O R D E R.

By Smt. Beena.M, Member:-

            This is a complaint filed under section 12 of the Consumer Protection Act 1986.

2.  Facts of the case in brief:  The Complainant had purchased a Datsun Redi Josi OBSIV car, which is manufactured and marketed by the 2^nd  Opposite Party, from 1^st Opposite Party, the authorised dealer of the Second Opposite Party, for Rs. 4,33,580/- on 21.10.2017.  At the time of purchase of the vehicle, the Opposite Party told the Complainant that there are all kinds of warranty for 2 years from 21.10.2017 and the warranty information and maintenance booklet was given to the Complainant. The Complainant purchased the vehicle only on the above assurance. The Complainant has been keeping the vehicle properly serviced as per the schedule prescribed by the 1^st and 2^nd Opposite Parties. The servicing was recorded by the 1^st Opposite Party in the warranty information and maintenance booklet.  At the time of first service, the Complainant informed to the 1^st Opposite Party that there was a problem with the accelerator of the vehicle.  But the Complainant was made to believe that the engine was ready to be set as the vehicle was new and the vehicle has no defects.  But the vehicle started leaking oil from the engine even after running for 10,000 kms, and that matter was intimated to the 1^st Opposite Party on 03.12.2018. The 1^stOpposite party discovered that the vehicle had defect of high acceleration and after giving the receipt, they took the vehicle with the help of recovery van from the Complainant’s house to the showroom at Kozhikode.  Thereafter, it has been assured that the defects of the vehicle was fully repaired and if not, the vehicle would be replaced with new one. It has been brought back from the 1^st Opposite Party as per the belief that the entire defect has been resolved. The same defects showed many occasions and the 1^st Opposite Party returned the vehicle after repairing.  But on 06.09.2019, again the vehicle showed same defects and so the Complainant handed over the vehicle to the 1^st Opposite Party.  After that the Complainant went to the Opposite Party’s establishment and when he inspected the works he found that the oil leaking area was covered.  On 06.05.2019, after the same defects occurred again, the 1^st Opposite Party again handed over the vehicle and later on inspection of the works by the Complainant, it was found that the oil leaking area inside the engine was sealed with some substance.  The Complainant had taken a loan of Rs.5,05,320/- from finance to purchase the vehicle.  The vehicle was purchased by the Complainant to go to the agricultural place in Gudalur.  From 21.10.2017, the Complainant had taken the vehicle on hire to go to Gudalur agricultural site.  The Complainant has suffered financial loss and mental agony due to calling a taxi and being humiliated in front of others.  Hence, this complaint.

3.  The version filed by Opposite Party No.1 is as follows: There was no deficiency in the service on the part of the Opposite Party as they had completed the work in time and had intimated it to the Complainant who had not come to take the car. There has been no undue or wilful delay or unfair trade practice on the part of the Opposite Party No.1 in delivering the vehicle.  The Opposite Party No.1 is one of the authorised dealers and service centres of Nissan Motor India Pvt. Ltd., which has such authorised dealers and service centres at different places in India.  The Opposite party No.1 has been performing their obligations without any delay or default, and have been providing all services as a responsible dealer and authorised service centre to the complete satisfaction of all the customers including the Complainant. It is admitted that the Complainant had bought a brand-new Datsun Redi-Go SUV manufactured by Nissan Motor India Pvt Ltd on 21.10.2017, after verifying the different models available at the showroom of the Opposite Party No.1 and after being fully satisfied about its quality, performance and standard.  After purchasing the vehicle on 12.12.2017, the Complainant brought the vehicle to the Opposite Party No.1 service centre for 5000 km service which is the first service provided to the vehicle after purchasing. After servicing on the same day itself, the vehicle was returned and the Complainant took back the vehicle with full satisfaction. On 31.01.2018, the Complainant brought the vehicle for 10,000 km service. After servicing the vehicle, it was returned on the same day itself and the Complainant was fully satisfied with the service. On 17.05.2018, the Opposite Party No.1 stated that the Complainant informed that his vehicle’s brake pad was not functioning properly and also complained about an acceleration delay in the vehicle while driving in hilly area, same day itself the Opposite Party No.1 sent a toeing vehicle to his place of residence and the vehicle was towed to the service centre. As the Complainant resides at Wayanad and as a part of the Opposite Party No.1 customer first policy on behalf of the safety of the Complainant the toeing facility was arranged which were given as free of cost.  The brake pad was replaced and the acceleration delay of the vehicle in hilly area was tested and it was found out that no such issue was present. The vehicle was returned to the Complainant on 22.05.2018.  After that the Complainant missed 30,000 km service, missing a service can always cause some sort of issue to the vehicle as it will hamper the smooth functioning and quality of the vehicle. On 08.12.2018, the Complainant brought the vehicle to the service centre regarding issues in APP sensor. The Opposite Party No.1 states that they had informed the Complainant that this type of issue arises because of improper maintenance and missing of the company services. After that, APP sensor was replaced and it was also found out that battery was weak and it must be replaced. On 11.02.2018, the Complainant insisted to take back the vehicle but the Opposite Party No.1 states that they had informed the Complainant that he was to do 30,000 km service as the odometer of the vehicle showed 35000 km service but as the complainant has prior commitments, he took the vehicle without taking the above-mentioned service and replacing the battery.  On 27.02.2019, the Complainant informed that there is a leak in engine oil and the Opposite Party No.1 arranged a toeing facility and the vehicle was towed to the service centre. The Opposite Party No.1 states that he informed the Complainant that this is due to rash and negligent use of the vehicle and not maintaining the vehicle properly, as the Complainant drove about extra 20,000 km without taking any services, this was the sole reason behind the engine oil issues. The leak in the engine oil was resolved. But as the Complainant missed 30,000 km service the complainant lost the right to claim 40,000 km service but as a good will gesture on the party of the Opposite Party No.1, the 40,000 km service was done under warranty as the vehicle crossed 40,000 km mark. The Opposite Party No.1 advised the Complainant to not use the vehicle in rash manner and to do proper maintenance of the vehicle, the Complainant accepted his mistakes and on 5.03.2018 the vehicle was returned to the Complainant.  On 13.03.2018, the Complainant again complained about engine oil issues and the vehicle was towed from Wayanad to the service centre free of cost. The issue was minor in nature and it was recurring because of the rash and negligent use of the Complainant and also because of missing the mandatory services. The issue with leakage of engine oil was resolved and the Opposite Party No.1 reiterated the fact that the Complainant has to use the vehicle properly and in a safe manner. On 17.04.2019, the vehicle was towed to the service centre again with engine oil leakage issue. To check the issue properly, the Opposite Party No.1 informed the Complainant that the vehicle must be kept in service centre for some days for proper resolving of the issue. But the Complainant requested that if the vehicle is kept in the service centre for some days he may have to suffer some losses due to his work related commitments. As a good will gesture on the part of the Opposite Party No.1, a spare car Sunny with Registration number KL-10-BZ-3486 was given. The Complainant drove the vehicle for 9 days. When the issue regarding engine oil leakage was resolved, the Complainant brought back the alternative car and his original vehicle was taken back. As at that time he does not come under the warranty package but due to the special request from the Opposite Party No.1, the issues with the car were done under warranty. The engine oil issue was resolved and the vehicle was returned on 27.04.2019. At last, on 06.05.2019, the vehicle was again towed to the service centre with leak in engine oil. The problem was resolved and the vehicle was ready for delivery on 22.06.2019, but after that the vehicle was kept in the service centre. After repeatedly informing through phone and mail, the Complainant was in no mood to take back his vehicle and was asking for replacement.  As the issue with the vehicle was due to rash and negligent use of the vehicle by the Complainant, along with improper maintenance, the Opposite Party No.1 has no obligation to replace the vehicle.  All other allegations are denied by the 1^st Opposite Party.  The Complainant drove 20,000 km without taking any service from the Opposite Party No.1.  Thus putting extra pressure on the engine and Complainant’s rash and negligent use aggravated the pressure on the engine. The allegation that the Opposite Party No.1 has admitted the manufacturing defect of the vehicle and assured to replace the vehicle if it is not cured after mechanical work, is baseless in nature. As it is not a manufacturing defect, the Opposite party No.1 has no obligation to replace the vehicle. It is also important to note that from 22.06.2019 the vehicle is kept in the Opposite Party No.1’s service centre and due to delay in collecting the vehicle, the Complainant is required to pay an additional demurrage charge of Rs.250/- per day as the Opposite Party No.1’s valuable space in the Opposite Party No.1’s service centre. Moreover, the Complainant has made a defamatory post regarding the Opposite Party No.1 in his face book profile.  It was posted after the Opposite Party No.1 took the stand of not replacing the vehicle as the Opposite Party No.1 does not have the obligation to replace the vehicle as the issues in the vehicle was due to the rash and negligent use of the vehicle along with improper maintenance on the part of the Complainant.  In order to coerce the Company to replace the vehicle and hamper its reputation, the Complainant has posted such defamatory post in Facebook. The Complainant is to pay a compensation of Rs.25,00,000/- to the Opposite Party No.1 for the face book post and issue an unconditional apology and bring it to the notice of the public that the impugned statements/allegations made by the Complainant are not true or correct.  There is no deficiency of service on the part of the Opposite party No.1.

            4.  The Opposite Party No.2 submitted that the vehicles manufactured by them through stringent quality checks and road trials before the actual commercial production starts.  The vehicles manufactured at the plant of Opposite Party also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for despatch to the authorized dealers who are appointed on a 'principal to principal’ basis for sale of the cars and vehicles.  There is no role in respect of sales, repair or service of Vehicle on the part of Opposite Party No. 1 or 2.  They submitted that the Complainant purchased DATSUN REDI GO on 21.10.2017 along with two years of manufacturer warranty which is incorporated in warranty information and maintenance booklet.  It is submitted that the Dealer/Opposite Party No.1 is responsible for the sale and services of the said vehicle purchased by the Complainant as per the Dealership Agreement entered between this Opposite Party and Opposite Party No.1.  It is further submitted that this Opposite party enters into agreement to sell its vehicles with its authorised dealers and the said authorised dealers are entrusted with the sale of cars and vehicles after the said vehicle is delivered to the authorised dealer from the manufacturing plant of the Opposite Party as per the dealership agreement. It is further submitted that the Complainant has alleged that at the time of first service itself, the Complainant had informed the Opposite Party No.1 about a defect in the accelerator. The Opposite Party No.1 had represented and convinced the Complainant that this issue arises only because that the car is new vehicle and that the engine has to set in and that the vehicle has no defects whatsoever. After the vehicle had run for 10,000 km, Complainant has found that there is oil leak from the engine and the same has been informed in writing to the Opposite Party No.1 on 03.12.2018. After inspecting the said vehicle, the Opposite Party No.1 has found that the vehicle is having high acceleration defect and the Opposite Party No.1 had taken the vehicle from Complainant’s house with due receipt of acceptance to their service centre by using their recovery van and they have assured that they will repair the said vehicle and make it completely defect free, failing which replacement of vehicle could be done. Based on this assurance, the Complainant has accepted the delivery of the said vehicle after the repair.

5.  It is further submitted that, subsequently on 18.05.2018, 08.12.2018, 28.02.2019, 14.03.2019 and 22.04.2019, the said vehicle had shown defects of engine oil leak and also defect in acceleration. The Opposite Party No.1 had taken the vehicle using recovery van from the Complainant and had taken the vehicle to Kozhikode to rectify the aforementioned defects. However, on 06/05/2019, the vehicle again developed the same defects and the Complainant approached the Opposite Party No.1, who admitted that the same defects persist. The vehicle was entrusted with the Opposite Party No.1 who has given a receipt noting the defects. Thereafter, when the Complainant visited the Opposite Party No.1 to inspect the work status of the car, complainant found that inside part of the engine from where leak has occurred has been plugged using some substance. The Complainant has taken a photo of the said part.  Thereafter, till date, the Opposite Parties have never communicated anything to the Complainant as regard the status of the repair and rectification of the defects of the vehicle; or replacement of the vehicle with new one. The Complainant had purchased the vehicle, amongst other purposes, also for the purpose of going to his farm at Gudalur, Nilgiris. The Complainant has suffered great financial loss by virtue of regular hiring of other vehicles on rent. The very purpose of the purchase of vehicle has been lost and the Complainant who purchased the vehicle for his daily needs has not been able to use it as per his will and desire. Being aggrieved, the Complainant has filed the present Complaint.

            6.  It is submitted that the Opposite Party has been wrongly made as a party to the present case, and the Opposite Party is neither a necessary party nor a proper party to this case and hence the present complaint is liable to be dismissed against the Opposite Party No. 2.  It is submitted that as per the Dealership Agreement entered into between this Opposite Party and the Dealer/Service Centre, the Service Centre is liable to carry out sales and services of the vehicles through the Service Centre and as such the Opposite Party has no role in the sales, service and repair of the vehicles. It is further pertinent to mention that the communications are made only between the Complainant and the Opposite Party No. 1 and the same has been repaired and rectified by the Opposite Party No.1 whenever the Complainant has brought his vehicle to vehicle to the service centre.

7.  It is further submitted that the Hon’ble National Consumer Commission in the case of Maruti Udyog Limited V. Nagendra Prasad Sinha and others II (2009) CPJ 295 (NC), has clearly held that “the Manufacturer of vehicle is not liable/responsible for acts done by the Dealer' Service centre, as the Dealer/ Service centre is not the agent of the Manufacturer”. In the present case, the Complainant alleging that there is deficiency in service of the Vehicle and unfair trade practice on the part of the Opposite Party is not at all sustainable since primarily transaction pertains strictly between the Complainant and Dealer/Service Centre and the Opposite Party cannot be held liable for the same in any manner, whatsoever.

8.        It is pertinent to note that Section 2(1) (g) the Act defines deficiency as “any fault imperfection, shortcoming or inadequacy quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”. Thus, as per the definition and considering the above submissions there has been no negligence, deficiency or unfair trade practice on the part of this Opposite Party which is not any manner connected with the sales and Services of the said Vehicle.

1. The Opposite Party admitted that the vehicle was purchased by the Complainant from Opposite Party No. 1.
2. That in reply to Para 3 it is submitted by this Opposite party that no such defect has occurred as alleged by the Complainant. Service History of the vehicle is the clear evident to prove that no such defect was found during the course of first service as alleged by the Complainant in the complaint.  It is submitted that as per the Dealership Agreement entered into between this Opposite Party and the Dealer/Service Centre, the Service Centre are liable to carry out sales and services of the vehicles through the Service Centre, and as such, the Opposite Party has no role in respect of the sales, service and repair of the vehicles. It is submitted that this Opposite Party has no direct contact with the Complainant or any other customer regarding the sales and service of the vehicle. Moreover, no manufacturing defect has not been found or proved against the Opposite Party.  The Opposite Party prays to dismiss with costs.

9.  The Complainant in this case has filed proof affidavit and examined as PW1 and the document produced were marked as Exts.A1 to A7 and the Commission  Report  marked as Ext.C1.  The Expert Commissioner  examined as PW2.  The report filed by the Expert Commissioner confronted to him and the conclusion  part is marked through him as Ext. C1(a).  The General Manager (Service) of 1^st Opposite Party filed proof affidavit and examined as OPW1. 

10.Points for consideration are as follows:-

1. Whether there is any deficiency in service on the part of Opposite Parties?
2. Whether the Complainant is entitled to get the reliefs prayed for?

11.Point No. 1 and 2:-  For the sake of brevity and convenience both the points are taken up together for consideration and discussion.

            12.  According to the Complainant, on several occasions the defects appeared and the reason for the repeated appearance of these defects was the improper service rendered by the Opposite Parties.  On the other hand, the justification of the Opposite Parties was that the Complainant was not using the vehicle correctly and when the vehicle is used in rash and negligent manner such defects were caused.  Admittedly, the above defects were caused to the vehicle repeatedly and in the service centre, they were rectified.  Here, no evidence is available to prove that the defects caused to the vehicle were the rash and negligent driving.  Repeated occurrence of same defect to the vehicle shall be due to manufacturing defect or improper service.  The Opposite Party cannot wash their hands alleging that those defects were caused due to rash and negligent manner of the driving of the vehicle by the Complainant.  Anyhow, the same defects were repeatedly emerged which caused hardship to the Complainant.  Moreover, as per report of the expert commissioner, the vehicle with regard to maintenance, the vehicle is undergone periodical maintenance except forth one and also at the time of chief examination conducted on 11.09.2023, the expert commissioner deposed that ‘’dnt¸mÀ«nsâ Ahkm\w conclusion F¶v tNÀ¯ncn¡p¶Xv Fsâ opinion BWv.  Present condition of this car is unfit for all weather riding.  Non-durable metallurgy for manufacturing is the defect of the car.  Without a trial run and test drive, not safe for long ride.  The expert commissioner gave a different version in the cross examination, contrary to the version deposed in the chief examination. We are inclined to accept the version in the chief examination, which is same as the report filed by the Commissioner.  Here the examination in chief of the expert commissioner was recorded on 11.09.2023 whereas his cross examination was recorded on 15.09.2023, after 3 days. So, on perusal of expert commission report and deposition of expert in chief examination it is evident that the vehicle given by the Opposite Parties was a defective one.  Though the expert Commissioner not reported about the manufacturing defect it is evident that the vehicle was repaired many times for the oil leakage problem.  Further, the Commissioner reported that three years of idle dumping may affect all internal parts of IC engine.  Here, there is no fault on the part of Complainant since the defect is not cured by the Opposite Parties as he could not take the vehicle from the workshop. On the basis of the findings, we come to the conclusion that the vehicle sold to the Complainant has manufacturing defect and the service rendered by the Opposite Party are also not proper.  Hence, the Opposite Parties are guilty of deficiency in service and unfair trade practice. The dealer cannot escape from the liability in respect of even manufacturing defect for he has supposed to see at the time of taking the delivery that the vehicle did not suffer any manufacturing defect.  The 2^nd Opposite Party raised an allegation that there is no privity of contract by them and the Complainant and they are the unnecessary party since there is no contract between the Complainant and 2^nd Opposite Party.  In our view, the Opposite Party being the manufacturer, manufacturing defect of the vehicle in question, they cannot say that there is no privity of contract.  They cannot escape from the liability.  It is contended by the Complainant that he had incurred expenses of Rs. 1,00,000/- on hiring taxi.  It is not mentioned by the Complainant in the Complaint or in his affidavit as to on which dates he hired the taxi for his convenience.  Number of hired taxi or name of driver not disclosed.  No document produced to show as to what amount of fare was paid for hiring taxi. In the absence of evidence in that respect and in view of vagueness of the allegations certainly the Complainant is not entitled to get the alleged expenses of Rs. 1,00,000/- for hiring taxi.  So, Complainant is entitled for the replacement of vehicle/refund of the price of the vehicle, compensation and litigation expenses only, not more than that.

In the result, the complaint is partly allowed, and the Opposite Parties are jointly and severally directed to replace the vehicle or to pay Rs.5,05,320/- (Rupees Five Lakh Five Thousand Three Hundred and Twenty Only), which is the price of the vehicle.  The Opposite Parties are further directed to pay compensation of Rs.30,000/- (Rupees Thirty Thousand Only) and Rs.12,000/- (Rupees Twelve Thousand Only) as cost to the Complainant. 

The above order shall comply within 30 days from the date of receipt of copy of this order, failing which the Complainant is entitled to get the interest @9% p.a. The Complainant shall return the vehicle to the Opposite Party after the realisation. 

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 23^rd day of August 2024.

Date of Filing:-23.09.2019.

PRESIDENT   :   Sd/-

MEMBER       :   Sd/-

MEMBER       :   Sd/-

APPENDIX.

Witness for the Complainant:

PW1.           Mohandas.                     Agriculture.            

PW2.           Premdas.                        Work shop Superintendent.

Witness for the Opposite Party:

OPW1.        Rohith. K.                      AGM   After Sales.

Exhibits for the Complainant:

A1.      Special Power of Attorney.               dt:05.09.2019.

A2.      Copy of Lawyer Notice.                            dt:12.07.2019.

A3.      Warranty  Information  & Maintenance  Booklet.

A4.       Copy of Vehicle History.                

A5.       Letter.                                             dt:03.12.2018.

A6.       Letter.                                             dt:06.05.2019.

A7.       Breakdown Service Report Form.  

C1.       Expert Commission Report.            dt:21.03.2023. 

C1(a)    Conclusion Part  of  Commission  Report.          

Exhibits for the Opposite Party:

Nil.

                                                                         PRESIDENT:   Sd/-

                                                                          MEMBER   :    Sd/-

                                                                          MEMBER   :    Sd/-