This is a complaint filed Under Section 12 of Consumer Protection Act. 1986.

The complaint is filed for replacement of defective car with a road worthy and safe car or otherwise  return of the price of the car and other accessories and expenses met by the complainant for registration with  interest at the rate of 12% per annum and for compensation Rs.1,00,000/- along with cost.  The complainant further prayed for  return of Rs.8500/- which was spend for arranging towing facility  with interest at the rate of 12% per annum till the realization.

          Briefly stated facts of the complaint is that the complainant  purchased a FIAT Linea [Emotion] Petrol Car, bearing Engine NO.7005169 and chassis NO.MCA 11031609008025 GPZ, from the 2^nd opp.party on 25.8.2009 as per Invoice NO.1032.  The first service of the vehicle was made at KVR Dreams Vehciles Pvt Ltd., Thottada, Kannur on 21.10.2009,   The second service was done at Hyson Motors, Thrissur on 19.5.2010.  The vehicle was running in good condition and no mechanical defect or problems were found out during the above two services.   After the second service, the vehicle was handed over to the complainant at 6 PM  on 19.5.2010.   The complainant’s husband was driving the vehicle on the way back to Kozhikode through Guruvayoor .   Complainant’s aged mother was also traveling along with complainant in the car.   When the car reached near Guruvayoor, the running car was broke down, and the driver lost control of the vehicle all on a sudden in the road at 10.30 P.M. in the night .  Since there was no other vehicle in the road at that time, complainant, her husband and mother escaped unhurt.    The complainant contacted Hyson Motors, Thrissur, the authorized service station of first opp.party, at one through phone and informed the incident and requested their help.   They refused to come over there and advised the complainant to bring the vehicle at their workshop at Thrissur.   They further informed that they will attend the vehicle only on the next day.   The complainant then tried to get in touch with FIAT help  line for providing a towing facility to bring the vehicle at Thrissur.  But they have not provided that help.   The complainant a lady with her aged mother was stranded in the middle of the road.   At midnight police patrol vehicle stopped on seeing two women stranded in the middle of road.   They helped the complainant and arranged  a private towing party came and brought the vehicle at Thrissur.  Complainant paid Rs.3,500/- for their service.  On 20.5.2010 the service Engineer of Hyson Motors, Thrissur examined the car and told the complainant that clutch pedal of the vehicle was broken, which caused the break  down of the vehicle while running.   Complainant was further told that there may have a weak point to clutch pedal due to the presence of air bubble in the pedal happened to be present there while molding it and the chance of such an event is rarest of the rare occasion in the long use of the vehicle.   They further told that the broken clutch pedal was replaced with a new one and there would not have any further trouble to the vehicle on that account.

 On 19..11..2010. Mr. Makalu Balachandran, the husband of the complainant was driving the above vehicle from Alappuzha to Thiruvananthapuram through National Highway 47.  At about 8 a.m. when the car reached near Kavanad Junction of Kollam city the above said clutch pedal of the vehicle again broke and the vehicle lost control and the driver managed to stop the vehicle without hitting other vehicles in the road.    Complainant’s husband contacted the 2^nd opp.party by phone for their help.  But the 2^nd opp.party refused to render help and advised him to contact their Branch at Kollam.  When contacted they informed that no skilled mechanics are available with them.   Then the 2^nd opp.party directed the husband of the complainant to bring the vehicle at their service centre, which is 80 KM away.   With the help of a private towing company, the vehicle was brought at the workshop of the 2^nd opp.party at 2 p.m. on that day on spending Rs.5000/-  The Service Engineer of the 2^nd opp.party after examining the vehicle, informed the complainant that the failure of the clutch system of the vehicle resulted in the breaking of the clutch pedal on two  occasions and the above problem can be solved by replacing clutch cylinder and kit.  In this case, a vehicle manufactured by an International Automobile giant like FIAT , failed due to inherent mechanical defect, in road while riding twice with 15 months from date of purchase of the vehicle   The complainant is not in a position to believe the assurance given by 2^nd opp.party.    The complainant reasonably apprehend that there is every chance for further break down of the clutch system of the vehicle, which is a manufacturing defect of the engine.    The complainant is entitled to get the defective car replaced.  The  unsustainable defect of the car and non availability of timely services from the opp.parties caused much mental agony and hardship and financial loss to the complainant, for which the opp.parties are liable to pay compensation to the complainant.   The complainant on 10.11.2010 send a registered notice to the 1^st opp.party demanding replacement of the defective  car  with a new one.  Not even a   reply was given to the complainant.  The complainant was forced to issue lawyers notice.  The first and 2^nd opp.parties  have not cared to redress the grievances of the complainant.  Not even a reply was issued.  The above acts of the opp.parties are deficiency in service on their part and hence this complaint.

Even though sufficient opportunity has been given the 1^st opp.party remained absent and hence set exparte.

          The 2^nd opp.party filed version contenting that the complaint is  barred by non joinder of necessary parties and  that the complainant  is based on deserted and incomplete facts.  Averments in para 2  to 5 is unaware to the 2^nd opp.party and hence denied.  Averments in para 6 to 10 is  not fully correct and hence denied.  The 2^nd opp.party  have no service centre for FIAT vehicle in Kollam.   The 2^nd opp.party  give advice and phone  number of the towing company to brought the vehicle at Thiruvananthapuram Service Centre.    During the repair, clutch  slave cylinder, drive plate, tail light and brake oil top up is replaced  under warranty.   The 2^nd opp.party replied the Lawyer Notice and the reply was accepted by the lawyer of the complainant. on 3.1.2011.  No loss has been caused to the complainant by the 2^nd opp.party and has not entitled to any relief.  Hence the complaint is to be dismissed. 

On 24.9.2012 the complainant filed memo stating that  no relief sought against the 2^nd opp.party.   The memo was recorded

The complainant filed affidavit.  PW.1 examined and Exts. P1 to P10 marked.

The points that would arise for consideration are:-

1.     Whether there is any deficiency in service from the part of opp.party

2.     Compensation and cost.

POINTS 1 AND 2

As the 1^st opp.party remained absent and the evidence adduced from the part of opp.parties we are constrained to relay upon the evidence  adduced  by the complainant

We have carefully perused the documents adduced by the complainant.  On a detailed verification of entire documents before us we find that there is deficiency in service from the part of 1^st opp.party.   The 1^st opp.party is liable to compensate the damages and  financial  loss sustained by the complainant.   The points found accordingly.  As no relief sought against 2^nd opp.party, the 2^nd opp.party is exonerated.

     In the result, the complaint is allowed in part.   The 1^st opp.party is directed  to replace the defective car with a new road worthy and safe car of the same  brand .   The opp.party is further directed to pay towing charges Rs.8500/- with interest at the rate of 9% per annum till the date of realization and to pay compensation Rs.50,000/- along with cost Rs.1500/-

The order is to be complied with within one month from the date of receipt of this  order.

            Dated this the 29^th day of September, 2012.

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List of witnesses for the complainant: NIIL

List of documents for the complainant

P1. – Power of attorney

P2. – Tax invoice

P3. – Registered notice sent  by complainant

P4. – Photocopy of postal receipt

P5. – Photocopy of acknowledgement card

P6. – Advocate notice

P7 series. – Postal receipt

P8. series – Photocopy of acknowledgement card

P9. – Reply notice

P10. – Counter foils for vehicle service [ 3 nos.]