SMT. RAVI SUSHA  : PRESIDENT

       Complainant filed this complaint  under Sec.12 of the Consumer Protection Act 1986 for getting a direction  to pay  Rs. 761298/- being the cost of the vehicle, Rs.35000/- being the  cost of the accessories besides 1,00,000/- as compensation for the loss of income  sustained by the complainant and Rs.10,000/- as compensation for mental agony undergone to the complainant against the deficiency in service  and unfair trade practice  of the opposite parties.

   Short facts of the complaint:-

      The complainant  is an unemployed youth seeking self –employment,  being a driver by profession he proposed to purchase a vehicle  to be used as a  tourist taxi to earn his livelihood.  On 27/9/2013 he purchased a new Chevrolet  Enjoy Diesel 7CLT TCDI vehicle from German Motors (2^nd OP) the authorized agent of General Motors India Pvt Ltd   Ist OP herein .  The price of the  vehicle was Rs.761298/- with Rs.35000/- for extra fittings.  The  said vehicle is hypothecated  to Magma Fincorp Ltd Cochin.  Unfortunately the vehicle showed defects within few weeks of its purchase.  It had to be taken to 2^nd OP for repairs.  Within  a period of less than a year the vehicle had to be placed for repairs on several  occasions, which  fact alone  premafacie  shows the vehicle had  certain defects.  At last when the defect continued  2^nd OP has agreed to change the  engine of the vehicle and took the vehicle from the complainant on 9/9/2015 with a promise to return the vehicle  after changing the engine with a new one within a month.  But  even after the expiry  of  more than  1 ½ months, the vehicle is not  delivered.  Since then the vehicle remained in the custody to that opposite party.  As a result the complainant could not pay the loan amount to the finance company.  He claimed to refund the price of the vehicle and cost of other accessories spent by the complaint, which , however, found no response.  Complainant issued a registered notice to opposite parties requesting them to pay the value of the vehicle with compensation  Even though the lawyer notice was received by Ops, they did not even sent any reply.   Hence the complainant filed this complaint against  Ops for getting relief mentioned in the complaint. 

     General Motors India and German Motors entered appearance and only 1^st OP contested the claim.  General Motors Indi filed version.  2^nd OP German motors not filed  version. 1^st opposite party pleaded that since the complainant has purchased the vehicle for business purpose, he  become ineligible to invoke the jurisdiction of this Forum.1st Op further denied that the vehicle within few weeks of purchase  started  encountering defects.  The complainant should reminisce that he had only reported for the periodical servicing  with the 2^nd OP and never choose to come forward with any specific complaint until the same  clocked 52113 kms, during which point of time he reported  of low pulling.  When the complainant reported for starting trouble , the 2^nd OP observed minutely and decided to repair the engine assembly as the 2^nd OP was not having  stock of the  of certain spares across the counter an order came to be placed with  this OP and  unexpectedly even this OP never had  stock of the same, however necessary arrangement were made ensure that the modified turbo assembly is replaced in the  complainant’s vehicle fitted  on5/11/2015.  The 2^nd OP did duly informed the complainant  about the same, who instead of appreciating the efforts taken by the Ops for  reasons best known  filed this  frivolous  complaint. The 1^st Op pleaded that, as per the terms of the warranty this  OP is  only obligated  to replace the spare/part and certainly cannot be compelled to refund the vehicle’s  cost price. The Ops are even now ready & willing to hand over the vehicle to the complainant in a road worthy condition and it’s up to the complainant to take a call in the said context.  This Ops could neither be labeled as deficiency nor unfair trade practice.  The quantum fixed by the complainant towards financial loss and towards mental agony and pain is derived out of  imagination.  The vehicle owned  by the complainant is free from defect.  Hence  prays for the dismissal of this complaint.

  Power of attorney holder of the complainant  has filed chief affidavit examined as  PW1 and marked Exts.A1 to A6.  Regional Manager of Ist OP filed chief affidavit with 3 documents.  Ext.B1  warranty conditions.  Ext.B2 relationship  agreement entered between the 2^nd OP with the 1^st Op. Ext.B3 Job sheet and  after that produced letter addressed by the OP to the complainant dtd.12/11/2015.  Complainant submitted questionnaire to the chief affidavit of 1^st OP and 1^st Op submitted answer to the questionnaire. 

    The learned counsel appearing for the complainant filed written argument note.  Ops counsel neither  filed argument note nor  turned up to argue the matter.  Hence we have verified the argument note of complainant and the material evidences brought before us. On analyzing the entire evidence and argument it is revealed  that the complainant  was not willing to  take  delivery of the vehicle which was fully repaired by the  dealer by replacing  the modified turbo assembly.  Further the complainant wanted  the prize of the vehicle instead of the repaired vehicle.  We can see that the defect has been noticed within the warranty period.  Since the  facts having  arisen within  the warranty period, it was the duty of the manufacturer(Ist OP) to repair the same or to replace the vehicle by a fresh one.  The manufacturer’s case is that the vehicle was fully repaired by 2^nd OP as the authorized dealer, and the  complainant was responsible for not  taking delivery of the same.  Therefore no responsibility of interest can be shifted to the opposite parties.  The facts noticed above lead us to take the view that the vehicle  had   defects in the engine which was  repaired by replacing with the modified turbo assembly by the dealer.  From the admission of the  1^st OP’s contention, it is  evidenced that the vehicle had major defects in the engine.  According to complainant since the vehicle was  in the custody of 2^nd OP, he could  not prove manufacturing defect of the vehicle.

   The lawyer’s notice Ext.A5 sent to the Ops on 4/11/2015, stating that as the vehicle is having manufacturing defect he does not want  the disputed vehicle  instead of that he demanded the prize of  the vehicle.  OP’s contention is that the complainant did not take any  steps to prove the manufacturing defect.  It is a settled position that if  the defect happened within warranty period ,complainant need not prove manufacturing defect.  1^st Op produced one  letter showing that 2^nd OP sent  registered notice  to the complainant on 12/11/2015 to take delivery of the repaired vehicle after settling the dues.  The said letter justifies the version  the 1^st OP that the vehicle is fully repaired and is in a road worthy condition.  Any way it is evident that 2^nd OP kept vehicle  idle in their workshop from  9/9/2015 to 12/11/2015 without being repaired.  2^nd  Op might have taken  steps  after receiving Ext.A5 legal notice. Thus it is a clear admission of the 1^st OP that the vehicle  had major defect in the engine and decided to repair the engine assembly and  further on 5/11/2015, the modified turbo assembly was fitted after replacing the defective turbo assembly by the dealer  ie 2^nd OP.  According to 1st Op, complainant reluctant  to take delivery of the repaired vehicle in spite of repeated  demand from the  side of 2^nd OP.  Admittedly, the vehicle has been  in the custody of the dealer  since then and they are ready to  hand over the repaired vehicle to the complainant in a road worthy condition.

   Ext.A6 Arbitration award  against the complainant shows the total receivable amount from himisRs.186478/- to the finance company as on 8/6/2016.

            For the  reasons aforementioned and considering the decisions  of the  Hon’ble Apex Court produced by the learned counsel of  complainant.  we allow the complaint.  Since there is unfair trade practice and deficiency  in service of opposite parties. 1^st opposite party General Motors India Pvt Ltd(manufacturer) is directed to deliver the vehicle of the complainant in a road worthy condition or to pay half of the value of the vehicle ie Rs.3,80,649/-only (since it has plied about 55634kms till the repairing time) within a period of 2 months from  the order date to the complainant.  2^nd OP is directed to  pay Rs.186478/-(payable amount as per Ext.A6) with @12% interest from the  date of order.  Further both the opposite parties jointly shall pay Rs.50,000/- as compensation and cost to the proceedings.  The order shall be complied with within two months from the date of order.  Failing which  complainant shall at liberty to  realize the award amounts  through execution proceedings as per  Consumer Protection Act 2019.

Exts;

A1-27/9/13- Sale invoice

A29/9/15-job sheet

A3-4/11/15- lawyer notice

A4-Acknowledgment card of OP1

A5- do-                                     OP.2

A6- award passed by finance company  

B1-  warranty conditions. 

B2 -relationship  agreement entered between the 2nd OP with the 1st Op.

B3 -Job sheet   

Sd/                                                              Sd/                                              Sd/

PRESIDENT                                              MEMBER                                     MEMBER

Eva                                         /forwarded by Order/

                                                                      SENIOR SUPERINTENDENT