IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 13th DAY OF FEBRUARY , 2013
Present: Smt. G.Vasanthakumari,President
Sri. R.Vijayakumar ,Member.
Adv.Ravisusha, Member
CC.NO. 229/2009 (FILED ON 05-08-2009)
SMT. D.MEENAKSHY AMMA
‘SOUPARNIKA’ 5/457,SS NIVAS,
CHERUMOODU, VELLIMON.P.O.
(By Adv: David Kozhy ,Kollam) - COMPLAINANT
V/S
1. FIAT INDIA AUTOMOBILES PVT LTD,
REGD OFFICE AND FACTORY AT
B.19,RANJANGAM, MIDC,
INDUSTRIAL AREA, RANJANGAON-
SHIRUR DISTRICT ,PUNE-
2. THE GENERAL MANAGER,
M/S KULATHUNGAL MOTORS,
KURAVANKONAM MARKET,
KOWDIAR P.O,
THIRUVANANTHAPURAM.
3. M/S KULATHUNGAL MOTORS,
TOLL JUNCTION, CHAKAI,
KAZHAKOOTTAM BY PASS ROAD,
ORUVATHILKOTTA, ANAYARA P.O,
THIRUVANANTHAPURAM.
(By Adv: Nair Ajay Krishnan )
1. TATA MOTORS,
WORLD TRADE CENTRE,CAFÉ, MUMBAI -400001
(BYAdv: V. Krishna Menon)
2. SRI. SREERAG,
M/S KULATHUNGAL MOTORS,
KALLUMMOOTHIL BUILDINGS,
PALLIMUKKU, KOLLAM.
(By Adv: Nair Ajay Krishnan ) -OPPOSITE PARTIES
ORDER
SRI.VIJAYAKUMAR ,MEMBER
This is a complaint filed u/s 12 of Consumer Protection Act seeking direction to the opposite parties to substitute a new Fiat palio car and to pay compensation Rs.50000/- along with adequate cost of proceedings.
2. Briefly stated facts of the complaint is that the complainant a Headmistress in a school purchased a Fiat Paliocar using the money contributed by the family members of the complainant and her husband in connection with their 25th wedding anniversary. He complainant paid Rs.5,05,905/- as per Invoice No: 2985 dated 30/05/2009 issued by 3rd opposite party. The vehicle got registered under Motor vehicle Act on 04/06/2009 and allotted Registered NO is KL 2AD/1059. The vehicle ran less than 150 kilometer while in the possession of the complainant and her family members. The 5th opposite party, an employee previously attached to the 2nd opposite party and now attached to the 3rd opposite party personally approached the complainant and her son Sri.Anurag on 17/07/09 and reported that the Regional Manager of the 4th opposite party
Tata Motors, Mumbai, the marketer of said type vehicle would be visiting the Authorised dealer at Trivandrum on 17/07/2009 and 18/07/09 and that some minor manufacturing defects in the vehicle was noticed at the time of inspection and delivery of the vehicle. Such minor defects should be brought to the notice of the Regional Manager. The 5th opposite party made to believe the complainant that the vehicle should be taken to Trivandrum on 17/07/09. The complainant permitted the 5th opposite party to take the vehicle to Trivandrum on 17/07/09 as he had opted and voluntered to take the vehicle by himself to Trivandrum.
By late evening on 17/07/09, the complainant’s son received a telephone call from 5th opposite party and reported that the said vehicle met with an accident at Kallumthazham on 17/07/09 and the vehicle was under the custody of Kilikolloor Police station and physical presence of complainant’s son Anurag with his original Driving Licence is required immediately. The complainants son rushed to the kilikolloor police station, but without talking original DrivingLicence.
The 5th opposite party attempted to pacify the complainant’s son and reported that the vehicle could be repaired with the help of a G.D entry, and with the amount that would be reimbursed by insurance company. It was further intimated that the insurance company would not grant the entire claim but the difference would be adjusted by the authorised dealers etc by depreciation. As the complainant could not understand the proposal made by the 5th opposite party, the complainant requested the 3rd opposite party to do justice either by granting refund of the vehicle cost fully or by substituting a new vehicle for damaged vehicle. The complainant issued notices dated 23/07/09 to the 3rd opposite party and thereby reported what transpired on 17/07/09. The vehicle at present seen abandoned in the premises of service centre of the 3rd opposite party. It is seen exposed to sunlight and rain from 17/07/2009 till date. The vehicle is in the process of deterioration day by day. Admittedly by the vehicle in having manufacturing defects. The arrogant attitude and gross negligence from the part of opposite parties 2, 3 and 5 leads to this situation.
The complainant is entitled to get refund of the entire sale consideration with registration charges payment of insurance Premium and other incidental expenses and to recover compensation and cost.
Upon receipt of the suit notice issued by the complainant to all the 5 opposite parties, 5th opposite party adopted an attitude to threaten the complainant and her son over telephone. Gross negligence and deficiency in service from the opposite parties resulted in financial loss and mental pain to the complainant hence the complaint.
The opposite parties 1 and 4 filed separate version . Opposite parties 2, 3 and 5 also filed version jointly.
The 1st opposite party contented that Fiat India Automobiles P (LTD )is not the manufacturer and the actual manufacturer is New Hotland Fiat India Pvt Ltd. The complaint suffers from misjoinder of parties. The 1st opposite party is no way connected with the complaint and is not answerable for any claim to the complainant. The 1st opposite party had given parawise reply on behalf of opposite party by New Holland Fiat India Pvt.LTD. The relationship between Opposite party 1 and 4 is on Principal to principal basis and not having any direct relationship with 2nd 3rd and 5th opposite parties and opposite party1 cannot be made liable for the acts of opposite party 4 or its dealers or the other opposite parties. There is no privily privity of contract and never had any transaction, with the complainant. The 1st opposite party is not having direct knowledge about the arrangements mentioned between the other opposite parties. The allegation of the complainant that the 5th opposite party had reported to him about certain manufacturing defect in the subject vehicle is in correct, and raised without any merit and material basis. The unusal circumstances mentioned by the complainant in relation to handing over of the vehicle to 5th opposite party for the purpose of inspection is to be put to strict proof and it can be considered as has been done at the risk of the complainant himself. It is evident from the pleading itself that the complainant is not having any grivence against the 1st opposite party related to the incidents culminated in an accident which caused
damages to the vehicle purchased by the complainant. It is evident that the complainant did not experiences any sort of problems herself while using the vehicle.
The complainant is not entitled for any refund as has been claimed by her. The claim for recovery of compensation and cost against 1st opposite party also is liable to be dismissed. The allegation raised to the effect that the vehicle is having manufacturing defect is totally baseless . There is no negligence, deficiency in service or unfair trade practice from the part of 1st opposite party.
The opposite parties 2, 3 and 5 jointly contended that the complaint is liable to be dismissed with compensatory cost. The vehicle was delivered on 30/05/09. The vehicle has a warranty of 18 months from 30/05/2009. The vehicle has a warranty of 18 months from 30/05/09 or 60000 kms whichever is earlier. On 04/07/2009 the complainant had brought the vehicle to the opposite party’s service centre at Kadappakkada, Kollam for repair after an accident. It had already run 241 k ms. The avernment in para 8 to 12 of the complaint is not true and hence denied. The 5th opposite party is an employee of the opposite parties 2 and 3. The 3rd opposite party has leamed that the 5th opposite party and the complainant and her son are close family friends and the whole episode narrated in para 8 to 12 is related to something that happened. Personally between them. Since the relationship between them has fallen out the complainant and his son is trying to wreck personnal animosily with 5th opposite party by bringing his employers, manufacturers etc: with a false claim and get him out of employment. It is reiterated that the 3rd opposite party is totally unaware of any such incident in their official capacity. The opposite parties never interacted with the complainant or her son with respect to the refund of whole cost of the vehicle orsubstitute by a new vehicle etc. The opposite party never authorized the 5th opposite party for threat or violence in any form. The avernment in Para 14 is defamatory. On 17/07/2009 the son of the complainant brought the vehicle to the service station at Kollam stating that the vehicle was involved in an accident and left the premises and stated that he would come on the next day to do the
necessary in this regard . When the complainant was informed to give instruction for the works to be done, they have stated that they wanted a new vehicle, if not they don’t want the vehicle. From that day, the vehicle is in the safe custody of the opposite party. Once when the vehicle was involved in an accident in the hands of the complainant’s son, the complainant’s son requested the 5th opposite party to take responsibility of the same. The complainant’s son further stated that his mother had some illusions of a bad Omen on the vehicle so she would also like replacement. The 5th opposite party did not succumb to this illegal demand hence this whole complaint has been concoated and fabricated . The complainant is unsustainable and against the elementary principles of law. The complaint is based on false and frivolous contention solely to abuse process of court and to harass the opposite party with ulterior motive. The complaint is to be dismissed.
The 4th opposite party contented that the complaint is liable to be dismissed as the complainant has not approached the Forum with clean hands. The complaint is vague, baseless and illmotivated . In the absence of any material evidence this complainant cannot be treated as a consumer. The complaint is based for misjoinder of unnecessary party. The car in question has met with an accident on 04/07/2009 and brought at workshop of opposite party 2 and 3 for accidental repairs. The complainant had suppressed the said material fact before the Forum. As per terms and condition /limitations of warranty would come to an end once the car met with an accident. The complainant cannot claim for relief as per terms and condition of the warranty as a matter of Right. The car purchased by the complainant is of the highest quality and has taken after being satisfied with the condition of the car and its performance and delivered after carrying out of pre-delivery inspection. Whenever any car reports to a workshop for scheduled services for any repairs, standard checks are carried out mandatorily and nothing is done at the backside of job-card. The car as attended by the opposite party’s dealer / service points fully comply with warranties assurances and specifications provided for it by the manufacturer
regarding the quality and performance of the car. Hence there cannot be any complaint of deficiency in service.
The complainant has filed this complaint alleging problems in the car without having produced any expert openion/documentary proof to establish any manufacturing defect. The complainant seeking replacement of a new car and compensation is contrary to law and is enable.
The 4th opposite party does not admit paragraphs 1 to 7 of the complaint . Paragraphes 8 to 12 is not true and not within the knowledge of the oppositeparty. The 4th opposite party is given to understand that since the personal relationship between opposite parties 3 and 5 fallen out, the complainant and her son trying to wreck personal animosity with 5th opposite party by bringing his employers with a false claim and get him out of employment.
Allegation in para 13 to 17 also not true and hence denied. The opposite party is instructed to state that the 3rd opposite party had never interacted the complainant or her son with respect to the refund of full cost of vehicle or substitute with a new one.
Awarements in Para 14 are not true and it is defamatory.
The complainants vehicle had been entrusted to the 3rd opposite party’s workshop of 3rd opposite party after the car met with an accident on 04/07/2009 for carrying out certain accident repairs and the car was repaired by 3rd opposite party on paid basis . There after the car met with another accident and service personal of 3rd opposite party after inspection informed that since the damage to the vehicle is caused by an accident and same can be rectified only an payment basis case on the basis of a claim made to the insurance company with which the subject car is insured. The 4th opposite party cannot be held liable for the same. There is no merit or basis in the claim that her vehicle suffers from manufacturing defect . Hence the complaint is liable to be dismissed.
The complainant filed affidavit Pw1 to 7 examined Exbts P1 to P16 marked. Exbts C1 , C2 X1 series and X2 also marked.
The points that would arise for consideration are :-
1. Whether there is any deficiency in service from the part of opposite parties
2. Compensation and cost
Points 1 and 11
Adultedly the complainant had purchased a Fiat Palio car on 30/05/2009 paying Rs.5,05,905/- including price of the car road tax, Registration charges, Insurance Premium etc:-
The main allegation raised by the complainant is manufacturing defect. According to the complainant there was manufacturing defect in the dash Board at the time of delivery itself and the opposite party agreed to rectify the complaint at time of 1st service itself. The 5th opposite party personally approached the complainant and her son Sri. Anurag on 17/07/2009 and reported that the Regional Manager of 4th opposite party would be visiting the authorized dealer at TVM and it was reported by the 5th opposite party that some minor manufacturing defects in the vehicle was noticed at the time of inspection and delivery of vehicle and such minor manufacturing defects should be brought to the notice of the Regional Manager of 4th opposite party during his visit on 17/07/2009 to TVM . Believing the words of 5th opposite party, the complainant permitted the 5th opposite party to take the vehicle to Trivandrum on 17/07/2009 and further it is reported by 5th opposite party that the vehicle met with an accident at Kallamthazham on 17/07/2009 and the said vehicle was under the custody of Kilikolloor police Station,Kollam.
According to the opposite parties there was no manufacturing defect and the complainant did not had experience of any sort of problems while using the vehicle. The complainant had alleged this problems without producing any
expert evidence or documentary evidence. The only finding arrived by the expert commissioner with respect to the condition of the vehicle is a scratch noticed in the dash Board. The report does not indicate any manufacturing defect. The scratch in the dash board cannot be considered as a manufacturing defect. Moreover it might have happend due to the accident.
While in cross examination Pw1, had stated that the vehicle is having manufacturing defect in dash Board. It was not reported to opposite party 1. It was reported to the delivery point. But PW1 admitted that there is no document to show that the matter was reported to the delivery point. But Pw1 admitted that there is no document to show that the matter was reported to the delivery point. No satisfactory answer was given by Pw1 as to why the matter was not stated any where in the complaint she had also admitted that there was no problem in the running condition of the vehicle due to the defect in the dash Board. She had also admitted that the warranty will cease if the vehicle met with an accident. Pw1 further admitted that the complaint is filed against the opposite parties because of the enemical terms with opposite party 5. It is also admitted that the complaint has not contacted with the opposite parties and the person who contacted directly is his son. It is also admitted that she had only hearsay knowledge regarding this matter. She had deposed that she is not remembering whether any complaint has been sent by the complainant to the concerned opposite parties.
In our point of view, the complainant had not produced conclusive proof to show that the car is having manufacturing defect. There is no specific complaint regarding the manufacturing defect. The allegation raised by the complainant regarding manufacturing defect is a scratch in the dash Board . But it is not mentioned in the complaint. It is stated Ext:C2 , report of expert commissioner page 4 item No: F-vehicle Inspection that a scratch noticed at the dash Board of the car which was considered to be a manufacturing defect. However the scratch will not affect the function of the vehicle. He had further
stated Ext.C2 Page 6 under item cost of spares D ‘ Replacement of front Dash Board is to be considered under warranty replacement by Authorised vehicle Agency. Cost of such replacement is estimated at Rs. 9092. It is further stated in Ext. C2 page 7 under item “ Summary of finding /openion that “Dash Board appear to be manufacturing defect Replacement under warranty through an authorized service Centre of FIAT/ TATA Motor LTD to be initiated.
There is no definite and undoubted conclusion in Ext.C2 that the car is having manufacturing defect. The suggestions and assessments of the expert commissioner in the C2 expert Report is not sufficient to conclude that the vehicle should be replaced with a new car of the same type. It is also pertinent that as per the conditions of warranty of the said vehicle has been ceased as two accidents were already occurred. While in cross exam the complainant also admitted this fact. The statement that the scratch in the dash Board was noted by the complainant and the 3rd opposite party agreed to rectify the defect at the time of 1st service itself is unbelievable. Naturally, the dealer cannot rectify manufacturing defect. The manufacturer only is liable to replace the manufacturing defect of parts of the vehicle or to replace the vehicle with a new one. If the statement that there was a scratch in the dash Board is true, what prevented her from demanding for a defectless vehicle of the same type or to take the vehicle only after rectifying the defect before delivery . It is obvious from the facts that complainant never demanded replacement of dash board . It is also pertinent that the expert commissioner inspected the vehicle only after the incidents of two accidents.
The learned counsel for the complainant argued that the vehicle was not brought to the opposite party by the complainant or her son. The vehicle was abandoned in the yard of Kulathungal motors. The opposite party had admitted that the vehicle was involved in an accident. It is not seen in the GD entry to whom the vehicle was entrusted. The presence of the vehicle left unattended in Kulathungal Motors from 17/07/09 to 10/03/2009.Kulathungal Motors did not even care to
the Insurance Company. The opposite parties 1, 2 and 5 did not care to give a letter to the complainant to report that the vehicle was abandoned at the yard of Kulathungal Motors with an aim to Saddle the liability of the accident on the shoulders of PW2.
Opposite parties 2,3 and 5 stated that the complainant’s son brought the vehicle to the service station, Kollam stating that the vehicle was involved in an accident and left in the premises of the service station and stated that he would come on the very next day to do the necessary in this regard. After this when the complainant was informed to give instruction to the works to be done, they demanded replacement of the vehicle or otherwise they need not want the vehicle.
It is admitted that the vehicle met with an accident. Eventhough the complainant alleged that the vehicle was taken by the 5th opposite party making the complainant to belive that it is necessary to show the car before the Regional Manager for rectify the minor defect, nothing was produced to show that the vehicle was taken by the 5th opposite party from the complainant’s premises. It is admitted by Pw1 and 2, complainant and her son that previously by the car was met with an accident on 04/07/09 when it was driven by the complainant’s son and the vehicle brought at opposite party’s service centre at Kadappakkada. Insurance was not claimed for that accident. If it is true that the vehicle was entrusted to 5th opposite party to show the Regional Manager at Trivandrum, what prevented the complainant or his son to accompany with him to contact the Regional Manager directly for the replacement of dash Board.
As per records the vehicle was met with accident at 5.30 PM on 17/07/2009 at Kallumthazham,Kilikollor Kollam. Then the vehicle was shifted to Kilikolloor Police Station. PW2, the complainant’s son deposed that 5th opposite party called him at 5PM and informed him that the vehicle met with an accident and further
informed to arrive at Kilikollor Police Station with Licence and Insurance Papers. He had arrived at the Police station without the said documents. He was convinced that he was called to Police Station by 5th opposite party to cause to enter his name as the driver of the vehicle at the time of accident.
It is admitted by PW2 that he was not much experienced in driving.
It is not clear from the GD entry who had driven the vehicle at the time of accident and who had brought the vehicle to the Kilikolloor Police Station. It is also not seen in GD entry and file relating to GD entry , to whom the vehicle was entrusted after recording GD entry. PW7 has deposed that, no case was registered on the basis of the accident . No complaint also was received. No enquiry was conducted by the Police. RC Book or Insurance Papers were not inspected at the time of GD entry . No other record is kept in the police station related to the said vehicle. While in cross examination the learned counsel for opposite party 2,3 and 5 put the question that ‘Police Custody - DÅ hml\w tcJaqeatà ÂImdpf-fp ?
PW7 answered that Crime case FSp¯mte \ÂtIXpf-fp.
The learned counsel put further question
PW7 answered that ‘AÃ’
PW7 further deposed that he was not the person who had recorded this GD entry.
The person to whom the vehicle entrusted is not seen from the records. Normally the possession of the vehicle which met with an accident and had taken into the custody of Police, will be granted only to the registered owner after
