DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  29^th   day of June 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                 Date of filing:  16/09/2014

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.133/2014)       

P.M.Raveendran,

S/o P.K.Madhavan (Late),

Managing Partner,  

Palakkad Surgical Industries,

Residing at Aathira,

Durga Lane, Palakakd.                         -        Complainant

    V/s

1. Authorised Person,

Geeyem Motors Pvt. Ltd.                                                 

N.H Bye Pass Road, VIII/1198,

Chandranagar, Palakkad.

2.  Authorised Person,

German Motors, Angadipuram,

Perinthalmanna.

3.  Authorised Person,

General Motors India Ltd,

Chevrolet Sales India Block –e,

Chandrapura Industrial Estate,

Halal 389 351,

District Panchmahals, Gujarat.            -        Opposite party

O R D E R

By Smt.Suma.K.P. Member

The case of the complainant is that on 30.03.2012 he had purchased an CHEVROLET CAPTIVA LTBS4 vehicle from the 2^nd opposite party, which was manufactured by the 3^rd opposite party for an on-road price of Rs.18,76,144/-. The 1^st opposite party is the authorised service centre of the 3^rd opposite party.  The complainant alleges that all periodical services were carried out in time as specified in the service manual provided by the manufacturer.  The 3^rd opposite party had initially provided a warranty for a period of 2 years or 50000 Kilo Meter which ever is earlier for the said vehicle.  After conducting 30000 Kilo Meter, the vehicle developed certain defects to its power steering system,  almost a year after it was purchased.  The vehicle was entrusted to the 1^st opposite party for rectifying the defect and the same was delivered back to the complainant after four days. The problem with the power steering pump recurred again and again though the said problem is claimed to have been rectified by the 1^st opposite party.  On finding that the vehicle’s mechanical problems are keeping on recurring complainant was advised by the 1^st opposite party to avail an extended warranty by paying a sum of Rs.16,100/-.  Accordingly complainant paid the amount and the said vehicle is stated to have been provided an extended warranty for the 3^rd and 4^th year/for an additional 50000 Kilo Meter after the standard warranty.  After completion of 39000 Kilo Meter another mechanical problem developed with the fly wheel and clutch the said vehicle had to be taken to the 1^st opposite party service centre and took 10 days to complete the repair works.  Even after repair the gear shift was clumsy making the drive tedious.  During February 2014, the problem regarding power steering recurred and the said vehicle had to be taken again to the 1^st opposite party on 17/02/2014 and was informed that the power steering pump is to be replaced.  The vehicle was delivered back on 26/02/2014 stating that the power steering pump stands replaced and the said problem is rectified.  The complainant alleges that the vehicle is having inherent manufacturing defects and he has filed the complaint seeking replacement of the vehicle with a brand new vehicle, which is road worthy, on failure to realise a sum of Rs.15,19,677/- (Fifteen Lakh nineteen thousand six hundred and seventy seven) being the present IDV of the said vehicle and the life time tax of Rs.2,81,422/- along with interest @ 12 % per annum and also to direct the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.1,00,000/- towards compensation for mental agony, hardship and monetary loss and to pay sum of Rs.25,000/- towards the cost of the above complaint. 

Complaint was admitted and notice was issued to the opposite parties for appearance.

          All the opposite parties entered appearance and filed their respective versions. 

          The 1^st opposite party contended that the averments in the complaint that the problem with the power steering pump recurred again and again and the allegation that the 1^st opposite party advice to avail an extended warranty for and amount of Rs.16,100/- on the finding that the said vehicle’s mechanical problem are keeping on recurring and that even after the replacement of fly wheel and clutch kit the gear kit was clumsy and making the drive tedious are all false and denied by the 1^st opposite party.  The 1^st opposite party adopts the contentions raised by the 3^rd opposite party.  The 1^st opposite party ascertained the cause of the complaint of the vehicle and replaced the requisite part on non chargeable basis and after rectifying the said defect the complainant took delivery of the vehicle with full satisfaction and whenever the complainant approached with difficulties the 1^st opposite party had rectified the problem and delivered the vehicle with full satisfaction.  But, the complainant had not approached the service centre for periodical servicing.  The complainant was using the vehicle for his business enrichment and had sold his vehicle to another person and he is using the same vehicle with full satisfaction and without any complaint.  There is no deficiency of service on the part of 1^st opposite party. 

          The 2^nd opposite party also contended that the complaint is not maintainable, as it is disclosed in the complaint that the complainant is a business man, it can be presumed that, the vehicle is purchased in connection with his business for a commercial purpose.  The complainant had purchase a CHEVRLOET CAPTIVA LTBS – 4 vehicle from the showroom of 2^nd opposite party on 30.03.2012.  The vehicles arriving in the showroom of the 2^nd opposite party are thoroughly inspected and kept for sale.  Any customer who is purchasing the vehicle is given amble opportunity to inspect the vehicle thoroughly and also for test driving the vehicle proposed to be purchased.  It is only after a full pledged free delivery inspection that the customer is deciding fully and finally to purchase the vehicle.  The complainant has absolutely no complaint about the vehicle during the free delivery inspection or immediately after the delivery of the vehicle.  The 2^nd opposite party had sold the vehicle to the complainant in the same condition as it was received from the manufacturer.  The vehicle of the complainant is having a warranty of 2 years or 50000 km’s of run, whichever is attained earlier.  Whether the complainant has avail an extended warranty for the vehicle is not known to the 2^nd opposite party.  The manner in which the vehicle has been used by the complainant is also not known and whether the warranty condition were complied by the complainant  in the matter of use and servicing the vehicle is also not known to the 2^nd opposite party.  Apart from the fact that the complainant has purchased the vehicle from the showroom of the 2^nd opposite party, the complainant has not availed any service for his vehicle from them.  There after a customer who is purchasing vehicles manufactured by the 3^rd opposite party is entitled to avail the services from any authorised service centers of the manufacturer.  Since the complainant had not approached the 2^nd opposite party for getting the services/repairs of this vehicle done, the 2^nd opposite party is not in a position to give the explanation as to the allegation contained in the complaint.  During the subsistence of the warranty, whatever problems to the vehicle, will be rectified free of cost under warranty condition, even the parts which are defective can be replaced under the terms of warranty.  Most of complaint alleged by the complainant in his complaint are due to the extensive use of the vehicle and have resulted from the wear and tear of the vehicle.  The complainant had no complaints regarding anything done by the 2^nd opposite party during course of the transaction or immediately thereafter.  There is absolutely no service deficiency from the part of 2^nd opposite party and the complainant is not eligible to get any of the relief claimed by him from the 2^nd opposite party. 

          The 3^rd opposite party denies all the allegations contained in the complaint and states that the above complaint is not maintainable.  The obligation under this new vehicle warranty is limited to the repair of the new motor vehicle at new charge by the CHEVROLET authorised retailer.  For parts replaced during such repair the same warranty applies until the end of the new vehicle warranty period as stipulated herein.  All warranty claims expire at the end of the warranty period as specified under clause 2.

          Liability of General Motors India Pvt. Ltd under this New vehicle warranty is limited to the value of the service, repairs/replacement of parts found to be defective within the warranty period.  Beyond service and for repairing defective parts in the vehicle, General Motors India Pvt. Ltd. does not undertake to replace the vehicle/or reimburse the purchaser by payment of any money in respect of the vehicle purchased by them.

          From the perusal of this warranty clause it is very clear that the warranty is limited to extend of the repair/rectify/replace of the defective fact, if any during the warranty period and in the present case the entire engine assembly of the vehicle in question has been changed, without taking a single penny from the complainant.  The 3^rd opposite party is bound by the warranty obligation only.  The 3^rd opposite party also states that the complainant has been using the vehicle for his business enrichment and there for the complaint is not maintainable.  The 3^rd opposite party denies that, the defect in the vehicle began to manifest by themselves making it no road worthy.  When the complainant reported the concern of rattling noise while turning the steering on 8^th July 2013, the 2^nd opposite party attended and rectifying the same by aligning the steering column shaft after which complainant took back delivery of the vehicle during completely satisfied with its overall performance.  If the mechanical problems were recurring, then the 1^st opposite party would not have advised the complainant to go for an extended warranty.  The 3^rd opposite party states that when the complainant reported the vehicle with the 1^st opposite party on 29/12/2013 with complaints of abnormal sounds from the engine compartments, they ascertain the cause for the same and fix the problem by replacing the requisite parts on non chargeable basis and after rectifying the said defect complainant took back delivery of the same.  As far as the complainants grievance that the 1^st opposite party has retained the vehicle for 10 days it is stated that, after the vehicle reported with them they had to necessarily diagnose the cause of the problem/defects after which orders have to be placed for replacement of spare with same is not available cross the counter, these aspects are beyond anyone control and the complaint need not make much out of the same.  

          The 3^rd opposite party also states that any vehicle given to such extent is bound to undergo wear and tear due to which minor hiccups would occur which the complainant is trying to blow out of proposition and while attending such complaint if in the considered opinion of the opposite party it is felt that replacement of spare is necessary they proceed to replace the same on cost free basis.  The 3^rd opposite party reliably understand from the 1^st opposite party in that when the complainant express certain difficulty with the steering during February 2014, the 1^st opposite party proceeded that to replace the steering from and fixed to the problem, after which the complainant except reporting the vehicle for periodical servicing has not approached their notified service centre with any specific complaints/grievance.  The 3^rd opposite party asserts that the vehicle by no stretch of imagination could be construed that its suffers from inherent manufacturing defect.  They further submits that the above complaint is only misconceived frivolous and vexatious and it has to be dismissed with exemplary costs.
          Complainant filed an application as IA 11/2015 to appoint an expert commissioner to inspect the vehicle and to identify the problems with regard to the vehicle.  Application was allowed and an expert commissioner was appointed.  The complainant submitted that as the vehicle was there at the authorised service centre at Ernakulam, he could not inspect the same and file a report.  Complainant also filed a replication for the above complaint stating that the vehicle was purchased by the complainant in his personal name and for his personal use.  Complainant is a Managing Partner of a partnership firm.  He had also stated that mechanical defects noted in the vehicle are not caused due to natural wear and tear as alleged by the 3^rd opposite party and in the same is due to inherent defects in the product.  Frequent breakdown, recurring of the same complaint even after rectifying the same all indicates the inherent manufacturing defects and attempt of the opposite parties is to wriggle out of their liability vide projecting the problems as normal and natural wear and tear.  In order to prove the inherent defects an expert commissioner was appointed based upon the application filed by the complainant. Subsequent to the appointment there was delay in getting a willing and qualified Commissioner and in the mean time the vehicle had to be handed over to the authorised service centre for repairs and by the time the expert commissioner was to appointed the vehicle had to be handed over to the authorised service centre as it has broke down totally.   The authorised service centre of the 3^rd opposite party at Ernakulam informed the complainant that the problem noted is due to some compression issue and that the engine had to be opened and that thought the vehicle is within the extended warranty period, he will have to pay for the consumable that may have to be replaced when re-assembling the engine.  It took about 52 days for the authorised service centre to identify and rectify the problem and the complainant was charged a sum of Rs.45,840/- for the repairs and the spare parts.  Even then the vehicle started showing complaints with its power steering and on 19/09/2015 the vehicle was again taken to 1^st opposite parties service centre for repairs.  Opposite parties filed additional version for the above replication. 

          Complainant filed affidavit along with documents.  2^nd Opposite party filed application as IA 396/15 seeking permission to cross examine complainant.  Since no counter was filed IA was allowed.  Complainant was examined as PW1.  Ext. A1 to A15 was marked.  Ext. A9, A12 & A15 was marked with objection.  3^rd Opposite party filed proof affidavit along with documents.  Complainant filed another application as IA 225/2016 seeking permission to cross examine opposite party 3.  Since no counter was filed IA was allowed.  Opposite party 3 was cross examined that DW 1.  Ext. B1 and B2 was marked with objection.  Evidence was closed and matter was heard.

  The following issues that arises for consideration are.

1.Whether the complainant is a consumer?

2.Whether the vehicle suffers from any manufacturing defects?

3.Whether there is any deficiency in service from the side of opposite parties ?

4.If so, what are the reliefs entitled to the complainant ?

Issue No 1

          The 3^rd opposite party states that the complainant has lost the title “consumer” because the vehicle has been sold to a 3^rd party i.e Sabith, S/o Chandran @ 5/427, Ammathumveetil, Thavanur, Ponnani, Malappuram.  Along with the proof affidavit filed by the 3^rd opposite party they had produced the vehicle history and the job sheet maintain by the authorised service centre which as marked as Ext. B2.  Our Hon’ble National Commission in RE HONDA CARS INDIA LTD VS JATHINDER SINGH MADAN & ANOTHER IV (2013) CPJ 258 NC & DCM LTD VS MAJOR R.D. GAIND (HUF) IV (2015) CPJ 516 (NC), has stated that the complainant pending complaint has sold the vehicle, the Forum without further deliberation can proceed to dismiss the complaint forthwith.  The complainant remains no more consumer under the Consumer Protection Act and is not entitled to any relief.  Perusal of copy of the job sheet and the vehicle history (Ext. B2) proves the fact of transfer of vehicle by complainant to one Mr.Sabith.  Complainant has no denied about the transfer of the vehicle.  We are not inclined to decide the aspect whether by taking the vehicle to authorised service centre 4 to 5 time would amount to manufacturing defects or not because the complainant ceases to be a consumer under the Consumer Protection Act and in such circumstances; complaint is liable to be dismissed on this sole count.  In the light of the above finding the further issues need not be looked into. 

          Consequently, complaint filed by the complainant is dismissed with no order as to cost.     

Pronounced in the open court on this the 29^th day of June 2017.

                                                                                                                               Sd/-

                    Shiny.P.R.

                      President 

                         Sd/-

                      Suma.K.P.

                      Member

                Sd/-

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1   –  Copy of lawyer notice dated. 19.03.2014  

Ext.A2   –  Postal Receipts No. RL863007435IN dated. 19.03.2014, RL863007554IN

               dated. 19.03.2014 & RL849293505IN dated. 22.03.2014

Ext.A3   –  By Registered Post Acknowledgment due dated. 10.04.2014

Ext.A4  -  Retail Invoice dated. 09.07.2013

Ext.A5           -  Complainant’s letter dated. 26.12.2014

Ext.A6 -   Retail Invoice No. 002593 dated. 06.01.2014

Ext.A7 -   Retail Invoice No. 003046 dated. 26.02.2014

Ext.A8 -   Retail Invoice No. 002348 dated. 03.01.2015

Ext.A9 -   Job card dated. 06.04.2015 (with objection)

Ext.A10-   Retail Invoice No.002468 dated. 27.05.2015

Ext.A11-   Retail Invoice No. 002528 dated. 28.05.2015

Ext.A12-   Job card dated. 05.08.2015 (with objection)  

Ext.A13-   Retail Invoice No. 003119 dated. 07.08.2015

Ext.A14-   Form 8 B-Retail Invoice MLP/V/470 dated. 31.03.2012

Ext.A15-   Copy of statement of loan account dated. 09.04.2012 (with objection)

Witness examined on the side of complainant

PW 1 – Raveendran.P.M

Exhibits marked on the side of Opposite parties

Ext. B1. Owner’s Mannual dated. (with objection)

Ext. B2. Job sheet (with objection)

Ext. B3. Registration Details No. KL – 09 - AC - 8200  

Witness examined on the side of opposite party

DW 1 - Mahesh Ravindran

Cost

 Nil