KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 328/2012

JUDGMENT DATED : 19.12.12

PRESENT

SHRI. M.K. ABDULLA SONA                          : HON. MEMBER

APPELLANTS

1.     Hindustan Motors, Automobile Division, Hugly District, West Bengal, Represented by Chairman

2.     Divisional  Manager, Hindustan Motors, Automobile Division Hugly District, West Bengal

3.     Jayaprasad, Territory Manager, Hindustan Motors, NH Bye pass, Palarivattom, Kochi – 25.

(Rep. by Sri.Adv. K. Joseph & others.)

Vs

RESPONDENT

1.          M/s. Chinmaya International Foundation, Adi. Sankara Nilayam, Veliyanad, Edakkattuvayal, Ernakulam, Rep. by its Chief Sevak, Shanta Balakrishnan,

2.          Geo Motors, Automobile Division, Hugly District, West Bangal, Represented by its General Manager.

3.          Sales Manager, GEO Motors,  N H Bye Pass Vyttila. Kochi.

(R1 Rep. by Adv.Sri.  S. Reghukumar )

               (R2 & R3 Rep. by Smt. Adv. P.K. Santhamma & others)

JUDGMENT

SHRI. M.K. ABDULLA SONA    : HON. MEMBER

This appeal prefers from the order passed by the CDRF, Ernakulam in C.C. No. 651.09  The appellants are the opposite parties 1,2,3 and the respondents are the 4^th and 5^th  opposite party and the complainant respectively.  The appellant prefers this appeal under the direction of the Forum below that the opposite party 1,2,3 are the manufacturers of the vehicle shall jointly and severally replace the disputed car with a new one of the same according to the choices of the complainant with fresh warranty.  The difference in cost being allowed.  The complainant is direct to return the defective car to the opposite parties 1 to 3 simultaneously.  In short the first appellant is company having its registered office at Culcutta and the first respondent is the complainant.  The complainant is conducted institution placed an order to the 4^th opposite party to purchase an ambassador car on 22.8.2007 .  According to the complainant on 5.9.2007 the complainant took delivery of the car and later it was registered as  KL39/9428 immediately on delivery of the vehicle so many technical defects started to develop and the complainant had to sent the vehicle for servicing on 8.10.2007, 20.11.2007, 20.2.2008.  The 4^th opposite party levied service charges from the complainant.  Thereafter the complainant  had to approach the 4^th  opposite party for the rectification of defects of the vehicle.  So the complainant requested the 4^th opposite party to replace the defective vehicle with a new one  and also requested to provide stand by vehicle to the complainant.  The complainant has to issued a lawyer notice to the 4^th opposite party to replace the defective vehicle with a new one and also requested to provide stand by vehicle to the complainant till then but in vain.  The complainant caused to issue the lawyer notice to the 4^th opposite party to replace the defective vehicle with a new one and also requested to proved stand by vehicle to the complainant.  The opposite parties assured to rectify all the defects of the vehicle to the satisfaction of the complainant on 24.4.2008. Again the very same defects persisted.  The complainant had to spend more than

Rs. 35,000/- to make the vehicle for running worthy.  The complainant is entitled to recover the total price of the vehicle together with the amounts, expenses for servicing and replacing of spare parts.  Thus the complainant is before the forum below seeking the reliefs put in the complaint.  Hence the complaint.

2.  The 1^st to 3^rd opposite parties filed their written version and contended that the complainant has failed to prove any manufacturing defect in the car in question or any deficiency in service on the part of the opposite parties 1 to 3.  The complainant is not a consumer as per the Section 2(1) (d) of the Consumer Protection Act and the vehicle was purchased for a commercial purpose. The opposite parties 1 to 3 have provided warranty for the vehicle for 16000Kms  or 12 months from the date of which a new car is delivered to the first owner.  The warranty of the car in dispute which expired on 7.5.08  as the audiometer reading shows 16109Kms.  All the defects noticed in the complaint are minor in nature and related to normal maintenance and service.  A team of the opposite parties inspected the vehicle and the entire defects were rectified to the satisfaction of the complainant on 24.4.08.  There is no deficiency in service on the part of the opposite parties 1 to 3 and the complainant is not entitled to get any of the reliefs  sought for.  The parts which are not guaranteed by the manufacturer were charged by the 4^th opposite party.  The vehicle was promptly and keenly attended to repair the utmost satisfaction of the complainant whenever it was prayed for servicing.  The satisfaction was recorded by the complainant in the job card while taking back the car.  There is no sort of unfair trade practice as stated by the complainant on the part of the 5^th opposite party. 

          3.  The evidence consisted of oral testimony of the authorized agent of the complainant examined as Pw1 and marked Ext. A1 to A26.  The witness for the opposite parties examined as Dw1 and marked Ext. B1 to B8 and another witness was examined for the 4^th and 5^th opposite party as Dw2 and marked B9 to B18.  The complainant and the 4^th and 5^th opposite parties filed their argument note before the forum below.  The forum below heard both sides and discussed the entire evidence adduced by both parties before the forum below and found that there is a deficiency in service and unfair trade practice from the part of the opposite parties 1 to 3.  It found that the vehicle sold by the 1^st  2^nd & 3^rd  opposite parties to the complainant is having a manufacturing defect.  For the finding of the Forum below they relied a decision “ N achiket P Shirgaonkar Vs Pandit Automotive Ltd. (2008) (2)( CPR 369(CP) and another decision of the Supreme court “ Sikka Pupers Ltd. Vs National Insurance Company and others(2009)CPJ (706) SC.  The Forum below passed the above impugned order and the appellant prefers this appeal from this order before this commission.  On this day this appeal came before this Commission for final hearing;  the counsel for the appellant and the counsel for the respondent/complainant are argued their own case vehemently before this commission.  The counsel for the appellant argued on the basis of the grounds of appeal memorandum that the alleged defects in the complaint is very minor and  it already rectified.  It is the burden of the complainant to prove the manufacturing defects through any expert.  The counsel argued that there is no situation to shift the burden to prove that the alleged manufacturing defects which corrected due to the careless and negligent manufacturing of the car by the appellant.  In the absence of the expert opinion the Forum below decided that the car is having the manufacturing defect within the period of the warranty.  It is not legally sustainable.  And the counsel  for the appellant  cited a settled position of law in the stage of the argument.  The Counsel for the appellant cited a decision of the Supreme court  in Maruti Udyog Ltd.  Vs. Susheel Kumar Gabgotra other (1)2006, CPJ3(SC) and another decision cited by the Counsel for the appellant as Seema Gandhi Vs. Maruthy Susuki Ltd. 3(2011)CPJ 42(NC) On the basis of these two decisions the counsel lfor the appellant argued that the forum below passed an order not on the basis of the evidence adduced by the parties.  But also on self assumption and presumption and found that the Opposite parties 1,2,3 are liable to replace the vehicle due to the manufacturing defect. 

          4. But the very same time the counsel for the respondent/complainant vehemently argued that the manufacturing defects which occurred within the period of warranty the manufacturer/opposite parties 1to 3 are definitely bound to replace the vehicle automatically.  It need not be proved for an expert opinion.  Though the facts already admitted by the manufacturer /opposite parties as per the evidence adduced by the complainant, which shows that the defects which repeatedly occurred to the newly purchased ambassador car.  After the rectification once or twice then also it is continuously reporting the very same defects.  It is repeating continuously.  It is proved by this complainant through the evidence adduced before the Forum below.  Suppose the opposite parties are having any other case, it is their own burden to prove that defence such as  there were no such defects for the vehicle as alleged in the complaint by the complainant.  There is no hard and principle to all the cases to appoint experts  to examine and to  report the defects during the period of the warranty.  In this case it is an admitted fact that the warranty is occurred for the vehicle and the defects continually occurred with in this period and it is proved by the complainant that the defects occurred due to the manufacturing defect of the vehicle.  The only solution is to replace the vehicle.  The counsel for the respondent/complainant cited  a decision.  West Bengal Agro Industries Corporation Vs. Sri. Bijoy Kumar Roy and another 1999 CPR 806(CP)(NC) and another decision cited by the respondent/complainant is Tata Motors Ltd. Vs. Lachia Shetty 2008(1) CPR 440(NC). In this decision it is settled that a new car purchased by the complainant started given trouble in clutch system and gear box in transmission system and defects could not be rectified and removed despite car taken repeatedly. Passing an order for directing the  manufacturer to replace the car is a legal order.  There is no illegality or apparent error in this order.   

          5. Another important point argued by the Counsel for the appellant is that the complainant is an educational institution and they were using this car for commercial purpose for gain the profit.   It is not coming under the purview of the Consumer Protection Act.  Hence this cases didn’t maintainable and liable to be dismissed.  This argument is not legally sustainable by the amendment of the C.P. Act. in 2002. This complaint is not coming under the purview of the C.P. Act.  The Supreme Court well settled this position in the famous case Luknow development authority Vs. Dr. N.K. Gupta and Lekshmi Engineering LTD case etc.  The complainant who purchased the car exclusively for the livelihood of the institution which is a charitable one.  It is also legal person as per the law.  It is not used for commercial purpose and it is for earning money.   They used for the charitable purpose. The  Chinmaya International Foundation is not a commercial establishment.  It is a charitable institution. This Commission discarded the argument of the counsel for the appellant in toto. These are not legally sustainable. 

          6. This Commission heard in detail both parties and perused the entire evidence from the case bundle it is seen that the vehicle purchased by the complainant is having continuous defects and due to this reason they were not in a position to use this vehicle for the charitable purpose.   This is within the warranty period.  The appellant/opposite party 1 to 3 are liable to replace the vehicle due to the manufacturing defects which occurred in the warranty period.  This Commission is not seeing any apparent error in the order passed by the Forum below. There is a proof for the repair of the important parts of the vehicle with in the warranty period.  Here it is not necessary to appoint an expert commissioner. It is as per the provisions of law and evidence.  It is legally sustainable.  This Commission upheld the order passed by the Forum below. 

            In the result this appeal is dismissed and confirmed the order passed by the Forum below. The points of the appeal discussed one by one and ordered accordingly.

                                       M.K. ABDULLA SONA   ; HON.  MEMBER

st