THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.438/2016
Dated this the 2nd day of November, 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
Petitioner’s case is that, as per sale letter agreement given by the registered owner of the car vide Reg. No. KL-58E3559 TATA INDICA VISTA, he was using the car for the last 4 years. This vehicle was completely damaged in an accident occurred at Manathavady on 16/09/2015. The work shoppers at Wayanad and Kannur assured him that they will repair the vehicle in a good running condition like a new one for an amount of Rs.1.25 lakhs. But when he contacted the opposite party, they told that they are having tie-up with the Insurance Company and they will do the works in a very good manner. Believing their words he towed the car to the opposite party’s service centre after spending Rs.5,000/- for that. He paid Rs.75,000/- as advance and thereafter Rs.25,000/- each in two installments to the opposite party. As informed by the opposite party that all the works are completed, he took delivery of the vehicle during the end of December, 2015. But on the next day itself it is convinced that the opposite party has not acted as promised and the works done was not proper or in good condition.
It is alleged that the colour of the repainted exterior body was different at various parts. The bonnet setting was incorrect and large gap in the assembly. The A/c was not properly functioning and there was no cooling effect, but the engine was consuming more fuel while the A/c is on. After 2000 kms of running the A/c gas was fully exhausted and hence he has to spend Rs.2,500/- for refilling the A/c gas. The fuel pump started leakage which caused loss of fuel. The battery had fallen down from the running vehicle due to non-fixing of its clamp. Likewise he has to spend another Rs.2,000/- for engine set alignment due to the faulty engine alignment done by the opposite party. Water was leaking inside to the vehicle while water servicing. Due to the defect of the gear box, the wiring was completely damaged within 2500kms of running and he was forced to spend Rs.14,700/- in a workshop at Manathavady. Moreover he had spent an additional amount of Rs.16,000/- for changing center lock, floor mat, seat cover etc.
Though the opposite party claimed that they are having tie-up with the Insurance Company, they have collected Rs.1.50 lakhs from him for delivering the vehicle. Till date they have not disclosed how much amount they have received from the Insurance Company. Later on repeated contacts the opposite party agreed to repay Rs.9,000/- but it was not paid. The petitioner further stated that before the accident the vehicle was getting 22 kms mileage per litter fuel and after the repair works now he is getting only 14 kms per litter. The front glass is also defective and so it is very difficult to ride the vehicle while raining and during night times. As the promised amount was not paid, he could not transfer the R.C. into his name after closing the dues. All these problems happened only because of the defective repair works of the opposite party and as a result he was forced to spend a total amount of Rs.3.35 lakhs in this regard. This is deficiency in service on the part of the opposite party and this caused much mental pain and other inconvenience to him. Hence this petition is filed to direct the opposite party to deliver him a new car after taking back the defective one and also cost of the proceedings.
The opposite party appeared but didn’t file version. Hence they set ex-parte.
The petitioner filed affidavit in lieu of his petition and produced documents in support of his averments and these documents are marked as Ext. A1 to A7. Ext. A1 is the copy of Tax invoice for Rs.14,539/- dated 24/12/2015. Ext. A1(a) is the copy of Tax invoice dated 30/11/2015 for Rs.2,27,236/-, Ext. A2 is the copy of Job Sheet issued by the opposite party dated 28/01/2016, Ext. A3 is the copy of Cash bill issued from Car A/c. work, Mukhif Garage dated 21/02/2016 for Rs.1,400/-, Ext. A4 is the copy of cash bill dated 04/04/2016 issued from the Car A/c Work Mukhif Garage for Rs.1,400/- Ext. A5 is copy of Car A/c Work Mukhif Garage dated 15/07/2016 for Rs.1,550/-, Ext. A6 is the copy of cash bill dated 26/10/2016 issued from Diesel World Thalassery for Rs.1,100/- and Ext. A7 is the copy of bill from J.M. Motors, Mananthavady dated 21/06/2017 for Rs.23,000/-.
For ascertaining the exact condition of the disputed vehicle Dr. K.K. Ramachandran, Associate Professor, Mechanical Engineering, Govt. Engineering College Kozhikode was appointed as expert commissioner and after inspection he filed report on 01/06/2017 and was marked as Ext. C1. In Ext. C1 report it is stated that “No such very distinguishable colour change was observed at different parts of the car body as alleged. But it is reported that the colour was faded out over the body surface and this is very much abnormal and this is either because of the poor quality paint and other consumable used for painting or due to the poor painting procedure followed for repainting the vehicle. It is further reported that the bonnet was having visible misalignment in its assembly. In a factory build bonnet assemble of a car, the gap between bonnet and extreme upper edge of head light assemble is about 4 mm and the gap is uniform on both right and left sides. But in the disputed vehicle the gap between extreme upper edge of head light assembly and the bonnet is about 10mm and it is about 6mm at the left. So it is clear that the bonnet assembly is not re-worked with enough workmanship and quality.
Regarding the Air conditioner, it is reported that in the running test it is found that the cooling effect produced by the A/c is very low but the engine was getting loaded while switching on the A/c. The problem was leakage of refrigerant (A/c gas). So at regular intervals, refrigerant re-changing needed to be carried out to maintain the A/c in working condition. The expert observed that the opposite party had failed to carryout assessment of the problems of the A/c. system and its reconditioning perfectly. As the problem was recurring in nature and it was emanated immediately after the recondition of the A/c, the petitioner has to spend huge amount for the A/c gas refilling. It is also reported that at the time of inspection no fuel leakage was noticed as alleged by the petitioner, and if any leakage existing it was not due to any major problem but due to the incompetency of the opposite party in rectifying the leakage problem. At the time of inspection the battery was correctly clamped and well in position. If it had fallen down as stated by the petitioner, it further confirms the negligence of the opposite party in attending the works. The diesel engine was working somewhat satisfactorily but the vibration of the engine was slightly excessive. It is because of the faulty engine mounting or misalignment indrives and unbalance resulted from damages in the accident.
It is also reported that the front left door alignment was not correct. Even after closing the door, there is significant gap between the door and pillar. The top rear glass frame was projecting out from its seat. This clearly shows that the opposite party has not correctly assessed the damage in the accident and has not carried out the recondition works accordingly. It is submitted that he could not identify any damage with regard to the gear box as alleged by the petitioner.
It is also reported that the front glass was thoroughly cleaned using detergent solution but the small air bubbles like appearance in the glass were retained as such. It is found that the bubble like formations are at the interface of glass laminations inside the glass and it cannot be removed by any sort of cleaning. Driving the car with the present front glass during the raining or at the evening hours will be dangerous.
As per the Ext. C1 commission report it is found that some defects are still persisting in the vehicle as pointed out by the petitioner. It shows that the opposite party has not showed reasonable care or caution in repairing the vehicle. They have repaired the vehicle negligently and carelessly, which resulted huge financial loss to the petitioner. This is deficiency in service on their part. The opposite party has not filed any version or adduced any evidence to disprove the averments of the petitioner or the findings in the expert commission report Ext. C1. Hence the case of the petitioner stands unchallenged and proved.
The petitioner demanded replacement of the defective vehicle with a new one but as per Ext. C1 report it is found that the defects are not so serious or non-repairable in order to order replacement. It can be cured by expert workers in a good workshop. One thing the petitioner is to be remembered is that any how the said vehicle is a completely damaged one in an accident and so repairing it like a perfect new one is not at all possible. As there is gross negligence and carelessness on the part of the opposite party in repairing the vehicle, they are liable to compensate the petitioner reasonably.
Considering the facts stated and evidence on record, the following order is passed.
The opposite party is ordered to pay Rs.1,25,000/- (Rupees one lakh Twenty five thousand only) to the petitioner for curing the defects in the repair works done by the opposite party in the vehicle and Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings which includes the commission batta within 30 days from the date of receipt of this order. Failing which the amount will carry 9% interest from the date of default till payment.
Dated this the 2nd day of November, 2017
Date of filing: 05/10/2016
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of Tax invoice for Rs.14,539/- dated 24/12/2015
A1(a). Copy of Tax invoice dated 30/11/2015 for Rs.2,27,236/-
A2. Copy of Job Sheet issued by the opposite party dated 28/01/2016
A3. Copy of Cash bill issued from Car A/c. work, Mukhif Garage dated 21/02/2016
A4. Copy of Cash bill issued from Car A/c. work, Mukhif Garage dated 04/04//2016
A5. Copy of Cash bill issued from Car A/c. work, Mukhif Garage dated 15/07/2016
A6. Copy of cash bill dated 26/10/2016 issued from Diesel World Thalassery
A7. Copy of bill from J.M. Motors, Mananthavady dated 21/06/2017
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
C1. Commission Report
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
