IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

Date of filing : 07/07/2016

Date of order : 30.11.2022

PRESENT:

Shri.D.B.Binu President

Shri. V.Ramachandran Member

Smt. Sreevidhia T.N Member

CC.No.396/2016

COMPLAINANT

Ajaykumar T.V., S/o.T.R.Vasu, PCRA 81, P.C.Road, Kaloor, Kochi-682 017

(By Adv.A.Jayasankar, Sree Radmam, Ponoth Road, Kaloor, Kochi-17)

Vs.

OPPOSITE PARTIES

1) M/s.Ford India Pvt. Ltd., SP Koil Post, Chengal Pettu, Chennai-603 204. Rep.by its Managing Director and Chief Executive Office, Sri. Nigel Harris.

(o.p 1 rep. by Adv.Mathews. K.Uthupachan, Adv.Terry.V.James, Adv.Sharan Shahier, M/s.Sharan Shahier, 42/1775, St.Benedict Road, Near Holy Cross Convent, Ernakulam, Cochin-682 018)

2) The Kerala Cars Pvt. Ltd., 508 A, Illikkattu Buildings, Edappally, Cochin. Rep. by General Manager, Sri.John I.Ramanattu.

(Op.2 rep. by Adv.P.Fazil, Adv.Jayasree Manoj, Adv.Saju Thaliath, Adv.V.S.Sreejith, Adv.Jithin Paul Varghese, M/s.Lawyers United, 1^st Floor, No.68/1697, St.Benedict Road, Ernakulam, Pin-682 018)

F I N A L O R D E R

V.Ramachandran, Member

1) A brief history of the complaint is as stated below:

The complainant is a practicing lawyer and the 1^st opposite party is the manufacturer of the motor cars and the 2^nd opposite party is the dealer of the 1^st opposite party. The complainant purchased a Ford Fiesta Motor car on 24.12.2009 from the 2^nd opposite party manufactured by the 1^st opposite party, on payment of Rs.6,55,331/-. The car was of 2009 year model Silver coloured Sedan, and was assigned with the registration No.KL-07- BM 4653. The complainant further states that the car was regularly serviced and neatly maintained as per the standards prescribed by the manufacturer. The services were being carried out through the authorized service centre of the 2^nd opposite party.

On 02.07.2015 at about 3.00 pm the complainant had parked his car at the Kerala High Court Advocates’ parking area in the High Court compound and the complainant left to attend his work inside the court. Within 10 minutes after parking the car emission of smoke and fire came out of the bonnet of the car. Seeing the car being caught fire, Policemen, Security personnel and the advocates present at the High Court premises, sprang into action and put out the fire after taking a lot of effort. The complainant informed the 2^nd opposite party and men of the 2^nd opposite party reached the spot after 1½ hours only. Thereafter the car was towed into the service centre of the 2^nd opposite party for repair works. The incident occurred in the car was reported in print and electronic media. The complainant alleges that the incident was reported to the customer care division of the 1^st opposite party. The customer care division personnel of the 1^st and 2^nd opposite parties did not state any reason for the emission of the fire from the car. The service personnel of the 2^nd opposite party personally intimated the complainant that similar instances of the car manufactured by the 1^st opposite party were occurred earlier also. The 2^nd opposite party informed the complainant that it would take approximately 3 weeks to repair the car. Due to this reason the complainant requested the 2^nd opposite party to provide the spare car for his official and personal use, but they ignored the grievances of the complainant. In the above circumstance, the complainant was compelled to send a letter to the 1^st opposite party on 18.07.2015 stating that his car was caught fire which is only due to the manufacturing defect which was driven only 38000 kms. The complainant then intimated to the 1^st opposite party that he was virtually scared to drive the car due to fear of recurrence of the incident while in motion of driving and requested the 1^st opposite party to provide a new car in replacement of the damaged car. The 1^st opposite party had replied a letter to the complainant through their advocates stating that root cause of the above thermal event was due to the leakage of PAS hose and raising an allegation that the complainant accepted the vehicle back on 23.07.2015 with full satisfaction. The complainant denied the said statements of the opposite party. The complainant firmly stated that the irresistible reason for the car which caught the fire was only due to the manufacturing defects of the car. The complainant states that he had serviced his car with the 2^nd opposite party service centre twice in January 2015 and necessary repairs and replacement were done by them charging an amount of Rs.29,417/- vide bill dated 12.01.2015 and an another amount of Rs.16,495/- vide bill dated 28.01.2015, totaling into a substantial amount of Rs.45,912/-. The vehicle report card issued by the 2^nd opposite party dated 28.01.2015 states that the complainant have to do the next service only on 29.07.2015 or attains 43874 kms whichever is earlier. The complainant argues that it is well established that the above thermal incident occurred within the period stipulated by the 2^nd opposite party for the next service or on reaching 43874 kms at the time of occurrence of the incident and the car was run only 37666 kms. So the complainant believes that the car on caught fire either due to the manufacturing defect or due to imperfect service on the part of the 2^nd opposite party.

The total amount of repair charges of the car was Rs.74,641/-out of which an amount of Rs.39,921/- was the insurance amount of the complainant. The complainant had paid Rs.17,041/- towards repair charges and after that the car was handed over back to the complainant by the opposite party on 23.07.2015. Further the complainant states that he was very much afraid of driving the car at any time. The complainant also states that he had spent an amount of Rs.25,000/- towards taxi charges for his travel from 03.07.2015 to 23.07.2015. After getting the car repaired the complainant states that he had spent a lot of money on further repairing on 02.07.2015, 22.07.2015, 02.11.2015 etc…. Thus, the complainant had paid the total amount Rs.42,334/- to the 2^nd opposite party after the above fire incident.

The complainant hence decided to sell the car back to the 2^nd opposite party’s used car division on 12.01.2016. The complainant sold the car to the 2^nd opposite party for a sum of of Rs.2,17,000/-. The value of the car as per the insurance policy issued by the New India Assurance Company Ltd was shown as Rs.3,40,000/- . Thus the complainant had to bear lot of inconvenience in this regard. The complainant firmly believes that the incident had occurred due to manufacturing defect or due to improper service from the side of the 2^nd opposite party. The complainant filed this complaint praying for issuing direction to the opposite party to pay an amount of of Rs..5,00,000/- as compensation for the deficiency of service and unfair trade practice from the side of the opposite party. The complainant also sought for an amount of Rs.5,00,000/- for the mental agony and hardships suffered by the complainant from the opposite parties among other reliefs.

2) Notice

Upon notice from this Commission, the opposite parties 1 and 2 appeared and filed their version.

3) Version of the 1^st opposite party

In the version of the opposite party the 1^st opposite party states that the complaint is not maintainable before the Commission as per Section 2 (f) (g) and (r) since there is no defect, deficiency of service and unfair trade practice is occurred from the part of answering the opposite party. Further the opposite party 1 denied the averments in the complaint stating that the 1^st opposite party and the 2^nd opposite party which in clear and unambiguous terms provides that the legal relationship between the aforesaid parties is on ‘principal to principal basis’. The 1^st and 2^nd opposite parties are separate legal entities to operate independently. Therefore, the acts or omissions of one party cannot be regarded as that of the others and the liability of the same can also not be transferred. The 1^st opposite party further states that the complainant had failed to disclose that the warranty on the subject car had already expired as the subject car is over 5 years old and has travelled over 36,000 km. The warranty period of the car purchased by the complainant lasted for 2 years or 40,000 km whichever is earlier. Further the subject car had been driven in a very rash and negligent manner right from its purchase due to which it suffered several external impacts. As a result, the car had undergone several body repair work at numerous occasions from the 2^nd opposite party. The vehicle repair history of the subject car shows that it had undergone denting and painting on 28.04.2010 which was just 4 months from date of purchase. The negligence and rash driving of the complainant continued even thereafter and that the subject car was constantly being subjected to external impacts and denting and painting woks had to be carried out. Undisputedly and as specifically stated in the owner’s manual the warranty on the subject car expires as soon as it is subjected to any road traffic accident or external impact. The obligations of the opposite party arises in the case is that the subjected car is within the warranty period and its manufacturing defect is detected therein during the same time. Since the warranty of the subject car has already expired the 1^st opposite party is neither obligated nor liable to adhere to any demands of the complainant. Moreover, the 1^st opposite party forwarded a discount to the complainant on the total bill as a good will gesture. The gist of the version of the 1^st opposite party is that the 1^st opposite party is not responsible to competent the loss of the complainant, that the complainant had not carried out the services of the disputed vehicle from 21.07.2010 with the 2^nd opposite party upto 10.01.2014 and absolutely there is no deficiency of service and unfair trade practice occurred from the side of the 1^st opposite party.

4) Version of the 2^nd opposite party.

The gist of the version of the 2^nd opposite party is that the complainant has no case that the vehicle purchased from the 2^nd opposite party is a substandard one or does not come within the purview of its specifications or quality. The sole grievance of the complainant is that the opposite party had failed to do proper services and maintenance of the car when the car was entrusted to the 2^nd opposite party for carrying out regular service. The 2^nd opposite party stated that the complaint of the complainant is baseless, utterly false, and deceitful, hence all allegations were denied. The 2^nd opposite party stated that they had immediately taken all measures to honour all steps when the information relating to the incident was intimated to them. They had deputed their service department team for assistance and taken detailed report along with photographs. The technical team of the 1^st opposite party after detailed analysis and examination had concluded that the root cause of the above thermal event was due to leakage PAS hose and the same was duly conveyed to the complainant. The 2^nd opposite party had carried out proper service and maintenance of the car when the car was entrusted to the service centre and the allegation that the deficiency in service carried out by the 2^nd opposite party is the cause of thermal event is not correct. The 2^nd opposite party had thoroughly examined the vehicle and carried out necessary maintenance repairs and services to the vehicle as per the Ford Service Manual which is very much evident from the service report produced by the complainant.

The sole reason for cause of thermal event identified by the 1^st opposite party is the leakage of PAS hose. Such leakage had not been seen at the time of service done in 2015 January. The leakage had an impact on the power steering of the car and would have been evident to the person who drives the vehicle. In such case, no stiffness in the power steering was noted at the time of service done during January 2015. The price of 2009 Ford Fiesta would only fetch an amount between Rs.1,50,000/- to Rs.1,80,000/- , however, the car of the complainant was purchased by the 2^nd opposite party for a price of Rs.2,10,000/- for the reason that all the recent required service were carried out by the 2^nd opposite party .

5) Evidence

The complainant had produced documentary evidences which were marked as Exbt.A1 and Exbt.A2. There is no evidences from the side of the opposite party.

The main contention raised by the 1^st opposite party in their version is that the complaint is not maintainable due to the reason that the complainant has failed to show defects or deficiency in service or unfair trade practice under Section 2 (f) (g) (r) of the Consumer Protection Act, 1986.. The Commission on verification of the contents of the complaint along with the evidences produced by the complainant reached the inference that there is prima facie case of deficiency of service, defect, unfair trade practice etc are there in the case of the complainant. Therefore, the stand of the opposite party that the complaint is not maintainable due to the above reason cannot be accepted and therefore, the complaint is maintainable. Further the question of maintainability of any such aspect of unfair trade practice or deficiency of service regarding from the part of the 1^st opposite party is to be determined on the basis of the agreement and conditions of relationship on principal to principal basis shall also be determined on the basis of merit and role of the opposite parties. The second main contention of the 1^st opposite party is that the complainant had not disclosed the warranty of the subject car had expired as per the subject car is over 5 years old and had travelled over 36000 km. The manufacturer stated that he do not have any responsibility over the car which is sold to the consumer if the warranty is over. That means manufacturer either intentionally forgest or purposefully suppressing the fact that the car was purchased at a very huge price. The consumer shall use the car only for short span as is being decided by him on fatal warranty which last only for a short time. It is to be pointed out this time that the warranty of ‘goods’ is not a period of its life. Warranty obviously makes the manufacturer on whom warrants that this particular good is having a coverage for guard of the product or good is for particular time. This shall obviously be the warranty card given only for a short period. But, the life of a product or good shall be for much longer period. The manufacturer cannot simply wash his hands by saying that “we are in no way responsible since the warranty period is over” cannot be blankly accepted, especially in the case, it is unforeseen, unpredictable, and not happened due to the inertia or laxity from the part of the consumer like that of thermal burst of a car which can not be attributed under the conditions of the warranty which comes under the purview of moral or legal or ethical obligations of manufacturer or other responsible party like the service provider if they had not exercised several care while on carryout proper services etc.. In the instant case, the 1^st opposite party cannot wash their hands simply by saying that warranty of the car had expired and had run over 36,000 km and therefore the 1^st opposite party is no way responsible for making any compensation. The reason for thermal burst is presumed to be due to the rash driving of the complainant and negligent manner right from its purchase has not been substantiated by the 1^st opposite party with any records or evidences as can be seen in the order sheet which reads on 21.04.2018 “opposite parties not present. No evidence for opposite parties. Evidence closed”. Hence opposite party 1 cannot evade responsibility for the thermal burst that occurred in the complainant’s car which is further substantiated in the statement of the 2^nd opposite party in their version page 3 para 6 that “technical wing of the 1^st opposite party after detailed analysis and examination had concluded that the root cause of the above thermal event was due to the leakage of PAS hose and the same was duly conveyed the supervision and instruction of the technical team of the 1^st opposite party for the damage caused to the car is not an ordinary one that required urgent attention of the manufacturer.

As regards the version of the 2^nd opposite party states that the reason for the thermal burst is due to the leakage of PAS hose which had not existed during the time of service.

6) On analysis of the above, the main points to be analyzed in this case are as follows:

1) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?

2) If so, whether the complainant is entitled to get any reliefs from the side of the opposite parties?

3) Costs of the proceedings if any?

Point No.(i)

As regards point No. (i) the incident of thermal burst that occurred in the car is either due to improper service or due to the manufacturing defect. The car is not purchased by the consumer for use within the warranty period only and the manufacturer never says that the warranty period of a vehicle is the life period of the vehicle which is clearly unfair trade practice. Here the thermal burst occurred in car of the complainant due to a reason which is best known to the 1^st opposite party as is revealed from the version of the 2^nd opposite party is the technical wing of the 1^st opposite party after the detailed analysis and examination of the vehicle had concluded that root cause of the above thermal burst is due to the leakage of PAS hose. The vehicle was repaired under the supervision and instruction of the technical team of the 1^st opposite party for the damage caused to the car. Another insisted factor is that the manufacturer himself had given a subsidiary rate or discount to the complainant for the repair work of the car which was done in the service centre of the 2^nd opposite party.

In this case, obviously, no expert opinion is necessary that the 2^nd opposite party very clearly states that the reason for the thermal burst was due to the leakage in the PAS hose which was ascertained by the technical wing of the 1^st opposite party after detailed analysis and examination. It is not a consumer generated issue. Hence the Commission reaches the conclusion that the complainant had clearly proved deficiency of service and unfair trade practice from the opposite party and hence the opposite party is liable to compensate the complainant and we are issuing the following orders.

1) The opposite party 1 shall pay an amount of Rs.1,00,000/- as compensation to the complainant for deficiency in service and unfair trade practice caused to the complainant.

2) The 1^st and 2^nd opposite parties shall jointly and severally pay an amount of Rs.50,000/- to the complainant for the mental agony and hardships suffered by the complainant.

3) The 1^st and 2^nd opposite parties shall pay an amount of Rs.10,000/- to the complainant as the cost of the proceedings.

Pronounced in the open Commission this the 30^th day of November 2022.

Sd/-

V.Ramachandran, Member

Sd/-

D.B.Binu, President

Sd/-

Sreevidhia T.N., Member

Forwarded by Order

Assistant Registrar

APPENDIX

Complainants Exhibits

Opposite party’s Exhibits : Nil

Assistant Registrar

CC.No.396/2016

Order dated .30.11.2022