THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.14/2013
Dated this the 16th day of March, 2020
(Hon’ble Sri. P.S. Ananthakrishnan, M.A., L.L.B. : President)
Hon’ble Sri. Joseph Mathew, M.A., L.L.B. : Member
Hon’ble Smt. Priya S., BAL, LLB, MBA (HRM) : Member
ORDER
Present: Hon’bleSri. Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
Petitioner’s case is that, attracted by the vast advertisement made by the 1st opposite party through printed and visual medias regarding the specific and peculiar features of Force One SUV cars, he had purchased a car of the said brand bearing No. KL10 AJ 4567, engine No. B61000264 from the 2nd opposite party on 21/11/2011 for Rs.12,00,000/-. But within few months of its use as against their advertisement the car developed many complaints and it became very difficult to use. It is stated that the vehicle showed complaints of coolant leakage, mileage shortage, foul smell of exhaust gas, very low performance of air conditioner, hard to shift the gear, noise of propeller shaft, power steering system not working properly, noise from front suspension, body slant over 3 cm to right rear side, total noise from body, cluster not working properly, seat folding is very hard, grinding noise from under body, disturbing noise from bonnet area etc. etc. He took the vehicle to the 2nd opposite party on several times and they made several attempts to cure the compliants but they failed in their attempts and so the 2nd opposite party suggested to contact the representatives of the 1st opposite party for a solution. As such he contacted the representatives of the 1st opposite party and as per their instructions the vehicle was handed over to the 1st opposite party through the 2nd opposite party on 08/08/2012 for rectifying the entire defects or for replacing the vehicle with a new one. After 3 days the 1st opposite party returned the vehicle saying that all the defects are cured.
But after a few days of its use the same complaints repeated aggressively and so he was forced to approach the opposite parties again. This time the opposite party suggested to approach N Mahalingam& Co. Coimbatore, another authorized dealer and servicecentre of the 1st opposite party and assured that they will rectify the defects and return the vehicle within 3 or 4 days. Though it is 200 kms away from Kozhikode he took the vehicle there and after inspection they also agreed that the vehicle is having the defects reported by the petitioner. Moreover they also noted some other major defects also. After entering all the defects at their register they handed over a hand written copy of the complaints in a white paper. Though the said service centre told him that they will return the vehicle after repair within 10 days, they didn’t do any repair works as told and returned the vehicle without repair on18/10/2012. Thereupon the opposite parties advised him to approachPoomkudy Force,Cochin, another authorized service centre of the 1st opposite party. So he entrusted the vehicle there on 05/11/2012 and they also noted 17 major defects with the vehicle and after repair returned the vehicle on 10/11/2012 with a hand written copy of the repairs done. But this time on the way back to Kozhikode the very same defect repeated. Though he had entrusted the vehicle with the 2nd opposite party and the service centers at Coimbatore and Kochi, all of them failed to rectify the defects permanently and the defects are still persisting. His demand for replacement of the said vehicle with a defect free new one or refund of its purchase price was denied by the opposite parties also.
The petitioner stated that he had purchased the vehicle for a comfortable tension free and easy journey but the repeatedcomplaints of the vehicle spoiled all his expectations and now the vehicle become a task and risky to him. The recurring nature of the complaint within its warranty period itself is nothing but due its manufacturing defects and so the opposite parties are liable either to replace the vehicle with a new one or to refund its purchase price but even after many requests the opposite parties are not ready to comply his demands. The sale of a defective vehicle for such a high price is unfair trade practice and the failure to rectify its complaints amounts to deficiency in service on the part of the opposite parties. The said act of the opposite parties caused heavy financial loss, mental stress and strain, tensionand such other inconveniences to him. Hence this petition is filed to direct the opposite parties either to replace the said vehicle with a new one or to refund its purchase price and to pay him Rs.5,00,000/- as compensation for his sufferings and also the litigation expenses.
The 1stopposite party in their version admitted the purchase of the ForceOne SUV vehicle by the petitioner as stated in the petition but they denied the allegations that the vehicle developed many manufacturing defects within few days of its purchase as false, baseless and misconceived. It is contented that as the manufacturer of the vehicle they have their own well established quality control procedure to check the manufacturing process and the final product. The vehicle which passes the rigid quality control test are only cleared for delivering to sale department and therefore the vehicle sold to the petitioner wasin good condition without any manufacturingdefects. It is also contended that the relationship between them and the 2nd opposite party is principal to principal basis and not principal and agent basis and so there is no consumer relationship between them and the petitioner and so this petition is not maintainable also.
It is also stated that, the complaints reported are maintenance related and due to operational problem which may occur due to many reasons beyond the control of any manufacturer or dealer like lack of proper maintenance, driving habits, road condition, weight of the load put on the vehicle etc. and it cannot be termed as manufacturing defect.A manufacturing defect is a fundamental basic defect or structural defect which creeps while manufacturing the vehicle and the alleged complaints of the petitioner’s vehicle was not of such nature. As per Term No. 2 of the warranty condition, the warranty is limited to the repairing of the vehicle and replacement of parts free of charge in genuine cases. Moreover as per Term 8 of warranty condition they are not liable for the consequential damages or losses.
It is further stated that all the alleged complaints are the result of mis-handling of the vehicle and improper maintenance by the petitioner and so he had violated the condition No. 9 of warranty term, even then they have provided good service to the vehicle, done proper repair works and replaced the affected parts whenever the petitioner brought the vehicle for service. Though the petitioner alleged many defects with the vehicle he had driven the vehicle more than 50000 km as on 30/04/2013 and this itself speaks and established the roadworthiness of the vehicle. The petitioner had taken the vehicle at Coimbatore and Kochi at his own will and not as per their direction as alleged. There is no manufacturing defects with the vehicle and the vehicle is still running in good condition and so no question of replacement or refund of its purchase price arose. Since they have attended all the concerns of the petitioner properly and timely no deficiency in service can be attributed on them. No loss, mental agony or any inconvenienceoccurred to the petitioner due to the purchase of the said vehicle or due to any of their acts and this petition is filed with malafide intention to make unjust enrichment at their cost. Hence prayed to dismiss the petitionwith cost to them.
The 2nd opposite partyappeared but didn’t file version. Hence the 2nd opposite party set ex-parte.
Evidence consists of the affidavits filed by the petitioner and the 1st opposite party, Ext. A1 to A39, B1 and B2, C1 and depositions of PW1, RW1 and CW1.
The specific case of the petitioner is that the vehicle Force One SUV manufactured by the 1stopposite party and sold to him by the 2nd opposite party developed many manufacturing defects within the warranty period itself and even after repeated repairs and replacement of certain parts the defects are still persisting and so the opposite parties are bound to replace the vehicle with a new one or to refund its purchase price with compensation for his sufferings. He produced Ext. A1 to A39 documents to prove his case. As per Ext. A2 servicecoupon book the vehicle is having 3 years warranty. It also shows that all the free services of the vehicle has been done within the stipulated time period. Ext. A3, A4, A5, A6, A7 and A8 are the work invoicesissued to the petitioner by the 2nd opposite party dated 17/01/2012, 02/04/2012, 04/05/2012, 11/05/2012, 09/06/2012 and 22/06/2012 respectively regarding the complaints reported and the repair woks done during this period. Thus Ext.s A3 to A8 shows that the vehicle was having the alleged complaints within the warranty period itself. Ext. A9 to A27 are the bills for the purchase of parts of the vehicle for the repair works. Ext. A28 is the receipt issued by Poomkudy Force Kochi dated 06/11/2012 for the reported complaints of the vehicle and A29 is the service bill issued by them dated 10/11/2012 for the repair works done. Ext. A28 also shows that even after repeated services and repair works as per Ext.sA3 to A8 most of the complaints are persisted as on 06/11/2012 also.
In order to ascertain the condition of the vehicle Sri. K. Sureshan, Assistant Executive Engineer, PWD Mechanical Deivison was appointed as expert commission and after inspection of the vehicle the expert submitted his report dated 16/04/2015 and was marked as Ext. C1. In Ext. C1 it is reported that the vehicle has covered 79220 kms as on date. All the complaints alleged by the petitioner in his petition is reported as existing except the complaints regarding gear shifting and foul smell from exhaust. Thus Ext. C1 also supports the allegation of the petitioner as true and correct. The 1st opposite party filed objection to Ext. C1 report on the ground that the commission appointed was not competent orqualified to inspect the vehicle and the report is not based on any proper and scientific examination of the vehicle from a well-equipped service centre. The expert is examined as CW1. In chief CW1 deposed that he is a diploma holder in Mechanical Engineering. In cross he deposed that from 1995 onwards he was inspecting and reporting complaints of vehicle. Thisstatement shows that Sri. Sureshan is qualified and competent to inspect and file report about the complaints of the vehicle. So the objection raised by the opposite party in this regard is found unsustainable. Moreover the reported complaints need not warrant any scientific examination and an expert like CW1 can find out such complaints from his experience.
According tothe 1st opposite party the reported complaints are only minor complaints and not due to any manufacturing defects. It happens due to lack of proper maintenance, mishandling of the vehicle, improper driving etc. etc. The petitioner was cross examined as PW1. In cross PW1 stated that he is having 25 years of driving experience. Ext. A2 service book also shows that all the free services of the vehicle has been done within in the stipulated time. Sri. JyothiBasu, the Senior Manager of the 1st opposite party was examined as RW1. In cross RW1 admitted that the said vehicle is a sport utility vehicle. He also deposed that though SUVs are not an off-road vehicle, high ground clearance, high engine power, rigid suspension etc. are the special features of SUVs. So the contention of the opposite parties that the defects are occurred due to improper driving, rough use and lack of proper maintenance of the vehicle etc. is not acceptable or admissible.
So from the evidence it is found that, the vehicle had developed many complaints within the warranty period itself. The vehicle is purchased on 21/11/2011 and this petition is seen filed on 08/01/2013 ie. within the warranty period itself. It also shows the genuineness of the allegation made by the petitioner. The opposite parties raised another contentions that the petitioner had used the vehicle extensively. According to them had it been suffering from any manufacturing defect, the vehicle could not have run this far. It is true that the vehicle had covered 79220 kms as on 07/04/2015 as per Ext. C1. The opposite party had repaired the vehicle many times but the same complaints repeated. The request of the petitioner either to replace the vehicle or to refund its purchase price was denied by the opposite parties also. Then what is the alternative to the petitioner but to run the vehicle. So the extensive use of the vehicledoesn’t mean that there was no complaint with the vehicle and the petitioner had used the same smoothly with pleasure. So we didn’t find any meaning in the contention of the opposite party. A person is purchasing a vehicle after paying such a high price for a comfort, tension free and peaceful use of the vehicle but the frequent complaints and extensiverepairs of the vehicle that too within warranty period itself will definitely cause much mental agony, inconvenience, financial loss and other hardships to the user of the vehicle. Here in this case though the vehicle is having no engine complaint, there was many complaints in its body and this caused much discomfort and other hardships to the petitioner. The repeated nature of the body complaint shows that it was inherent in nature and so one cannot blame the service centre for not repairing the complaints permanently. So we are of the view that as the manufacturer there is unfair trade practice on the part of the 1st opposite party in selling the defective vehicle to the petitioner and thereby caused hardships to him.So the 1st opposite party is liable to compensate the petitioner reasonably. Since the vehicle had covered more than 80000kms by this time we are not ordering replacement of the vehicle or refund of its purchase price.
In the result this petition is partly allowed and the following order is passed.
The 1st op is ordered to pay Rs.4,00,000/- (Rupees four lakhs only)to the petitioner as compensation for his suffering and Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings (which including commission batta) within 60 days from the date of receipt of this order.
Dated this the 16thday of March, 2020
Date of filing: 11/01/2013
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of Certificate of Registration
A2. Service Coupon Book
A3. Work invoice dated 17/01/2012
A4. Work invoice dated 02/04/2012
A5. Work invoice dated 04/05/2012
A6. Work invoice dated 11/05/2012
A7. Work invoice dated 09/06/2012
A8. Work invoice dated 20/06/2012
A9. Cash Bill dated 21/03/2012
A10. Cash Bill dated 10/05/2012
A11. Cash Bill dated 12/05/2012
A12. Cash Bill dated 26/06/2012 (2 in no. series)
A13. Cash Bill dated 18/10/2012
A14. Cash bill dated 15/12/2012 (2 in no. series)
A15. Cash Bill dated 25/02/2012 (2 in no. series)
A16. Cash bill dated 18/04/2013 (2 in no. series)
A17. Cash bill dated 10/06/2013 (2 in no. series)
A18. Cash bill dated 31/07/2013
A19. Cash bill dated 01/08/2013 (2 in no. series)
A20. Cash bill dated 31/10/2013
A21. Cash bill dated 31/10/2013
A22. Cash bill dated 29/01/2014
A23. Cash bill dated 13/03/2014 (2 in no. series)
A24. Cash bill dated 21/04/2014
A25. Cash bill dated 24/06/2014 (2 in no. series)
A26. Cash bill dated 14/10/2014 (3 in no. series)
A27. Cash bill dated 15/11/2014 (2 in no. series)
A28. Receipt issued by Poomkudy Force Kochi
A29. Service bill issued by Poomkudy Force Kochi
A30. Copy of e-mail (6 in no. series)
A31. Copy of letter sent to 1st opposite party
A32. Copy of letter sent to 2nd opposite party
A33. Copy of e-mail
A34. Copy of e-mail
A35. Copy of e-mail
A36. Copy of e-mail
A37. Copy of e-mail
A38. Copy of e-mail
A39. Copy of e-mail
Documents exhibited for the opposite party:
B1. Authority letter
B2. Copy of terms and condition of warranty for Force One
Witness examined for the complainant:
PW1. Abdul Hameed (Complainant)
CW1. Sureshan, Sreyas, Vaniyanchal, Eachur P.O., Kannur 670 591
C1. Commission report
Witness examined for the opposite party:
RW1. JyothiBasu P. (Service Manager of 1stOpposite party)
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
