O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986 for getting a relief against the opposite parties.

                   2. The case of the complainant is stated as follows:  The petitioner purchased a Maruti Ritz Car on 14.09.2013 from the 1^st opposite party.  The vehicle delivered on 28.09.2013.  The said vehicle is having financial hypothecation from HDFC Bank, Pathanamthitta Branch.  The instalment to the bank is Rs.12,700/- per month for insurance amount as well as life tax he spent Rs.64,000/-.  According to the complainant, hardly after week there was an excessive emission of black smoke from the silencer of the vehicle as a result the dickey as well as right side body of the vehicle got darkened.  In spite of several complaints to the opposite parties 1 to 3, the technicians of the AVG Motors inspected the vehicle.  But they failed to trace out the exact problem.  At last, the petitioner registered a complaint by send e.mail to 4^th opposite party.  Subsequently 3^rd opposite party send e.mail on 20.05.2014 and inform that the muffler of the vehicle is to be replaced.  Though the petitioner was ready for that but the opposite party was reluctant to view a report regarding the works done.  On 20.05.2014 the complainant entrusted the vehicle to 2^nd opposite party.  According to the petitioner, he also failed to cure that defect of the vehicle.  Thereafter on 24.05.2014 the complainant issued a lawyer’s notice to AVG Motors, Pathanamthitta through this letter complainant demanding either to rectify the defect and returning with a proper report or to replace the vehicle.  The counsel appearing for the AVG Motors send reply notice to the complainant raising false allegation and hence he filed this complaint.  The complainant contended that the opposite parties are bound either cure the defect permanently or to replace the vehicle.  The acts of the opposite parties are clear deficiency of service.  The cause of action for this complaint arised on 20.05.2014, the date on which the petitioner approached the opposite parties 1 to 3 for redressing the above grievances.  The petitioner requested this Forum to direct the opposite parties to rectify the mechanical defect of the complainant’s vehicle permanently and return a detailed report of the work done in the vehicle.  If the defect is not rectified the complainant’s demand to replace his vehicle along with a compensation of Rs. 1 lakh.  The complainant filed this complaint along with documents this Forum peruse the complaint and the documents filed and issue notice to the opposite party for their appearance.

                   3. Opposite parties 1 to 4 appeared before the Forum and opposite parties 1 and 2 filed a version and opposite party 3 and 4 are also filed a separate version before this Forum.  The contention of opposite parties 1 and 2 are as follows:  The contention of opposite parties 1 and 2 carries two portions.  One is preliminary objection and the other is Para wise reply.  According to this opposite parties, the complainant has filed a frivolous and vexatious complaint on false allegations without any material on record.  The opposite parties have discharged their obligation as per the terms of warranty and as agreed at the time of sale.  According to this opposite parties the complainant failed to set out any specific allegation in the present complaint against this opposite party and this opposite parties does not fall under the provisions of the Act.  According to this opposite parties, the complaint is not maintainable and there is no deficiency in service or unfair trade practice, neglect, or default on the part of this opposite parties.  It is contended that this opposite parties are only responsible for providing warranty service.  The terms and conditions are integral part of sale contract and discharged their obligations.  Hence the complaint has to be dismissed.

                   4. In Para wise reply opposite parties 1 and 2 contended as follows:  According to them, the complainant to his entire satisfaction took the delivery of vehicle from opposite party 1.  There was no defect in the vehicle and the complainant is making extensive use of the vehicle.  The allegation of the complainant that the dickey of the back side of the body of the vehicle got darkened was not true.  According to the opposite parties 1 and 2, the complainant did not report any defect for his vehicle on 10.10.2013 at the time of the 1^st free service.  The problem of black smoke was reported at the workshop of opposite party 2 on 19.11.2013 at 6285 kms.  On 23.11.2013, in order to remove the apprehension of the complainant the emission test was carried out as per rules and road test was carried out in presence of the complainant.  At that time, the performance of the vehicle was found as per set standards and smoke below permissible limits.  It is contended that the certificate issued by the transport department was valid up to 22^nd May 2014 which itself substantiate no abnormal smoke emitted for the vehicle and defect free condition of the vehicle.  This opposite parties again submitted that at the time of obtaining paid service on 01.04.2014 at 20929 kms., the expert service engineer of the workshop did not observe any problem in the vehicle and it is found that it is careless, negligence, improper maintenance of the vehicle.  So this opposite parties vehemently submitted that there is no manufacturing defect for this vehicle.  It is emphatically denied that the complainant took the vehicle to opposite party 2 on 20.05.2014 or the service engineer of the workshop made any representation to the complainant.  According to this opposite parties, they neither observed any alleged problem nor there is any manufacturing defect in the vehicle.  According to this opposite parties, the complainant has abandoned the vehicle at the workshop and took the keys of the vehicle with him and filed this case to exert to them.  The act of the complainant are against the decision reported in 11(2009)CPJ 98 (NC) and IV(2009)CPJ 144 (NC).  It is further stated that warranty subject to terms and conditions and are integral part of sale contract and the complainant is bound by them.  According to them, there is a total non-cooperation on the part of the complainant and filing such false and frivolous case without any basis shows his malafide intention to obtain unjust gain.  According to them, there is no cause of action arised against this opposite parties and emphatically stated that if there has been any manufacturing defect, the vehicle in question would  not have plied for more than 21,000 kms. within 6 months of purchase.  Hence this opposite parties prayed that dismiss this complaint with cost against opposite parties 1 and 2.

                   5. The contention of opposite parties 3 and 4 are also stated as follows:  This opposite parties 3 and 4 also filed their version in two parts.  The 1^st part contains preliminary objections and 2^nd part contains Para wise reply.  As per the preliminary objections of this opposite parties, the complainant has filed a frivolous and vexatious complaint on false allegations without any material on record.  According to this opposite parties, their obligation is only for the warranty, which is part and parcel of the sale contract is specific as set out under the warranty policy Clause 3 as enumerated in the owner’s manual and service book let.  This opposite parties is not a necessary party for this proceedings.  Apart from this contention, this opposite parties cited a decision reported in CPJ 62 (1993) II (NC) and in the branch officer LIC of India Vs. Smt. Kanchanben H Shah.  This opposite parties contended that the complainant is making purposeful use of the vehicle and the vehicle is in defect free and road worthy condition.  The opposite parties further stated that they are only responsible for providing the warranty period of 2 years or 40000 kms. from the date of sale.  This warranty is also on the basis of the terms and condition and limitations as set out in the owner’s manual and service book let.  The opposite parties have discharged their obligations as agreed at the time of sale and the complainant has no cause of action against this opposite parties and the complaint is liable to be dismissed.  The opposite parties contended the Para wise reply is as follows:  According to this opposite parties, the complainant to his entire satisfaction took the delivery of the vehicle from the show room of 1^st opposite party.  It is stated that the complainant is making extensive use of the vehicle and wrongly alleged that the dickey or the back side of the body of the vehicle got darkened.  The complainant did not report the alleged problem at the time of obtaining 1^st free inspection service on 10.10.2013 at 1014 kms. at the workshop of the 2^nd opposite party.  According to them, on 19.11.2013 at 6285 kms. 2^nd opposite party inspected the vehicle with the help of expert service engineer even in the presence of the complainant and no abnormality was observed.  On 23.11.2013, in order remove the apprehension of the complainant, emission test was carried out as per the rules and road test was also carried out in the presence of the complainant and the vehicle was found as per standards and smoke below the permissible limit.  Again this opposite parties contended that on 28.12.2013 the territory service manager of this opposite parties inspected the vehicle at 10319 kms. and no abnormality was observed in the performance of the vehicle.  This opposite parties again contended that on 01.04.2014 at 20929 km., the expert service engineer of this opposite parties tested the vehicle and observe that there is no problem in the vehicle and normal service as per periodic maintenance schedule was carried out to the complainant’s entire satisfaction.  The complainant is wrongly alleged that the vehicle is having manufacturing defect and there is no pith and substance in the averments of the complainant on this aspect.  This opposite parties has undertaken to provide the warranty benefit within the period of the warranty and to repair/replace any component shown to be defective if it is acknowledged by the complainant.  They again submitted that the complainant has abandoned the vehicle at the workshop and took the keys of the vehicle and file this case to expert legal pressure upon this opposite parties.  The act of the complainant is not acceptable as per law.  He also cited a decision reported in II (2009) CPJ 98 (NC)in Premanchal Motors Vs. Ramdas & Another to substantiate his contention.  This opposite parties categorically contended that the complainant neither issued alleged legal notice to them nor the complainant allowed the workshop presence to attend the vehicle.  According to this opposite parties, there is no act of omission or commission on the part of them but on the other hand it is alleged that a total non-cooperation shown on the part of the complainant and filed this complaint with false and frivolous ground without any bonafide.  According to this opposite parties, if there is any mechanical complaint to this vehicle, the vehicle would not have plied for more than 21000 kms. within 6 months of its purchase.  They again submitted that this Forum has no territorial jurisdiction to entertain, try or to adjudicate upon this present matter in dispute.  Hence the complaint is liable to be dismissed in-limine.

                   6. On the basis of the pleadings of both sides and the records produced by the complainant, we raised the following issues for consideration.

1. Whether this complaint is maintainable before this Forum?
2. If it is maintainable the complaint is succeed to prove the deficiency in service of the opposite parties?
3. Regarding the relief and costs?

                  7. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of chief examination and marked Exts.A1 to A10.  Opposite parties 1 and 2 were cross-examined as PW1 and as per the request of the complainant the commission reports are also marked as Exts.C1 and C2 series.  The opposite parties herein are not adduced any oral evidence or they marked in exhibits on their side.  Ext.A1 is the invoice dated 14.09.2013 for Rs.5,46,088/- issued by AVG Motors to the complainant.  Ext.A2 (subject to proof) is the letter sent by the complainant to the opposite parties.  Ext.A3 (subject to proof) is the G.mail dated 29.4.2014.  Ext.A4 (subject to proof) is the G.mail dated 20.05.2014.  Ext.A5 series (subject to proof) are the photos.  Ext.A6 is the registered notice dated 24.05.2014 sent by the advocate to the 1^st opposite party.  Ext.A7 is the postal receipt of Ext.A6.  Ext.A8 is the acknowledgment card of Ext.A6.  Ext.A9 is the copy of job slip dated 14.11.2013.  Ext.A10 is the advocate notice sent by 1^st opposite party to 3^rd opposite party. Ext.C1 is the commission report prepared by the Motor Vehicle Inspector Aravind. S.  Ext.C1(a) series are the photos of the vehicle.   

          8. Point Nos.1 to 3:-  For the sake of convenience he would like to consider Point No.1 to 3 together.  The main contention of the opposite parties in this case is that this Forum has no jurisdiction to entertain this dispute.  As per Sec…………. of C.P. Act 1986 the available evidence before the Forum shows that the cause of action of this dispute is arised within the jurisdiction of this Forum.  Hence it is clear that the vehicle is purchased from the dealership of 1^st and 2^nd opposite parties at Pathanamthitta and the complainant entrusted the vehicle for service and for curing the alleged defect at the workshop of 2^nd opposite party at Pathanamthitta, it is a cogent and conclusive evidence to show that the complaint can be entertained before this Forum. Hence the issue No.1 is found in favour of the complainant.  The next question to be considered is whether the complainant is an affected party or an aggrieved party and if there is any deficiency in service on the part of this opposite parties.  According to this complainant as PW1 categorically stated that the defect of excessive emission of black smoke from the silencer of the vehicle has been detected even after preliminary service time.  Though this PW1 pointed out this defect to the authorized workshop persons they failed to detect the defect noted nor they failed to rectify the mistake.  The pleadings of 1^st and 2^nd opposite parties shows that the complainant (PW1) failed to intimate the alleged defect to this opposite parties and if there any defects as alleged it would have been found a place in the workshop records and owner’s book let.  But at the same time, the PW1

submitted that he informed the defect to the concerned in time but they are reluctant to rectify the defect in question and failed to note it in the service book.  When we peruse the version of opposite parties 3 and 4 it is interesting to see that though the opposite parties are tested the vehicle on 10.10.2013 at 1014 kms. on 19.11.2013 at 6285 km., on 28.12.2013 at 10319 kms and on 01.04.2014 at 20929 km.  the opposite parties did not observe any defect on the vehicle as alleged by the complainant.  If this opposite parties are pleads like this, it is their duty to prove that the vehicle in question has no defect as alleged by the complainant.  It is pertinent to see that 1^st and 2^nd opposite parties has a definite case that they are acting as per the terms and conditions laid down the warranty and there is no deficiency in service on their part as alleged by the complainant. 

                   9. In order to arrive a conclusion of true facts we have to rely the commission report filed by the expert commissioner as Ext.C1 and C2 series.  It is to be noticed that the commissioner inspected the vehicle after issuing notice to both sides.  Ext.C1 is the Commission Report and Ext.C1 series are the photographs taken by the commissioner at the time of inspection.  Ext.C1 the commissioner reported like this, “വാഹനത്തിൻറെ മഫ്ളറ് അതിനെ എൻജിൻ എക്സ്ഹോസ്റ്റ് പൈപ്പുമായി ബന്ധിക്കുന്ന കപ്ളിംഗ് മുറിഞ്ഞുമാറിയ നിലയിലായിരുന്നു. വാഹനത്തിൻറെ എൻജിനില്നിന്നും മഫ്ളറിലേക്കുള്ള എക്സ്ഹോസ്റ്റ് പൈപ്പ് ലൈൻ മുറിഞ്ഞ് വാഹനത്തിൻറെ പുറകിലെ ആക്സിലിനു മുകളില് തട്ടി നില്ക്കുകയായിരുന്നു” and again he deposed like this, “വാഹനത്തിൻറെ എക്സ്ഹോസ്റ്റ്  പൈപ്പിൻറെ മുറിഞ്ഞ അഗ്രഭാഗം തറയിലേക്കു തിരിഞ്ഞിരിക്കുന്നതിനാല് വാഹനത്തിൻറെ പുക മഫ്ളർ  വഴി അല്ലാതെ തന്നെ വാഹനത്തിൻറെ അടിഭാഗത്തേക്ക് മുഴുവൻ വ്യാപിക്കുന്നുണ്ട് ”. 

                10. On the basis of this clarification it is clear due to that the defect of the exhaust pipe the smokes spreads to the bottom portion of the vehicle.  It is to be noted that though the complainant filed an objection to the commission report, no steps taken for the examination of this commissioner to prove his objection.  On the other hand, the opposite parties marked this commission report through the complainant (PW1) at the time of their cross-examination.  We do admit that all this opposite parties has a definite case that the complainant abandoned the vehicle at the 2^nd opposite party’s workshop and he has taken the key of the vehicle and not allowed the 1^st and 2^nd opposite party to do any kind of maintenance on the vehicle.  According to the 1^st and 2^nd opposite parties, the said act of the complainant is a naked violation of law and the complainant has to pay demurrage of the vehicle to opposite parties 1 and 2.  But at the same time, the complainant has no case of abandoning the vehicle at 2^nd opposite party’s workshop as per his complaint as well as the deposition before the Forum.  When deciding the merit of this case the issue of abandonment of the vehicle at 2^nd opposite parties workshop is not so material.  When we peruse the version of 3^rd opposite party it is to see that in order to cure the emission of smoke the only alternative is to replace the muffler and exhaust pipelining.  It is come out in evidence that the complainant was ready to replace this two materials allow permission to subjects to the condition that the opposite parties may serve the details of the works done to the complainant.  It is to be inferred that this opposite parties 1 and 2 are somehow or other reluctant to give the details of the works done to the complainant. There is no evidence to substantiate the stand of 1^st and 2^nd opposite parties regarding the abandonment of the vehicle as stated earlier.  The 1^st and 2^nd opposite parties are failed to produce any material in record to show that the vehicle was abandoned in their workshop for so many months.  It has to be observed that though opposite parties 3 and 4 has a definite case to the effect that the vehicle in question is having no mechanical defect or having any excessive emission of black smoke alleged by the complainant, this opposite parties are also failed to substantiate their case before this Forum.

                   11.  It is pertinent to see that as per Ext.C1 photographs the smoke spread over the bottom of the vehicle is seen clearly.  In order to substantiate the allegation of the complainant, the photographs which is marked as Ext.C1 series are conclusive and cogent evidence in favour of the complainant.  The main question to be considered in this petition is whether the emission of the smoke as alleged by the complainant is true or not.  As far as we are concerned the complaint, the deposition of the complainant as PW1 and the commission report C1and C1(a) series are sufficient evidence to believe the case of the complainant.  Then the next question to be considered is, if the opposite parties are committed any deficiency in service for rectifying the alleged complaint of smoke emission of the said vehicle.  It is evident to see that the complainant have entrusted this vehicle for rectification before the concerned but they failed to cure the defect.  It is also come out in evidence that the complainant demanded the details of the work done to the vehicle but the persons concerned were reluctant to serve the details.  Anyway, the complainant has every right to rectify the defect from the opposite parties 1 and 2.  Regarding the question of maintainability which was raised by the opposite parties are also not sustainable.  Hence Point No.1 is found in favour of the complainant.

                   12.  In the light of the above finding, we found that the complainant is succeed to prove the deficiency in service of the opposite parties.  But at the same time, the compensation amount asked by the complainant is so excessive and the complainant is not succeed to place sufficient materials to prove his contention regarding exorbitant compensation.  It is an accepted fact to see that opposite party No.1 and 2 are the authorized service agent of opposite party 3 and 4.  As a responsible and reputed company opposite party 3 and 4 are highly responsible to look after the customers problem with regard to their products.  In this petition the complainant has not raised any contention with regard to the warranty.  Therefore that aspect has not been look into this case.  On the basis of the evidence before this Forum, we found that opposite parties 1 to 4 are jointly and severely liable for the deficiency in service caused to the complainant in this case.  Hence Point No.2 and 3 are found in favour of the complainant.

                   13.  In the result, we pass the following orders:

1. Opposite parties 1 and 2 are directed to rectify the defect of the smoke emission of the vehicle bearing No.KL-33E-8185 within 15 days of the receipt of this order and also allowed to realize reasonable cost for rectifying the defects.
2. Opposite parties 1 to 4 are directed to pay a compensation of Rs.25,000/- (Rupees Twenty five Thousand only) to the complainant within 15 days from the receipt of this order.  If the opposite parties 1 to 4 fails to pay the amount within the above time limit the complainant is also allowed to realize 10% interest from the date of order to its realization.
3. A cost of Rs.3,000/- (Rupees Three Thousand only) is also allowed to the complainant from the opposite parties 1 to 4 with an interest of 10% from the date of order to its realization.
4. The complainant is also directed to entrust the vehicle to workshop of opposite parties 1 and 2 within 15 days from the date of receipt of this order and the opposite parties 1 and 2 are directed to give an acknowledgment of this entrustment.

         Declared in the Open Forum on this the 30^th day of September, 2015. 

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                         (President)

Smt. K.P. Padmasree (Member – I)               :

Smt. Sheela Jacob (Member – II)                  :

Appendix:

Witness examined on the side of the complainant:

PW1  :  Shabeer Ali

Exhibits marked on the side of the complainant:

A1   :  Invoice dated 14.09.2013 for Rs.5,46,088/- issued by AVG Motors

          to the complainant. 

A2   :  Letter sent by the complainant to the opposite parties. 

A3   :  G.mail dated 29.4.2014. 

A4   :  G.mail dated 20.05.2014. 

A5 series : Photos of the vehicle. 

A6   :  Registered notice dated 24.05.2014 sent by the advocate to the

         1^st opposite party. 

A7   :  Postal receipt of Ext.A6. 

A8   :  Acknowledgment card of Ext.A6. 

A9   :  Copy of job slip dated 14.11.2013. 

A10 :  Advocate notice sent by 1^st opposite party to 3^rd opposite party.

Witness examined on the side of the opposite parties:  Nil

Exhibits marked on the side of the opposite parties:  Nil.

Court Witness:  Nil.

Court Exhibits:

C1  :  Commission Report

C1(a) series  :  Photos of the vehicle