IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 30th Day of April 2021
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.181/2014
Mini George : Complainant
W/o George German
Milan Villa,Sakthikulangara P.O
Kollam-691581.
[By Adv.Benoy Bal]
V/s
- Indus Motor Co.Pvt.Ltd. : Opposite parties
Cordial Towers, Near St.Mary’s School
Kesavadasapuram Road, Pattom P.O
Thiruvananthapuram-695004.
- Popular Vehicles and Service Ltd.
H&C Compound, Mundakkal West
Kollam-691001.
[By Adv.C.R.Sureshkumar]
- Maruti Suzuki India Limited
Regional Office, Tutus Tower
NH 47, Bye Pass,Padivattom
Cochin-682024.
- Maruti Suzuki India Ltd.
1, Nelson Mandela Road
Vasant Kunj
New Delhi-110070.
[By Adv.Anto Thomas&Shyjimol U.S]
FINAL ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.
The averments in the complaint as stands amended in short are as follows.
The complainant is a consumer. On 04.11.2013 she purchased a Maruti Swift DLI car bearing Registration No.KL 20-D-7759 from one Binu Khan who purchased the same from one Shameela.K. The 1st opposite party is the authorized dealer, 2nd opposite party is the service centre and 3rd opposite party is the manufacturer of the said car. After purchasing the vehicle the complainant has been using the same and also subjecting the vehicle for periodical service with the 2nd opposite party as per warranty conditions. On 06.09.14 at about 11.30 pm while the complainant’s husband Mr.George German was proceeding towards his house from Kollam and when it reached at port, Kollam inorder to meet his friend he kept the vehicle in idling mode. While so the engine of the car got raised automatically and on hearing the abnormal sound the complainants husband suddenly Switched off the vehicle. Later when he tried to start the vehicle it was not working. The complainants husband immediately tried to contact the 2nd opposite party, but he could not due to Onam season. Later he contacted the authorized service centre M/s Indus Motors, Karikkodu and the personals from the said service centre took the vehicle to the garage using the recovery vehicle. The said personal informed that the vehicles defect is a major one and that the engine to be dismantled and opened. The complainant’s husband informed them that he is intended to do such works at the 2nd opposite party’s service centre and vehicle was taken to the garage of that service centre on 13.09.2014. The delay occurred since the complainant’s husband was under treatment for Kidney stone. The 2nd opposite party after inspection informed the complainant that the entire combustion chamber including the piston and the fuel injector is completely destroyed and all such parts are to be replaced. It was further informed that during replacement if other similar parts in the other combustion chambers are also found defective those are also to be replaced for which the cost incurred is not known to the complainant. The 2nd opposite party has also gave two quotations for the work to be done which are also produced herewith. Now the vehicle is in the custody of the 2nd opposite party in a dismantled position at the garage of the 2nd opposite party. The 2nd opposite party also informed the complainant that she has to pay Rs.150/- per day as floor charges for the vehicle to be kept at the garage. Since the vehicle has run only 28296 kilometers and the complainant bonafide believes that the engine of the vehicle is having inherent manufacturing defect she requested the 2nd opposite party to replace the engine free of cost but they are adamant and are not prepared to do so. It is reliably learnt that a group of cars manufactured and sold by the 3rd opposite party all over India with the Chassis prefix number starting withMA3 was recalled by the 3rd opposite party due to inherent manufacturing defect. In such circumstance it is pertinent to note that the prefix of the chassis number of the complainant’s vehicle is also MA3. On 11.10.2014 the complainant was served with a letter dated 09.10.2014 intimating her that the job card will be cancelled within 3 days unless she gave authorization. The act of the opposite parties in delivering the vehicle having manufacturing defect amounts to deficiency in service and unfair trade practice. Due to the deliberate acts of the opposite parties the complainant has sustained unwarranted losses. The complainant is forced to hire vehicles for her family and also for her office purposes. Hence the opposite parties are jointly and severally liable for the losses already sustained by the complainant. The opposite parties are also jointly and severally liable for the losses which will be suffered by the complainant in the future.
The opposite party No.1&2 filed separate version and opposite party No.3&4 filed joint version. The main contention of all the 3 set of version in short are as follows. The complaint is not maintainable either in law or on facts. The complainant is the 3rd owner of the vehicle which is a 2012 model Swift Dezire car. The warranty period of the vehicle is already over. The condition of the vehicle will depend upon the usage of the vehicle. The complainant cannot say on what conditions the vehicle was used by the earlier owners. There is no deficiency on the part of the opposite parties and no financial loss, irreparable injury or harm is caused to the complainant due to any act of the opposite parties. The defects pointed out by the Commissioner are only normal and curable defects. The vehicle is not having any manufacturing defect. The 1st opposite party would further content that there is no allegation what so ever caused the 1st opposite party and hence the 1st opposite party is an unnecessary party in the case and also prays to delete the 1st opposite party from the party array.
However the 1st and 2nd opposite party would admit that the complainants car bearing Registration No. KL 20-D-7759 was brought to the 2nd opposite parties garage for repairing of its engine side. 2nd opposite party would further content that the service person of the 2nd opposite party had inspected the vehicle and found certain repair work and replacement of some parts of the engine are required to be carried out in the said vehicle for which the 2nd opposite party had issued estimate of the said work to the complainant. But the complainant had not issued consent or authorization for commencing the work so far. At the time when the complainant reported break down its engine was not starting and hence the vehicle towed to the workshop. The vehicle had run 28236 km as on that date. The said vehicle was purchased on 19.05.12. The period of warranty was expired on 18.05.14. After the expiry of the warranty period the expense for any repair work has to be borne by the customer alone. The primary warranty issued by the manufacturer was for 2 years or 40 kms whichever is earlier. Hence the 2nd opposite party demanded service charges for the repair and maintenance of the vehicle. On 09.10.14 the 2nd opposite party issued a letter to the complainant requesting for authorization for commencing the work of the vehicle within 3 days failing which the 2nd opposite party would charge Rs.150/- per day towards floor rent. In the said communication the 2nd opposite party had also warned the complainant that it shall not be held liable for any sort of loss or damage to the vehicle and levying of floor rent will be necessitated if the complainant keeps on parking the vehicle in the premises of the opposite party for anymore period. But the complainant has not responded so far. The 2nd opposite party is not in any way responsible for any manufacturing defect if any of the said vehicle and the manufacturer is only responsible if the complaint had given consent to the 2nd opposite party to carry out the repair work the same would have been done promptly. The 2nd opposite party is not a necessary party to the complaint. However the 2nd opposite party has no objection in allowing the complainant to take away the vehicle after paying floor rent. There is no cause of action against the 2nd opposite party nor there is any deficiency in service or unfair trade practice or negligence on the part of 2nd opposite party.
The 3rd and 4th opposite party filed a detailed version raising the following contentions. The complainant is not a consumer of the opposite party No.3&4. The complaint is barred by limitation u/s 24(A) of the Consumer Protection Act 1986. The vehicle was defect free and in perfect OK condition at the time of sale. The vehicle is out of warranty period and opposite party No.3&4 are discharged from their obligations under warranty. The complainant has no cause of action against opposite party no.3&4. No deficiency in service or unfair trade practice is alleged against op 3&4. The complaint is bad for misjoinder of proper and necessary parties. Op 3&4 are neither necessary nor proper party to the complaint. The allegations in the complaint would not relate to Op 3&4. The complainant is quite negligent in the proper maintenance of the vehicle. The complainant has bought the vehicle on 04.11.13 and obtained paid service on 13.05.14 at 23047 kms from Popular Vehicles and Services Ltd., Kollam. The complainant did not report any problem or abnormality in the vehicle and normal service as per periodic maintenance schedule was carried out to the entire satisfaction of the complainant. The cause of the alleged problem of automatic raising of the car engine is due to negligent and careless operation of the vehicle. The said problem occurred due to over raising of RPM by excessive depressing the accelerator pedal by the user of the vehicle. Pistons in diesel engines get melt due to engine overheating and the same happened when the user of the vehicle accelerates beyond the limit and result into piston melting. It is not recommended to accelerate the speed pedal when the vehicle is stationary. It is admitted by the complainant that the vehicle was kept in idling mode and due to over acceleration of speed pedal due to continuous depressing, the vehicle sustained the alleged problem. The cause of alleged problem was not due to any defect in the vehicle but not to improper or wrong use in the vehicle. Contra allegations in the complaint regarding the aspect is false and baseless since the repairs are not covered under the ambit of warranty, the complainant was provided with estimate of repairs to carry out the repair work. But the complainant refused to undertake repairs on paid basis and abandoned the vehicle at the workshop of the 2nd opposite party. The complainant has instituted the present case to exert legal pressure upon opposite parties to obtain repairs of FOC basis. The complainant is not excepted to make any demand on conditions of warranty. The vehicle is not having any inherent manufacturing defect and hence not liable to replace the engine free of cost as alleged. The complainant has misconstrued the meaning of manufacturing defect and has approached this Forum without any basis. In case of manufacturing defect the vehicle would not have covered such a huge mileage of 28296 kms. Opposite party No.3&4 are not responsible towards the improper conduct of the user of the vehicle. The complainant has no cause of action against the opposite party No.3&4. They further pray to dismiss the complaint with costs and compensatory costs.
In view of the above pleadings the points that arise for consideration are:-
- Is the complaint barred by limitation as contented by the opposite parties?
- Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties No.1 to 4?
- Whether the complainant is entitled to get replaced the defective engine of the car bearing Reg. No.KL 20-D-7759 with a brand new one with all its warranty conditions?
- Whether the complainant is entitled to get compensation as prayed for?
- Whether the 2nd opposite party is to be restrained from realizing floor charges from the complainant?
- Relief and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1&2 and Ext.P1 to P5 and Ext.X1.Evidence on the side of the opposite parties consists of the oral evidence of DW1,DW2,Ext.D1&D2 documents.
Point No.1to 3
For avoiding repetition of discussion of materials these 3 points are considered together. Admittedly the vehicle involved in this case was purchased by one Shameela on 19.05.12. Subsequently it was sold to one Binukhan from whom the complainant purchased the same on 04.11.2013. It is also an admitted fact that the vehicle was taken to the garage of the 2nd opposite party on 13.09.14. The main allegation of the complainant is that on 06.09.2014 at about 11.30 pm while the husband of the complainant was driving the said vehicle and was proceeding towards Kollam and when he reach rear Port, Kollam inorder to meet his friend he kept the vehicle in an idling mode. But the engine got raised automatically and heard abnormal sound. Immediately he switched of the engine but it was not getting started when it was attempted to start. The complainant entrusted the vehicle to an authorized service centre, Maruti Suzuki Indus Motors, Karicodu. It is clear from the available materials that on 13.09.2014 the complainant has taken to the vehicle to the garage of the 2nd opposite party inspected the same and found that the entire combustion chamber including the pistol and fuel injectors were destroyed or damaged. At that time the 2nd opposite party noticed that the engine had completely damaged. Audometer reading was 28236 kms. It is admitted by the 1st opposite party in paragraph 3 of the written version that the vehicle became defective on 06.09.2014 and the said vehicle was taken to the garage of Indus Motors , Karicodu on the same day. Later the vehicle was removed to the 2nd opposite party service centre on 13.09.2014 and on inspection by the service personal of the 2nd opposite party it was found that the entire combustion chamber including Pistol and fuel injectors were completely destroyed. It is also brought out in evidence through expert commissioner that at the time of 3rd free service of the vehicle it was reported that there was engine vibration if the vehicle is driven above 6 kms. But in job card recommendation the above defect was not seen cured. In the customer feedback it is reported that PSF Status CCE dissatisfied which would indicate that the customer was not satisfied regarding the service of the vehicle. The above job card dated 18.05.2013 has been marked as Ext.X1(a). It is clear from the said job card that the customer has pointed out the defect regarding engine vibration above 6 kms and the PSF status was noted as CCE dissatisfied. The above facts noted as Ext.X1(a) stands corroborated by the oral evidence of DW1 who is none other than the works manager of the 2nd opposite party. The evidence of DW1 would indicate that 3rd free service \S-¯n-bn-«p-ÅXv 18.05.2013, which would clearly indicate that it was done just 1 year of the date of purchase of the vehicle and the warranty is admittedly for 2 years. DW1 has further deposed that while conducting 3rd free service the complaint made by the customer that engine vibration above 6 km is noted and the PSF status has been noted as customer dissatisfied and the same would indicate that the service done on the vehicle was not satisfied by the customer. The said defect would indicate that fuel injection to the vehicle was not doing in a proper way. PW2 has further reported in paragraph 4 of Ext.X1 report that engine fuel injection knÌ-¯n\v hml\ D]-t`m-àm-hnsâ \ntX-y-\-bpÅ sabnâ-\³kv Bh-i-y-apÅ `mK-aÃ. AXp-sImv D]-t`m-àm-hnsâ GsX-¦nepw Xc-¯n-epÅ hogvN Cu damage te¡v F¯n-¨-Xmbn ImWp-¶n-Ã. It is further stated inparagraph 5 of Ext.X1 report that Bb-Xn-\m Cu damage Sn hml-\-¯nsâ F³Pn³ \nÀ½mW¯nse fuel injection knÌ-¯n h¶ hogvN sImmWv kw`-hn-¨Xv F¶p a\-Ên-em-¡p-¶p. In view of the oral evidence of PW2 coupled with Ext.X1 report it is cristal clear that the defect of the vehicle persisted even at the time of 3rd free service ie, on 18.05.13 and the defect was not rectified by the service centre which was ultimately resulted in damage of the vehicle. PW2 has categorically deposed that the above defect was occurred mainly due to the inherent defect of the vehicle.
According to the opposite parties the defect was not due to any manufacturing defect but it was due to the negligent and careless operation of the vehicle by the complainant. But the oral evidence of PW2 coupled with Ext.X1 report and X1(a) job card would rule out the above contention of the opposite parties. The learned counsel for the complainant has put a definite question to the expert when he was in the witness box as PW2 that ImÀ Hm¬ sNbvXv BIvkn-te-ä-dn AaÀ¯n-bm (hm-l\w HmSn-¡m-sX) diesel inject induction sN¿p¶ `mKhpw piston sâ head `mKhpw Dcp-Im³ ImcWw F¶p ]d-bp¶p? icn-b-Ã. The above evidence of PW2 expert commissioner coupled with Ext.X1(a) job card carried out at the time of 3rd free service ie, on 18.05.13 would show that the inherent manufacturing defect was resulted in the subsequent damage of the vehicle. Though PW2 the expert commissioner has been cross examined severely by the learned counsel appearing for opposite party No.2&4 nothing material has been brought out to disbelieve the evidence tendered by PW2 including X1 report and X1(a) portion of X1 report. It is brought out in evidence that PW2 is having technical qualification to verify the manufacturing defect of the vehicle as PW2 is a B Tech Mechanical Degree holder and is having sufficient experience, expertise and knowhow for inspecting the vehicle. In the circumstances we find no reason to disbelieve the oral evidence of PW2 and Ext.X1 and X1(a) portion of that report.
The above evidence of PW2 stands corroborated by the oral evidence of DW2 coupled with Ext.X1(b) vehicle history. DW2 has deposed that CCE dissatisfied mentioned in Ext.X1(b) shows that the customer is dissatisfied by the repair done by the 1st opposite party on 18.05.2013. The oral evidence of DW2 also would rule out the possibility of misuse of acceleration pedel resulted in the ultimate damage. In view of the materials discussed above it is cristal clear that there was inherent manufacturing defect of the vehicle which was detected within 1 year of the date of purchase of the vehicle and though the defect was pointed out to the 2nd opposite party during 3rd free service that defect was not rectified which is evident from the endorsement in Ext.X1(a)&X1(b) that CCE dissatisfied by the customer. It is also clear that the inherent manufacturing defect pointed out above has ultimately resulted in damage to vehicle. Therefore it is cristal clear that there is deficiency in service on the part of the 4th opposite party which is the manufacturing company and the 2nd opposite party which is the service centre. The 1st and 3rd opposite parties are the dealers which sold the vehicle having manufacturing defect of the customer is also liable.
It is to be pointed out that as the defect existed for the vehicle right from 18.05.2013 which is within the warranty period and that defect resulted in the final incident the contention of the opposite parties that the complaint is barred by limitation is devoid of any merit.
It is further argued on behalf of the opposite party is that the vehicle has become defective due to the use of the adulterated fuel by the complainant. But the opposite parties have no such case in their version. In other words it is a new case of the opposite parties which will not stand in the light of the oral evidence of PW2 expert who has categorically deposed that the vehicle was having inherent manufacturing defect. The evidence of PW2 would rule out the above possibility. According to him the engine will automatically get ceased if petrol was filled instead of diesel. Therefore it is clear that there is no chance of causing the defect due to the change of the fuel. The learned counsel for the opposite party 3&4 has argued that the onus to prove manufacturing defects lies with the complainant and the complainant has failed to establish the same. According to the learned counsel for opposite party 3&4 the complainant did not prove what was the defect occurred to result such damages on the engine and unless the cause of damage ascertained the Forum/Commission may not be able to enter into a finding that the damage is occurred due to manufacturing defect, so as to hold the 3rd and 4th opposite party responsible for the same. The learned counsel for the 3rd and 4th opposite party have vehemently argued that the vehicle involved in the case was damaged due to the misuse and negligent act of the complainant. Hence he is not entitled to get the relief prayed for. It is further argued that the vehicle was kept in idling mode for a prolonged period so as to meet his friend and if the vehicle is kept an idling mode of same duration the same may increase the heat inside the combustion chamber which will result in melting the engine part such as piston, crown, combustion chamber, piston rings, fuel injector system etc. Hence according to the learned counsel for the opposite party the defect has been caused by misuse, negligence, abnormal use or insufficient care and therefore the opposite party No.3&4 are not liable at all. In the light of the evidence tendered by the expert commissioner(PW2) and DW1&DW2 and also in the light of the admission of DW1&2 coupled with Ext.X1 report, Ext.X1(a), X1(b) documents, there is no chance of causing the defect due to the misuse or negligent, abnormal use or lack of care in using the vehicle etc, but it was due to inherent manufacturing defect as pointed out by PW2 the expert witness. On evaluating the entire materials available on record we come to the conclusion that there is deficiency in service on the part of Op No.1 to 4 who is the dealer, manufacturer and service center which sold a car having inherent defect to its purchaser and the 2nd opposite party who has not cured the defect at the time of carrying out of service within the period. Therefore the complainant is entitled to get replaced the defective engine of his car with a brand new one of the same specification along with warranty as prayed for in the complaint. The points answered accordingly.
Point No.4
It is clear from the available materials that the 2 year old car got stucked while it was driving and the engine got ceased when the car was attempted to be started which has caused much mental agony to the complainant apart from monitory loss. Therefore the complainant is entitled to get compensation from the opposite parties No.1 to 4. The point answered accordingly.
Point No.5
The learned counsel for the 2nd opposite party would argue that the complainant had never raised any complaint regarding vibration of any nature with the 2nd opposite party at any point of time. The 2nd opposite party has never charged any amount from the complainant till it was last produced. In the circumstance keeping the vehicle in the premises of the 2nd opposite party caused huge loss by way of floor rent. According to him inspite of repeated reminders to the complainant she has never taken back the vehicle nor paid the floor rent. It is further argued that had the complainant given work order in time the 2nd opposite would have repaired the vehicle promptly and the complainant and her husband are solely responsible for the dilemma. It is further argued that there is no unfair trade practice or any deficiency in service on the part of the 2nd opposite party and if at all the vehicle is having any manufacturing defect or the engine is having any manufacturing defect is not due to any act of 2nd opposite party and therefore the 2nd opposite party is to be exonerated from liability. In the light of the materials available on record we find no force in the arguments. Admittedly the 2nd opposite party is the authorized service center of the other opposite parties. The vehicle was brought to the garage of the 2nd opposite party on 13.09.2014 as it was not in a working condition. Hence it was removed to the garage of the 2nd opposite party by using the recovery vehicle. It is also brought out in evidence that the service personal of the 2nd opposite party verified the vehicle and its engine and noticed that the engine was completely damaged and entire combustion chamber including piston and fuel injectors were completely destroyed. But in the job card the said defects were not seen noted. However in the customer feedback it is reported that PSF status CCE dissatisfied which would indicate that the customer was not satisfied regarding service of the vehicle. In Ext.X1(a) job card dated 18.05.13 it is noted that the customer has pointed out the defect regarding engine vibrations above 6 kms and PSF status was noted as CCE dissatisfied. The above material on record would indicate that the service done on the vehicle by the 2nd opposite party was not satisfied by the customer. Hence there is deficiency in service on the part of the 2nd opposite party also. In the circumstances the demand of the 2nd opposite party that the entire combustion chamber including piston and fuel injector has to be replaced at the cost of the complainant is not justifiable. As the inherent manufacturing defect has been noted within one year of the sale of the vehicle it is to be inferred that the defect has been occurred during warranty period and the same has to be replaced under warranty instead of doing on payment. Hence the act of the 2nd opposite party that he will do work only on getting payment by the complainant amounts to deficiency in service and unfair trade practice. Therefore there is justification in not taking delivery of the vehicle from the garage of the 2nd opposite party and hence the 2nd opposite party is not entitled to get any floor rent for keeping the vehicle at that garage and the complainant is entitled to get a prohibitory injunction restraining the 2nd opposite party from realizing the floor rent from the complainant. The point answered accordingly.
Point No.6
In view of our finding with regard to point No.1 to 4 the complaint is only to be allowed. In the result complaint stands allowed in the following terms.
1. Opposite No.1,3 and 4 are directed to replace the defective engine of the Maruti Swift DLI car bearing No.KL 20-D-7759 with a brand new one of the same specification jointly and severally within 45 days from the date of receipt of a copy of this order.
2. Opposite party No.1 to 4 are directed to pay Rs.50000/- as compensation for mental agony sustained to the complainant due to deficiency in service and unfair trade practice on the part of the opposite parties.
3. Opposite parties No.1 to 4 are also direct to pay Rs.10000/- as costs of the proceedings to the complainant.
4. Opposite party No.1 to 4 are directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover the present market price of the brand new engine which is to be replaced in the above car belongs to the complainant from the date of complaint till realization and Rs.50000/- being compensation interest for the above amount @ 9% p.a from the date of complaint till realization along with cost Rs.10,000/- from opposite party No.1 to 4 jointly and severally and from their assets.
5. The 2nd opposite party is restrained from realizing any floor rent from the complainant for keeping the vehicle at their garage till the other opposite parties replaces the defective engine with a brand new one.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 30th day of April 2021.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 :George German
PW2 :Biju.D.S
Documents marked for the complainant
Ext.P1 : True copy of RC Book
Ext.P2 :Job slip cum demanded repair explanation sheet
Ext.P3 : Estimate(quotations)
Ext.P4 : VAT Form No.8 B
Ext.P5 : Letter dated 09.10.14.
Witnesses Examined for the opposite party:-
DW1 : Printo
DW2 : T.Sathriyan
Documents marked for opposite party:-
Ext.D1 : Copy of job card
Ext.D2 : Copy of Letter dated 09.10.14
Ext.X1&X1(a)X1(b): Mahassar and vehicle history.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by order
Senior Superintendent
