BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

 Date of filing :  09.01.2015

                                                                                            Date of Order : 28.10.2017

PRESENT:

 Shri. Cherian K. Kuraikose,                                   President

 Shri. Sheen Jose,                                                 Member  
Smt. Beena Kumari V.K.                                        Member.

                            CC.No.13/2015

                                   Between

O R D E R

Beena Kumari V.K.   Member 

1)     A brief statement of facts of this complaint is as stated below:

         The complainant Sri. Joshy Lazar, is the owner of INDIGO DICOR XL GRAND car which was manufactured by Tata Motors.  The registration No. of the car is KL-07 BG-9171.  The vehicle was entrusted with the opposite party – Focus Automobile service Ltd., on seeing the emission of black thick smoke from the car on 06.08.2014.  Though the service Advisor of the opposite party had promised to deliver the vehicle after repair on 06.08.2014 itself, it was delivered only after 23 days ie., on 29.08.2014 on payment of Rs.30,688/- towards repair charges.  But, on the return journey the vehicle had stopped abruptly on the road.  On immediately informing the above fact, the opposite party advised the complainant to drive the car at a slow speed for a few days and that thereafter everything would be solved. Accordingly, the complainant had driven the vehicle at slow speed but the emission of thick black smoke remained unsolved.  It is submitted by the complainant that emission of thick black smoke did not subside despite several attempts of the opposite party to cure the defect.  It is submitted that the act of the opposite party in not rectifying the above defect, even after extracting Rs.86,817, tantamounts to deficiency in service and unfair trade practice on the part of the opposite party. Hence this complaint is filed seeking orders of this Forum to refund Rs.86,817/- with 18% interest thereon, to pay Rs.1,00,000/- to the complainant for the monetary loss suffered by the complainant and Rs.25,000/- towards costs of proceedings to the complainant.

2)     Notice was issued to the opposite party from this Forum and the opposite party filed their vakalath in response to the notice received.  But the opposite party did not file their version. 

3)     The issues to be decided in this case are as follows:

(i)      Whether the complainant has proved deficiency in service or unfair trade practice on the part of the opposite party.

(ii)      If so, whether the complainant is entitled to get refund of Rs.86,817/- paid to the opposite party towards repairing charges.

(iii)     Whether the opposite party is liable to compensate the monetary loss, if any, suffered by the complainant.

(iv)     Whether the opposite party is liable to pay costs of the proceedings to the complainant?

4)       The evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and the documentary evidences which were marked as
Exbt. A1 to A9 on the part of the complainant.  The opposite party neither adduced any oral evidence nor any documentary evidence. The commission Report is marked as Exbt. C1. 

5)       Heard the Counsel opposite party on 06.10.2017 and the Counsel for the complainant on 21.10.2017.

6)       Issue Nos. (i) and (ii)

          The complainant is the owner of the car with Registration No.KL-07-BG9171 as evidenced by Exbt. A1 true copy of the Registration Certificate dated 12.12.2007.  It is evident from Exbt. A1 that the vehicle was purchased from the dealer Hyson Motors (P) Ltd., Guruvayoor, TCR.  The Exbt. A2 job sheet No.1676 dated 06.08.2014 revealed that the vehicle was entrusted with the opposite party for repairing various defects like engine overheating including emission of thick black smoke.  The vehicle was delivered to the complainant after repair on 29.08.2014 and an amount of Rs.30,688/- was charged as per Exbt. A3 Invoice issued by the opposite party.  But while returning from the opposite party service Centre the vehicle was abruptly stopped near Varapuzha bridge and the above fact was intimated to the opposite party and the opposite party advised the complainant to drive the vehicle at a lower speed for a few days and thereafter to bring the vehicle to the opposite party – service Centre for re-checking the vehicle.  Accordingly the vehicle was driven at low speed for a few days but the complaint regarding emission of thick black smoke subsisted.  Therefore the vehicle was garaged on 17.09.2014 and was taken delivery on 24.09.2014 after repairs on payment of Rs.8351/- as evidenced by Exbt. A4, again the vehicle was garaged on 07.10.2014 and was taken delivery on 15.10.2014.  As per Exbt.A5 invoice dated 15.10.2014 only minor repair was done for Rs.17/-.  Again the vehicle was garaged o 04.11.2014 as evidenced by Exbt. A6 at 85971 kms for rectifying the complaint regarding emission of excessive smoke.  Exbt.A7 invoice dated 26.11.2014 showed that extensive repairs were done to the subject car and an amount of Rs.45,794/- was paid by the opposite party.  The Exbt.A8 voucher receipt dated 23.12.2014 issued by the opposite party revealed that another amount of Rs.636/- was paid to the opposite party by the complainant for some service done by the opposite party and Exbt. A9 is the true copy of the photograph of the vehicle showing emission of thick black smoke from the vehicle.  The complainant submitted despite several attempts, the opposite party could not rectify the emission of thick black smoke from the vehicle and the complainant deposed as PW1 that the smoke complaint was seen from 84631 kms onwards and Exbt. A2 job card No.1676 dated 06.08.2014 revealed that the subject vehicle was garaged at 84631 kms with the complaint of ‘excess smoke” and various other complaints such as oil leakage, engine overheating, Turboside pressure etc. Exbt. A6 job card No.3046 dated 04.11.2014 also revealed that the subject vehicle was garaged at 85971 kms with the complaint of “excess smoke”.   On both the above occasions various repair works were done by the opposite party and the opposite party charged the complainant for the repair works done.  To find out the real position, an Expert Commissioner was appointed by this Forum vide order dated 30.06.2016 in I.A. No.353/2016.  As per the work memo issued by the complainant and filed on 15.07.2016 the Expert Commissioner was asked to conduct inspection on the following aspects.

1. Emission standards of the vehicle. 
2. Details of works carried out by the opposite party.
3. Present condition of the vehicle regarding mechanical fitness, mileage, pick up vibration and sound, defects in the engine etc.

The Expert Commissioner filed the Commission Report before this Forum which was marked as Exbt. C1.  It is reported that the inspection of the subject vehicle was conducted on 06.08.2016 that the service Centre of the opposite party is having only facility to service changing of oil, filter replacement of spare parts, electrical repairs and ordinary services with available technicians. The machineries for engine overhauling like lathe, drilling machine, vertical cylinder boring machine, crank grinding machine etc are not available with the opposite party and the opposite party outsource the said works to outside works shops having such facilities.  It is reported, that the complaint of ‘engine over heating’ was repaired within 750 kms as per the job sheet card No.3632 dated 22.12.2014 issued by the opposite party and the complainant had not brought the vehicle to the opposite party during the period from 22.12.2014 to 09.01.2015.  It is stated that the diesel flow from injectors was working satisfactorily and with uniform flow in quantity, and the injector washers were found without any leak, the engine room and engine as a compact unit was found in order and oil leakage from turbo charger was found to be of sizable quantity which may result in emission of black smoke and the Air filter was blocked to maximum extent which is found to be the reason for less pick up and less combustion ratio resulting in less delivery of power.  It is further stated that on test drive no vibration or other defects were found.  It is reported that the opposite party is not having any facility for the repair of turbo chargers or related complaints.  The details of outsource of turbocharger repairs were provided to the Expert Commissioner by the opposite party. Thus the invoice stating turbo charger was overhauled and repaired at the cost of Rs.23,400/- cannot be accepted and the continued emission of smoke can be regarded as only arising out of defective turbocharger and allied air mapping sensor.  It is also stated in the Commission Report that Air Max Flow sensor fitted to the vehicle is damaged.  Thus from the Commission Report it is evident that the emission of black thick smoke from the vehicle was due to non-repair or defective repair of turbo charger.  Exbt. A3 Invoice dated 29.08.2014 invoice dated 29.08.2014 of the opposite party shows that an amount of Rs.23,400/- was charged by the opposite party for Turbo O/H and Turbo R/R and the complainant had paid the said amount also.  The complainant has thus proved deficient service offered to him in not doing Turbo O/H or Turbo R/R or defective repair of Turbo charger as claimed by the opposite party.  The opposite party could not produce any evidence to show where the repair work of turbo charger was done as claimed by them.  The allied air mapping sensor was also found defective.  We find the complainant is entitled to get repaired the turbo charger and to replace the allied air mapping sensor by the opposite party at the expense of the opposite party so as to cure the emission of black thick smoke from the vehicle owned by the complainant.  We are not inclined to order refund the entire repair charges of Rs.86,817 as claimed by the complainant instead we direct the opposite party to overhaul and repair the turbocharger and to replace the allied air mapping sensor, good quality at the expense of the opposite party, since the charges for overhauling and repairing the turbo charger had already been collected by the opposite party.  The opposite party is directed to cure the defect of black smoke from the vehicle and to make the vehicle in a road-worthy condition.

Issue No. (iii)

          We find that the complainant had suffered a lot of inconvenience and mental agony due to the deficient service offered by the opposite party, for which he is entitled to get compensation.   We fix the compensation amount of Rs. 25,000/- to be paid to the complainant.

8)       The complainant had spent his valuable time and hard earned money to contest this case before this Forum.  We find that he is entitled to get costs of proceedings of Rs.10,000/-.

9)       In the result, this complaint is allowed in part and we direct as follows:

1.       The opposite party shall overhaul and repair the turbo charger and shall replace the allied air mapping sensor and shall cure the complaint of emission of black smoke at the cost of the opposite party.

2.       The opposite party shall pay Rs.25,000/- to the complainant towards compensation for the inconveniences and mental agony suffered by the complainant.

3.       The opposite party shall also pay Rs.10,000/- towards the costs of the proceedings to the complainant.

The above orders shall be complied with, within 30 days from the date of receipt of this order.

Pronounced in the open Forum on this the 28^th day of October 2017.

Sd/-Beena Kumari V.K. , Member

Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose, Member

                                                              Forwarded by Order

                                                              Senior Superintendent

Date of Despatch        ::

              By Hand      ::

              By Post       ::

                                                          APPENDIX

Complainants Exhibits

Opposite party's Exhibits:    Nil

Depositions:      

PW1                    :         Joshy Lazar

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