2012)
S. Gopal Shettigar,
Aged about 61 years,
S/o Late S.M. Shettigar,
Consultant in Real Estate and
Revenue Matters,
Door No. 2-2-44F, “Sriraksha”,
Shiribeedu, Bannanje,
Udupi-576 101. …….. COMPLAINANT
(Advocate for the Complainant: Sri. P.R. Bhandarkar)
VERSUS
1. M/s Maruthi Suzuki India Ltd.,
Regd. Office: 1, Nelson Mandela Road,
Vasant Kunj, New Delhi – 110070,
Rep. by its Managing Director.
2. M/s Maruthi Suzuki India Ltd.,
Regional office, South II,
204, 2nd Floor, Embassy Classic,
Vittal Mallya Road,
Bangalore-560 001,
Rep. by its Regional Manager.
3. M/s Abharan Motors (Pvt) Ltd.,
Authorised Maruthi Suzuki Dealer,
NH 17, Nittur,
Udupi-576 103,
Rep by its Managing Director.
……OPPOSITE PARTIES
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that he had purchased Maruti Ritz on 25.03.2010 from Opposite Party No. 3 who is the authorized dealer of Opposite Party No. 1 for Rs. 5,04,820/-(Rupees Five lakhs four thousand eight hundred and twenty only). In order to purchase the car the complainant availed a loan.
The complainant stated that the above said vehicle has inherent manufacturing defect in the front side glass and wind glass. The said defect was brought to the knowledge of Opposite Party No. 3 on 16.11.2010. It is stated that the front side glass and wind side glass are having manufacturing defect and the complainant noticed such defects and lodged a complaint and those class were replaced by new one and even after replacing of those glass the visibility was less and again complained to the opposite parties. It is stated that the above problem remained unsolved and the complainant got issued a legal notice dated 27.04.2011 to comply the demand made therein but, the opposite parties not complied. Hence the above complaint filed by the Complainant U/sec 12 of the Consumer Protection Act 1986 (herein after referred to as the act) seeking direction from this Forum to the opposite party to refund the cost of the vehicle along with interest and compensation and cost of the proceedings.
II. 1. Version notice served to the opposite parties No. 1 to 3 by R.P.A.D. The Opposite Parties appeared through their counsels filed separate versions.
The Opposite Party No. 1 and 2 stated that the Opposite Party No. 1 manufacturer does not sell any vehicle in favour of any individual customer under it’s invoice. The Opposite Party No. 2 sell vehicle to it’s dealers as interested sale under central sales. The dealer sell the vehicle to the customer under their own contract. The relationship between dealers and Opposite Party No. 1 are based on principal to principal basis and is governed by the dealership agreement. Opposite Party No. 3 cannot represent Opposite Party No. 1.
It is further stated that the Opposite Party No. 1 and 2 being the manufacturer of Maruti Suzuki range of vehicle stands warranty for a period of 24 months or 40000 kms whichever occur first. The complainant is bound to follow the guidelines and conditions for proper up keep and maintenance of vehicle. It is stated that complainant is neither qualified nor have expertise comment.
It is further stated that the complainant brought the vehicle at the work shop for obtaining 1st and 2nd free inspection service on 27.04.2010 and 28.09.2010. At that time, the complainant did not point out any problem nor any abnormality. Normal services was carried out. The complainant after services took delivery of vehicle to his entire satisfaction and without any protest. The vehicle in question is defect free and in perfect condition.
It is further stated that the complainant was not acquainted with procedure of driving the car during the rainy season. The complainant pointed out the alleged problem of moisture formation during night driving condition and cold season, which in fact is not defect but natural phenomenon. The complainant was educated and explained the simple steps / procedure to be taken. The formation of fog and mist on the windshield i.e. if there is a difference in inside the cabin temperatures and outside temperature, mist form on the windscreen of the car. This is what happened in the instant case and the same could have been due to natural phenomena wherein hot vapor and cold vapor come in contact which results in formation of water vapor or mist on the windscreen which can easily be removed by use of air conditioning settings enumerated in the owner’s Manual at page 5-5 and the simple steps are duly explained by the expert service engineer of the workshop to the complainant. The said moisture has to be removed by following the procedure by switching the air conditioner of the car and / or by manual cleaning. Hence, it is apparent that the vehicle in question is not having any kind of defect but the collection of mist is on account of the refusal and failure of the complainant to follow the procedure prescribed during the rainy season of cold weather denied the manufacturing defect and sought for dismissal of complaint.
The Opposite Party No. 3 stated that the vehicle has been purchased from them but there was no inherent manufacturing defect in front side of glass or otherwise. It is stated that the Maruthi Ritz vehicle provided with highly advanced AC units which requires the Settings of the same taking into consideration the temperature and humidity existing outside the vehicle as mentioned in the owner manual. Denied the entire allegations and prayed for dismissal of the complaint.
III. 1. In support of the complaint, S.Gopal Shettigar(CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and got marked Ex C-1 to C-25. One Naveen Kumar P.V.T., Surveyor and Loss Assessor, Udupi (RW-1) has been examined as RW-1 and document got marked as Court Document No.1. On behalf of Opposite Party one K.Nagaraj Kamath, Manager/Authorized Person of the Opposite Party (RW-1) filed counter affidavit and answered the interrogatories served on him.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that the opposite parties committed deficiency in service?
- Whether the complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i) : Affirmative
Point No. (ii) and (iii). As per the final order.
IV. 1. POINTS No. (i) TO (iii) :
The facts which are admitted is that the complainant purchased a Maruti Ritz bearing Regd. No.KA20 P1205 by the Opposite Party No.3 on 25.03.2010. It is also admitted fact that Complainant has availed loan of Rs.2,00,000/- from SBI in Udupi and the said vehicle hypothecated to the Bank.
The points are in dispute between the parties before this Fora is that the Complainant came up with the allegations that the Front side Glass and Windscreen Glass are having manufacturing defects. After the complaint those glasses replaced by new one. Even after replacing of those glasses the visibility was less as compared to the earlier glasses. As such once again the complainant lodged complaint with the Opposite Parties but the Opposite Parties not rectified the defects.
On the contrary, the Opposite Parties contended that the Complainant has failed to place any material records to substantiate that the Front side Glass and Windscreen Glass are having manufacturing defects.
On perusal of the oral as well as documentary available on records, we find that, on 14.12.2011 the Opposite Parties were replaced Windscreen Glass and Door Glasses of all sides free of cost under warranty. But the Opposite Parties contended that the first time the Complainant came up with the problem of mist formation on Front Windscreen in the month of November 2010. According to the Opposite Party the formation of moisture during night and cold season which in fact is not in defect but natural phenomenon. It is also contended that the Complainant was educated and explained the simple steps/procedure to be taken as and when required to remove the formation of mist due to condensation of moisture in the atmosphere. The formation of fog and mist on the windshield i.e. if there is difference inside the cabin temperature and outside temperature mist form on the windscreen of the car. This is what happened in the instant case. It is further contended that the same could have been due to natural phenomenon wherein hot vapor and cold vapor come in contact which results in formation of water vapor or mist on the windscreen which can easily removed by use of air condition setting enumerated in the Owner’s manual and denied the manufacturing defect.
On considering of rival contentions of the parties, the matter was referred to the expert who is an Automobile Engineer in TMA Pai Polytechnic College. The Expert so appointed had submitted his report and that report marked as Court Document No.1 and he has been cross examined by the Opposite Parties. The expert so appointed is an independent witness, wherein he observed as under
“Except rear windscreen glass bearing No.Sl.No.2, all other glasses were found defective producing glares / semi pitch reflection. This could possibly due to manufacturing defects.” And also opined that “all round glasses except rear windscreen glass causes unwarranted reflection and replacement of the same is absolutely required taking the passengers safety as prime.” The above observation made us very clear that all round glass except rear windscreen glass causes unwarranted reflection and replacement of the same is required taking the passengers safety and the glasses were found defective. There is no material evidence produced to controvert the expert opinion available on record by the Opposite Parties. In the absence of the same, we hold that the expert opinion clearly reveals that except the rear windscreen glass all other glass are found defect and the same are due to manufacturing defect as stated supra. When that being so, the Opposite Parties are liable to replace all the defective glasses in this case. In case if there is no manufacturing defects then the Opposite Parties should have produced expert opinion by referring the subject matter to any of the expert other than CW-2 in this case. No such attempt has been made by the Opposite Parties. Therefore the expert opinion holds good in this case.
Generally, if the goods are defective it is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the goods. As we know, the contract through dealer/service provider, privity of contract is with them. To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the goods sold by them in this case.
In view of the aforesaid reasons, we hold that except the rear wind glass, all other glasses are found defective, therefore the Opposite Parties are jointly and severally directed to replace the defective glasses and also pay damages of Rs.15,000/- to the complainant and further pay Rs.7,000/- as cost of the litigation expenses which includes fees paid to the expert by the complainant i.e. Rs.2,000/- within 30 days from the date of receipt of this order
In the light of the above, we pass the following:
ORDER
The complaint is allowed. The Opposite Parties jointly and severally shall replace all the glass of the doors and also pay damages of Rs.15,000/- to the complainant and further pay Rs.7,000/- as litigation expenses. Payment shall made within 30 days from the date of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No.1 to 3 are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of MARCH 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW-1 : S.Gopal Shettigar (Complainant)
Documents produced on behalf of the Complainant:
Ex. C1 : Photocopy of Receipt No.REC09005888 dated
25.03.2010 for Rs.5,04,820/-
Ex. C2 : Notarized copy of the Driving Licence of the
Complainant.
Ex. C3 : Notarised copy of the RC of the vehicle.
Ex. C4 : Photocopy of letter dated 16.11.2010 of the
complainant sent by the Speed Post to all the OPs.
Ex. C5 : Original Postal Receipt No.SP EK 715578721IN
Ex. C6: Original Postal Receipt No.SP EK 715578735IN
Ex. C7: Original Postal Receipt No.SP EK 715578749 IN
Ex. C8: Photocopy of the notice dated 14.12.2010 of the complainant.
Ex. C9: Original letter dated 11.02.2011 of OP No.1
Ex. C10: Photo copy of the notice dated 05.03.2011 of the complainant sent to all the OPs by Speed Post.
Ex. C11: Original Postal Receipt No.EK 709826469 IN
Ex. C12: Original Postal Receipt No.EK 709826319 IN
Ex. C13: Original Postal Receipt No.EK 709826305 IN
Ex. C14: Original Email dated 15.03.2011 of OP No.3
Ex. C15: Photocopy of the notice dated 31.03.2011 of the complainant.
Ex. C16: Original postal acknowledgement card
Ex. C17: Original postal acknowledgement card
Ex. C18: Original postal acknowledgement card
Ex. C19: Photocopy of the legal notice dated 27.04.2011.
Ex. C20: Original Postal Acknowledgement Card duly signed by Opposite Party No.1
Ex. C21: Original Postal Acknowledgement Card duly signed by Opposite Party No.2.
Ex. C22: Original Postal Acknowledgement Card duly signed by Opposite Party No.3.
Ex. C23: Original reply notice dated 20.05.2011.
Ex. C24: Original Postal envelope bearing the date as 24.05.2011.
Ex.C-25: Photocopy of the Email communication
Witnesses examined on behalf of the Opposite Party:
RW-1 : Naveen Kumar P.V.T., Surveyor and Loss
Assessor, Udupi
RW-2 : K.Nagaraj Kamath, Manager/Authorized Person of
the Opposite Party.
Documents produced on behalf of the Opposite Party:
NIL
Court Document marked
Court Document No.1 :Surveyor Report issued by Sri Naveen
Kumar P.V.T., Surveyor and Loss
Assessor
Dated: 31.03.2016. PRESIDENT
