PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 31^st day of December 2011

                                                                                                        Filed on : 14/12/2009

Present :

          Shri. A  Rajesh,                                                     President.

Shri. Paul Gomez, Member.                                   Member.

Smt. C.K. Lekhamma,                                           Member

C.C. No.651/2009

     Between

M/s. Chinmaya International Foundation, :        Complainant

Adi Sankara Nilayam,                                              (By Adv. C.A. Joy,Thankam)

Veliyanad, Edakkattuvayal,                                      Building, Mathew Pylee

Ernakulam,                                                               Road, Ernakulam North)

rep. by its Chief Sevak,                                                    

Shanta Balakrishnan.

                                                And

 1. Hindustan Motors, Automobile                     :         Opposite parties

     Division, Hugly District,                                  (O.Ps.1to3ByAdv.R.S. Kalkura,

     West Bengal,                                                             Vanchiyoor, Thiruvan-

     rep. by  Chairman.                                            anthapuram)

2. Divisional Manager,

    Hindustan Motors,

    Automobile Division,

    Hugly District, West Bengal.

3. Mr. Jayaprasad,

    Territory Manager,

    Hindustan Motors,

    N.H. Bye pass,

    Palarivattom, Kochi-25.

4. GEO Motors,                                                  (O.Ps.4&5 by Adv. P.K.

    N.H. Bye pass, Vyttila,                                    Santhamma, Anandabazar

    Kochi rep. by its General Manager.                 Kochi-16)

5. Sales Manager,

    GEO Motors, N.H. Bye pass,

    Vyttila, Kochi.

                                          O R D E R

A  Rajesh, President.

          The case of the complainant is as follows:

          The complainant is a registered  Educational and Research Institution under the Trust Act. On 22-08-2007 the complainant placed order with the 4^th opposite party to purchase an Ambassador car.   Accordingly on 05-09-2007  the complainant took delivery of the car and later it was registered as KL38/9428.  Immediately on delivery of the vehicle  so many  technical defects started to develop and the complainant had to sent the vehicle for servicing on 08-10-2007, 20-11-2007 and 20-02-2008.  The 4^th opposite party levied service charges from the complainant.  Thereafter the complainant had to approach the  4^th opposite party for the rectification of various defects of the vehicle.  So the complainant requested the 4^th opposite party to  replace the defective vehicle with a new one and also requested to provide stand by vehicle to the complainant.  The complainant caused to issued a lawyer notice to the 4^th opposite party to replace the defective vehicle with a new one and also requested to provide stand  by  vehicle to the complainant till then but in vain. The complainant caused to issue a lawyer notice to the 4^th opposite party  to replace the defective vehicle with a new one and also requested to provide stand by vehicle to the complainant.  At that juncture  the opposite parties assured  to rectify all the defects of the vehicle to the satisfaction of the complainant on 24-04-2008.  Again the defects persisted.  The complainant had to spend more than Rs. 35,000/-  to make the vehicle ply worthy.  The  Complainant is entitled to recover the total price of  the vehicle together with the amounts expensed  for servicing and replacement of spare parts.  Thus the complainant is before us seeking the following reliefs against the opposite parties.

i.                    to direct the opposite parties to pay Rs. 1 lakh being the compensation towards pain and mental agony

ii.                   to pay Rs. 5 63,326/- being the price of the vehicle and the amounts expended  for the vehicle to rectify the defects with interest at the rate of 12% p.a.

iii.                Costs of the proceedings  

2.                The version of the opposite parties 1 to 3

          The complainant has failed to establish any manufacturing defect in the car in question or any deficiency in service on the part of the opposite parties 1 to 3.  The complainant is not a consumer as per section 2 (1) (d) of the Consumer Protection Act  and the vehicle  was purchased for commercial purpose.  The opposite parties 1 to 3 have provided warranty for the vehicle for 16000 kms or 12 months from the date of which a new car is delivered to the first owner.  The warranty of the car in dispute expired on 07-05-2008 as the audo  meter reading shows 16,109 k ms.  All the defects noted in the complaint are minor in nature and related to normal maintenance and services.  A team of the opposite parties inspected the vehicle and the entire defects were rectified to the satisfaction of the complainant on 24-04-2008.  There is no deficiency in service on the part of the opposite parties 1 to 3 and the complainant is not entitled to get any of the reliefs  sought for.

3.                The defense of  4^th and 5^th opposite parties.

          The 4^th opposite party is a dealer of the 1^st opposite party. All the complaints pointed out by the complainant were rectified by the 4^th opposite party.  The parts which are not guaranteed by the manufacturer were charges by the 4th opposite party.  The vehicle was promptly and keenly attended to and repaired to the satisfaction of the complainant whenever it was brought for servicing.  The satisfaction was recorded by the complainant in the  job card while taking back the car.  There is no sort of unfair trade practice as stated by  the complainant on the part of the 4^th  and 5^th opposite parties.

4. The authorized representative of the complainant was examined as PW1 and Exts. A1 to A26 were marked on their side. The witness for the opposite parties 1 to 3 was examined as DW1 and Exts. B1 to B8 were marked on their side. The witness for the 4^th and 5^th opposite parties was examined as DW2 and Exts. B9 to B18 were marked on their side.  The complainant and the 4^th and 5^th opposite parties filed argument notes.  Heard the respective counsel for the parties.

5. The points that came up for consideration are

i. whether the complainant is a consumer as per the provisions of 

   the Consumer Protection Act?

ii. Whether the complainant is entitled to get replacement of the

   defective car  or to get refund of the price of the car?

iii. Whether the complainant is entitled to get  compensation  and

   costs of the proceedings ?

6. Point No. i.  Admittedly the complainant is a  juristic person.  As per Section 2 (1) (m) of the Consumer Protection Act a complaint preferred by  a juristic person is maintainable in this Forum.  This point answered accordingly.

7. Point No. ii.  . The following points are not disputed by the parties.

i. The 4^th opposite party purchased the old car of the  

   complainant under an exchange scheme for Rs.1,17,000/-   

   evident from Ext. A1.

ii. The complainant booked a brand   new car with the 4^th opposite

    party on 28-08-2007 vide Ext. A2 vehicle order form and took

    delivery of the same on 05-09-2007

iii. The price of the new vehicle was Rs. 5,05,500/-  evidenced   

     by Ext. A3 retail  invoice dated 31-08-2007.  

iv. Warranty for 16000 k.ms  or 12 months from the date of  purchase 

     has been provided  by the 1^st opposite party as per Ext. B3 owners manual.

          8. Admittedly  the complainant had entrusted the vehicle  with the 4^th and 5^th opposite parties for rectification of various defects  evidenced by Ext.B19 series which reads as under on the following occasions.

9. Evidenced by the Ext. B19 series the complainant has had to entrust the vehicle with the opposite party on those occasions evidently explaining why they could not make use of the vehicle during such time which has necessarily put them to unnecessary expense consequently. Ext. B19 series  have been produced by the 4^th and 5^th opposite parties in the Forum only at the instance of the complainant why it had been disclosed calls for explanation.  The learned counsel for the complainant vehemently contented that the recurring defects of the vehicle were due to its inherent manufacturing defect and so the complainant is entitled either to get the vehicle replaced or to get refund of the price of the vehicle.  On the contrary the opposite parties maintain that there is no evidence to show that the vehicle suffers from manufacturing defect.  They are of the firm view that the complainant ought to have taken steps to get the vehicle inspected by an expert. The learned counsel   for the 4^th and 5^th opposite parties relied on the decisions rendered by the Hon’ble National Consumer Disputes Redressal Commission in the following cases as

1. M/s. Shivprasad  Papers Industries Vs. M/s. Senior

    Machinery Company (2006 (1) CPR 227 (NC).

2. Maruti Udyog Ltd.,  Vs. Virender Sharma & Anr.   2006 (3) CPR

    210 (NC)

3. R. Baskar  Vs. D.N. Udani & Ors. 2006 (3) CPR 336 (NC)

10. The crux of the decision of the Hon’ble National Commission in the above referred cases is that to prove the manufacturing defect there must be an expert opinion substantiating the same.  However no explanation is forthcoming on the part of the opposite parties as to the recurring defects of the vehicle.  Evidently the complainant had to run from pillar to post for the rectification of the defects of the vehicle. The  Hon’ble National commission has again later on in Nachiket P. Shirgaonkar Vs. Pandit Automotive Ltd. And Another (2008 (2) CPR 369 (CP)NCDRC) held in Para 14 as follows:

 “14. In today's world there are several manufacturers and they have flooded the market with several brands of vehicles. They are also alluring the consumers by issuing advertisements in the print and electronic media making huge claims about the capacity and good quality of their vehicles introduced by them in the market. Hence, the gullible consumer who is lured by these advertisements, expects defect free smooth service at least in the first year of purchase of the car. In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the consumer Forum in the written submissions filed by OP1 there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitor i.e. facts speak themselves hence there is no deed to refer the vehicle to a third party for giving an opinion.”

11. The instant case is covered squarely by the observation and Judgment  of the Hon’ble National Commission  as last cited.  Moreover to circumvent the contentions of the consumer herein the opposite parties have thoroughly failed to bring forth or prove any contentions to the contrary especially, they failed to do it within the warranty period which necessarily made the complainant to expend further amounts even after the period of warranty due to the inherent defects of the vehicle.

12. In view of the above we are of the opinion that the vehicle

of the complainant suffers from inherent  manufacturing defect.  In which case the complainant is entitled to get replacement of the defective vehicle with a new one.   Admittedly  the complainant has had to spend money on their  own time and again for timely repair of the vehicle which is by this order not to be recouped. Cost of depreciation is disallowed hence.   

         13. Point No. iii.  A juristic person  is not entitled  to get compensation for mental agony as per the decision of the Hon’ble Appex Court in Sikka Papers Limited Vs. National Insurance Company and others (2009 CTJ 706 (Supreme Court) (CP) So a natural person alone is entitled for the same.  In this case for reasons stated above we can’t allow compensation.       14. An exemplary costs of Rs. 1,000/- is awarded.

         15. Accordingly  we partly allow the complaint and direct that opposite parties 1 to 3 the manufacturers of the vehicle shall jointly and severally replace the disputed car with a new one of the same according to the choice of  the complainant  with fresh warranty. The difference in cost being allowed. The complainant is directed to return the defective car to the opposite parties 1 to 3 simultaneously.                                                                                                                                                                                                                                                                                                                                                                                                                                          

          The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of December 2011.