IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 27th day of April, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 128/2020 (Filed on 09-09-2020)
Petitioner : Sudheesh G. Plathottam,
Plathottam House,
Pulayannoor P.O. Pala,
Kottayam – 686573
(Adv. M.C. Suresh and
Adv. Aswin P. Kumar)
Vs.
Opposite party : (1) Manager,
Indus Motors,
Corporation Pvt. Ltd.
Chettimattom, Pala P.O.
Kottayam – 686575
(Adv. Deepthi Sathyan and
Adv. C.R. Sureshkumar)
(2) General Manager,
Maruti Suzuki India Ltd.
Nelson Mandela Road,
Vasant Kunj, New Delhi – 110070.
(Adv. Mallika Joseph)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows.
The complainant is the registered owner of KL-35-J-4020 White Vitara Brezza SDI AMT (Automatic) car. The said car was purchased from the 1st opposite party and the 2nd opposite party is the manufacturer of the said car. The vehicle was booked on 22-12-18 and the vehicle was delivered to the complainant on 03-01-2019. The complainant had paid Rs.10,04,935/- as the price of the said vehicle. It is averred in the complaint that after few days of using vehicle, the complainant found that when the vehicle is moved in a traffic block or while driving on a steep road after stopping and again moving, within a few minutes, the orange colored warning light in the cluster panel glows and the nonstop panic alarm sounds. In the operating manual it is instructed that in such a case the vehicle must be stopped in a safe place and the wait for the system cool down. Another problem of the vehicle was that when the vehicle was moved in reverse gear there is jerking of engine and engine will be cut off. It is further averred in the complaint that the complainant was unable to drive the vehicle in a traffic block or even on a smaller steep road.
The vehicle was taken for the 1st service on 24-01-2019 and complaint was made before the 1st opposite party service center at Pala. The 1st opposite party men assured the complainant that the defects would be cured but after the service the problems continued. Thereafter on 20-02-2019, the vehicle was taken for the 2nd service then also they assured that it could be cured and they did “consumer educated”. Even after service complainant drove the vehicle as per their instructions, but the problem continued. After that on 13-04-19 when the vehicle was taken for next service, the complaint was made and inspite of their regular assurance nothing happened and defect was not cured. After that on 22-04-2019 fly and clutch wheel assembly was replaced, but the defects were not cured.
Thereafter the complainant registered a complaint before the 2nd opposite party. Subsequent to the complaint service men of the 1st opposite party the vehicle was taken to SDT screen shot test. Though the test was conducted for four times and the vehicle was kept at the 1st opposite party workshop from 13-04-19, 22-04-19, they were not able to cure the defect. After all these efforts, since the problems were still subsisting, complainant, as a last effort made a complaint to Territory Service Manager of the 2nd opposite party. He assured that the company engineers will take up the issue and the solution will be made. He further assured that if they could not cure the defect they were ready and willing to replace the vehicle with a new vehicle with manual gear. But none of the assurance made by the opposite parties were fulfilled.
Even though the complainant struggled a lot for ventilating his grievances, all his efforts were in vain. The complainant was forced to use the vehicle with defects. The opposite parties miserably failed in curing the defect of the vehicle and neither the manufacturer nor the dealer has not taken any positive steps to replace the vehicle and inspite of the repeated demands of the complainant. According to complainant above said act of the opposite parties amounts to deficiency in service and unfair trade practice. It is further averred in the complaint that the vehicle is not of the standard or quality as provided by its manufacturer. hence the complaint is filed by the complainant praying for an order to direct the opposite parties to cure the defect of the vehicle to the satisfaction of the complainant or in alternate to replace the vehicle with a new vehicle having manual transmission and paying the difference in price of the two vehicle and registration charges, road tax, insurance etc. and to pay an amount of Rs.1lakh as compensation and Rs.10,000/- as the cost of this litigation.
Upon notice, opposite parties appeared before this Commission and filed version.
Version of the 1st opposite party is as follows.
Complainant is not a consumer as defined under Consumer Protection Act. The allegation in paragraph No.4 and 5 of the complaint is not correct, since the vehicle was found without any such defect on a test drive conducted by the technical staff of the 1st opposite party. Para 6-9 of the complaint are driving related issues and as stated in the complainant himself, a driving education was necessary to the complainant and the same was imparted. 1st opposite party has cured the defects each time but the replacement of the vehicle is not possible unless manufacturing defect is detected. The complainant is only seeking compensation and at the same time he is claiming that he is using a defective vehicle which is contrary to his claim.
The facts of the case is that the vehicle purchased by the complainant is that Vitara Brezza AGS model, which is an auto gear shift system. The vehicle is equipped with additional warning system to avoid undue wear and tear of clutch by excessive use of it. This indication is given to avoid damages to the clutch which is for the safety of the vehicle only. The complainant is not versed with using new kind of automatic vehicle. The warning lambs and gear shifting are controlled automatically and it is not a mechanical defect. The poor driving habit of the complainant himself made the machine to warn him to regulate the accelerator. It is also important to note that the relief of the complainant is demanding a vehicle with a manual transmission against auto transmission, which itself proves the incompatibility of the complainant with a new generation vehicle. Complainant had come forward with a mistake of fact or intentionally to grab fund from the opposite party. The complaint does not have any merit.
Version of the 2nd opposite party is as follows.
The 2nd opposite party being the manufacturer gives warranty for all its new vehicles. The said warranty terms are part and parcel of sale contract and are binding on both parties. The liability of the 2nd opposite party under warranty is specific as set out under clause 3 of warranty policy as enumerated in the owner’s manual service booklet. As per clause 4(1) of the warranty policy the vehicle has to be operated in accordance with the operating instructions as prescribed in the owner’s manual and service booklet. There is no manufacturing defect in the vehicle. The vehicle was reported on 24-01-2019 only for obtaining 1st free service and no such issue / defect was reported by the complainant in his vehicle. The complainant had brought the vehicle on 20-02-2019 at the workshop of the 1st opposite party and the issue of warning light glowing or blinking was reported for first time in his vehicle. The vehicle was accordingly checked and no abnormality was found in the vehicle. However it was observed that the clutch was in hot condition. On further investigation it was found that the complainant drives his vehicle uphill in reverse gear, while parking at his home, which is a higher level than the road. Accordingly, the complainant was educated and informed that while driving uphill in reverse, due to extra pressure on clutch, the clutch temperature rises and AMT warning lamp starts glowing. When this happens the vehicle should be stopped for some time to let the system cool down. The same is noted defect but safety feature to save clutch from excess wear due to driving while it is at high temperature. It is further submitted in the version that of issue of warning light glowing / jerking while driving in forward direction as well neither reported by the complainant ever prior to filing this complaint nor was observed during road test or inspection done by the 2nd opposite party.
The complainant did not make payment of Rs.50,000/- on 22-12-2018 and Rs.1004935/-on 24-12-18 to the 2nd opposite party. The relevant parts ie. fly wheel and clutch assay were found affected or worn off. The same were replaced without any cost to the complainant. The issue of warning light glowing or jerking on reverse gear was not due to any manufacturing defect, but due to driving the vehicle uphill in reverse gear which caused the fly wheel and clutch assy affected or worn off. Upon receipt of complaint concern, the 2nd opposite party for satisfaction arranged an inspection from the technical experts of the 2nd opposite party. The vehicle was road tested thoroughly but no abnormality was observed in the vehicle. However the complainant was again educated about the functioning of the reverse gear and clutch assy. The Territory Service Manager of the 2nd opposite party had not assured the complainant for replacement of the vehicle with a new vehicle with manual gear. The vehicle is of standard quality. The complainant’s vehicle was always attended as and when reported and the issue was repaired or resolved as per the terms and conditions of the warranty. There is no deficiency or unfair trade practice on the part of the opposite parties.
Complainant filed proof affidavit in lieu of chief examination and marked Ext.A1 to A19 from the side of the complainant. No oral evidence from the side of the opposite party. The documents produced by the 2nd opposite party is marked as Ext.B1 to B4. Jeeva Rajendran, who is the Legal Manager of the 1st opposite party filed proof affidavit in lieu of chief examination for an on behalf of the 1st opposite party. No documentary evidence from the side of the 1st opposite party. Expert Commissioner report is marked as Ext.C1.
On evaluation of complaint, version and evidence on record, we would like to consider following points.
(1)Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?
(2) If so, what are the reliefs?
Point No.1 and 2
There is no dispute on the fact that the complainant had purchased Vitara Brezza ZDI AMT (Automatic) vehicle from the 1st opposite party bearing Reg.No.KL-35-J 4020 on 03-01-2019. The 2nd opposite party is the manufacturer of the 1st opposite party. Ext.A1 which is the order booking form issued by the 1st opposite party proves that the complainant had booked the vehicle on 22-12-2018. It is further proved by the Ext.A2 that on 22-12-2018, the complainant had paid Rs.50,000/- to the 1st opposite party towards the booking of automatic transmission vehicle of Brezza. Ext.A4 is tax invoice issued by the 1st opposite party on 28-12-2018 for an amount of Rs.9,68,322/- towards the price of the said vehicle. The specific case of the complainant is that within few days of purchase, it was noticed that orange coloured warning light in the cluster panel would glow and nonstop panic sound would go off when the vehicle is moved in a traffic block or while driving on a steep road. It is further alleged by the complainant that jerking of engine and eventual cut off engine when the vehicle is moved in a reverse gear. According to the complainant all these defects of the vehicle was occurred as vehicle is not on a standard or quality as provided by the 2nd opposite party.
It is proved by Ext.A8 that the vehicle was taken for 1st service on 24-01-2019. On perusal of Ext.A8 we can see that the complainant had not raised any complaint with the vehicle. Ext.A9 is the job card issued by the 1st opposite party on 20-02-2019 at a mileage of 2573. At that time it is recorded in Ext.A9 as “no complaint – clutch hot condition warning lamp educated customer”. It is evident that complainant had raised the complaint regarding the glowing of warning light and nonstop panic alarm sound while diving on the steep road with the 1st opposite party. It is proved by Ext.A13 job card issued on 04-08-2019 at a mileage of 9987 kms then the complainant had done the service of the vehicle. It is recorded in Ext.A12 which is the job card issued on 07-05-19 at a mileage of 6083 Kms that the check jerking and warning lamp complaint check by technical team and found no abnormality, vehicle is normal, informed the customer vehicle is under observation. Ext.A11 job card proves that the clutch cover assy or clutch disk cays for diesel and fly wheel assy were replaced at a mileage of 5403 kms. Thus it is proved from the above discussed evidence within a short span from the date of purchase clutch assy and five wheel disk assy of the vehicle were replaced.
In order to prove this case, the complainant applied for appointment of an Expert Commissioner to ascertain the defect of the vehicle. The Expert Commissioner examined the vehicle at odometer reading of 35721 kms and filed Ext.C1 commission report. In Ext.C1 report the Expert Commissioner has reported that the stalling of vehicle in an indication in a heavy traffic condition and the vehicle can only move after the alarm goes off on the system cool down. He further reported that the vehicle also stalling when climbing an incline in reverse gear and vehicle can move in reverse only after the alarm goes off or system cools down. He also reported that the above said compliant of the vehicle may be caused by a faulty system design or a manufacturing process of the vehicle. He categorically reported in Ext.C1 that general performance of the vehicle on level road on full seating capacity. He further reported in Ext.C1 that though clutch assembly was replaced at an odo meter reading of 5403 kms. It is further reported by the expert Commissioner that an OBD scan was the only step taken by the service provider as per the customer report submitted by the 1st opposite party against the customer complaint.
The complaint was resisted by the opposite party on the ground that there is no inherent manufacturing defect on the vehicle. Through the opposite party objected and prayed for the setting aside the C1 commission report but they have not put forward sufficient reasons for the same. According to the opposite party the glowing of warning lamp was due to raise in clutch crusher due to extra pressure excerted and it is only a safety feature and no manufacturing defect. Though the opposite parties contented that the expert commission failed to appreciate all the relevant and important technical grounds the opposite parties failed to prove their contention with cogent evidence.
Normally the purchaser of a new brand vehicle would expect a smooth drive in a forward direction as well as in reverse direction and an inclined terrain also. Even if it is mud terrain or tarmac, the vehicle should move in a smooth condition in an incline reverse model also. It is pertinent to note that the expert commission has not reported any abnormality in the driving habit of the complainant. As discussed above earlier in C1 expert commission has reported that the defect of the subject matter vehicle may be caused by a faulty system design or a manufacturing process.
Admittedly, the 2nd opposite party who is the manufacturer offered 2 year warranty for the vehicle as per the clause 3 of the warranty policy. The opposite parties are liable to repair or replace any part shown to be defective with a new part or equivalent at no cost owner or parts of the labour. When the 2nd opposite party acknowledge that such a defect is artributable to faulty material or workmanship at the time of manufacture. On perusal of warranty policy we can see that the term of warranty shall be 24 months or 40000 kms from the date of delivery to the owner. On evaluation of evidence, we are of the opinion that at a mileage of 2573, the complainant has raised the complaint regarding the warning light glowing and clutch dis and fly wheel assy was replaced at a mileage of 5403. From this the complaint with the vehicle starts within a short period from the date of purchase and the complainant has raised this if the opposite parties within regular intervals. The expert commissioner categorically reported that opposite parties failed to resolve the defects of the vehicle and only steps taken by the opposite parties were replacing the clutch assy and OBD scan.
On a close evaluation of the available evidence on record we are of the opinion that the opposite parties has sold a vehicle to the complainant which is having no standard or quality as offered by the opposite parties. The act of the opposite parties amounts to deficiency in service and unfair trade practice. By selling a substandard vehicle which has no quality as offered by the opposite parties much mental agony and heavy loss was caused to the complainant.
The complainant prayed for an order to direct the opposite parties either to cure the defect of the vehicle to the satisfaction of the complainant or to replace the vehicle with a new vehicle having manual transmission. The prayer of the complainant is to replace the vehicle with a new vehicle having automatic manual transmission system cannot be allowed. If it is found by the Consumer Commission that any vehicle, having inherent manufacturing defect then the Commission can order only either to replace vehicle with the same specification or to refund the price of the vehicle. Here in the case on hand it is evident from the record that the vehicle had covered only 35,721 Kms. In thsese circumstances keeping in mind that the Consumer Protection act is a social welfare legislation to protect the interest of consumers from the deceptive practice of the service providers we allow the complaint in part and pass the following Order.
- We hereby direct the opposite parties to replace the Vitara Brezza SDI
AMT (Automatic) car bearing Register No.KL-35-J-4020 with new one having the same specifications within one month from the date of this order, failing which to refund Rs.10,04,935/- to the complainant with 9% interest from 24-08-2020 till realization.
- We hereby direct the opposite parties to pay Rs.50,000/- as compensation
to the complainant.
- We hereby direct the opposite parties to pay Rs.10,000/- as litigation cost to the complainant.
The opposite parties are jointly and severally liable to pay the amounts.
The Order shall be complied within 30 days from the date of receipt of copy of this Order. If not complied as directed the compensation amount will carry 9% interest from the date of Order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 27th day ofApril, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of Order booking cum commitment checklist
A2 – Copy of credit card receipt dtd.22-12-18 issued by 1st opposite party
A3 – Copy of proforma invoice dtd.24-12-15 issued by 1st opposite party
A4 – Copy of invoice dtd.28-12-18 issued by 2nd opposite party
A5 – Copy of temporary registration certificate (KL-17-G-TEMP-8873)
A6- Copy of tax invoice /certificate cum policy schedule
A7-Copy of tax license issued by opposite party
A8- Copy of job card tax invoice
A9- Copy of job card retail invoice dtd.20-02-19
A10-Copy of job card retail tax invoice dtd.13-04-19
A11- Copy of job card dtd.13-04-19
A12- Copy of job card retail tax invoice dtd.22-04-19
A13- Copy of job card retail tax invoice dtd.04-08-19
A14- Copy of lawyers notice issued to 1st opposite party
A15-Postal receipt
A16-Postal Card
A17- Copy of lawyers notice dtd.25-09-19
A18-Postal receipt
A19-Copy of driving license
Exhibits marked from the side of opposite party
B1 – Warranty policy
B2 – Copy of job card dtd.24-01-19
B3 - Copy of job card retail tax invoice dtd.20-02-19
B4 – Copy of relevant pages of owners manual
Commission Report
C1 – Inspection report by Sachin Jose
By Order
Sd/-
Assistant Registrar
