KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.95/2013
JUDGMENT DATED 25/10/2013
(Appeal filed against the order in CC No. 26/2011 on the file of CDRF, Kannur dated, 15/12/2012)
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
APPELLANT:
Ford India Pvt. Ltd.,
S.P. Koli Post, Chengalpattu-603 204.
(By Adv: V.K. Mohan Kumar)
Vs
RESPONDENTS:
1. George Kutty Joseph,
Nadaath House, Anggadikadavu Post,
Kiliyanthra.
2. PVS Automotive Company (P) Ltd.,
Thazhe Chovva, Kannur Dist.
3. PVS Ford,
Opposite Government Arts College,
KTC Nagar, Meenchantha,
Kozhikode Dist.
(By R2 and R3 Advs: Syam Padman and S. Reghukumar)
JUDGMENT
SMT. A. RADHA : MEMBER
This appeal is preferred by the opposite parties against the order in C.C.No.26/11 of CDRF, Kannur wherein the opposite parties are directed to rectify all the defects of the vehicle and to pay Rs.10,000/- as compensation and a sum of Rs.2,000/- as cost of litigation. Further direction is that on failure failing to comply the order the opposite parties are liable to replace brand new car to the complainant.
2. The brief facts of the case of the complainant are that he purchased Ford Ikon Car from 2nd opposite party through 1st opposite party who are the authorised dealers of 3rd opposite party. The allegation of the complainant is that the vehicle started showing serious trouble and had some sort of moisture on the wind shield when the air conditioner system functions. It caused serious trouble to the driver who drives the vehicle. So also during night the vehicle could not ply as the condition worsened and on several occasions the vehicle was brought for servicing to the authorised centers but the complaint continued. Due to the moisture, accidents were about to happen and on two occasions the complainant somehow escaped from accident. This resulted in serious mental, physical and financial strain to the complainant. The opposite parties are bound to replace the defective car by delivering a new Ford Ikon Car as the complaint occurred from the very same month of purchase. Hence complaint is filed for direction to replace the defective car with a brand new Ford Ikon Car and also for Rs.1,00,000/- towards compensation and cost of the proceedings.
3. In the version filed by the opposite parties 1 and 2 it is contended that the allegations made by the complainant is not proved. The car covered 5252 kms. On 16-06-2010 the vehicle was brought for 1st service with minor defects only. The 2nd service was on 01/11/2010 and not on 01/10/2010 as mentioned in the complaint. By that time the mileage of the vehicle was 10856 kms. The main complaint reported was moisture exists on wind shield while A/c is working. The vehicle was tested over road and the complaints were not true. The complainant accepted the vehicle on satisfaction. The warranty is assured for 2 years or 100000 kms (which ever occurs earlier) The complainant brought the vehicle after covering 10000 kms. The opposite parties attended the required service to the complainant’s vehicle as per warranty conditions. The opposite parties acted sincerely and with utmost bonafides and rendered the best service to the complainant. No deficiency in service occurred on the part of opposite parties and the complaint is to be dismissed.
4. The 3rd opposite party filed version contending that they are the manufacturers and the allegations raised by the complainant is absolutely false and denied the allegations. It is also denied that no assurance was given by the opposite parties. The 3rd opposite party has a principal to principal arrangement with the dealers and each is responsible for their own individual actions. The vehicles produced by 3rd opposite party are fuel efficient. But the mileage of the vehicle depends on the use of the customer. The allegation of some sort of moisture appeared in wind shield of the car is not a manufacturing defect. Further the cars manufactured are subjected to quality test before it is delivered to the end customer. Whenever the vehicles brought to the service centre, the vehicles are properly serviced and all defects rectified. It is also stated that the 3rd opposite party had agreed to send an expert to examine the vehicle was never co-operated by the complainant in fixing the date for such an inspection. The complainant is not entitled for replacement of vehicle as the car supplied by the 3rd opposite party was not defective. There is no deficiency in service on the part of 3rd opposite party and there is no liability to pay compensation and the complaint cannot be entertained as prayed by the complainant.
5. The evidence consisted of the oral testimony of complainant as PW1and DW1 on the part of opposite parties. Exbts. A1 to A7 and C1 were marked on the side of complainant and B1 and B2 on the part of opposite parties. The Forum Below found that as per C1 the complaint is persisting and the cause of the complaint is due to the defect in the air conditioning system. It is also opined that the defect is a reparable one. Hence the order for repair of the vehicle and on failure to comply the order, is to replace with brand new car.
6. The counsel appearing for the appellant submitted that the respondent already accepted the compensation of Rs.10,000/- and Rs.2,000/- in execution proceedings. The only question is with regard to the rectification of the defects which were already carried out and the vehicle was running in good condition without any defects. The replacement of the vehicle is not sustainable taking in view of the decisions rendered by the Hon’ble Supreme Court and National Commission. The allegations of the complainant are false and the vehicle had already plied over 10,586 kms. The counsel submitted that the appellant subjects all its cars to quality test before it is delivered to the customer. There is no manufacturing defect as per the commission report itself. In such a condition the appellants are not liable for substitution of a new car as ordered by the District Forum. It is also clear from evidence that the vehicle does not have the alleged defects and complainant is coming with unclean hands in order to get new vehicle. It is pertinent to point out that the vehicle purchased as early as on 27/02/2010 and the 2nd service was done on 01/11/2010 and the kilometer covered was 10,586. This itself shows that the vehicle does not have any manufacturing defect and the vehicle is defect-free. He also pointed out that in the evidence the complainant as PW1, wherein he stated that the vehicle met with an accident on 21/12/2011. The respondent is trying to get his vehicle repaired with frivolous complaints. The respondent was also not amenable to co-operate for the rectification.
7. The respondent appeared in person and admitted that he accepted compensation and cost of proceedings in execution proceedings. He argued that his vehicle is having the defect of moisture in the wind shield even now. The appellants are not so far rectified the defect. He also argued that he could not use the vehicle properly due to the defect of moisture in the wind shield. It will also cause danger to his life while driving the defective vehicle. He also submitted that there had two occasions of accident due to this defect of his vehicle. He also prayed for replacement of the vehicle with brand new car as ordered by the Forum Below. The failure to cure the defect is followed by the order to replace the vehicle is prayed for by the respondent.
8. Heard both sides. We are of the considered view that the appellants complied one part of the order of the Forum Below where as the rectification of the vehicle is still due to be done by the appellants. The Forum Below already ordered for rectification of the defect, further direction is on failure to rectify defect, the opposite parties are liable to replace the vehicle. It is well settled position that the replacement of the defective part is only to be done. The vehicle is having defect only to the air conditioner system as per the report of the Commissioner. The report reveals that the defect is curable. Now the question arises whether the defect has cured by the opposite parties. At the time of hearing the complainant submitted that the defect is persisting and nothing is on evidence to show that the opposite parties cured the defects. It points out that the defect is persisting. Hence we are of the considered view that the appellants are directed to rectify the defects to the satisfaction of the respondent. We do not find any merit in the argument that the opposite parties are to replace with a new vehicle on failure of rectification of the defect. As the defective can be repaired it is to be done perfectly by the appellants.
In the result, the appeal is allowed in part with modification. The appellants are directed to rectify the defects of the vehicle to the satisfaction of the respondent and the respondent is at liberty to proceed with execution as to the modification to get repaired the defect only.
The order is to comply within one month on receipt of the copy of the order. The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.95/2013
JUDGMENT DATED 25/10/2013
sa
