BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 144/2008 Filed on 01.07.2008

Dated : 15.07.2010

Complainants:

1. Sophy Thomas, SRA-49, Hashmi Enclave, Kallayam P.O, Thiruvananthapuram.

    

2. K. Thomas Kutty, Ambazhavelil, Kochikkadav Junction, Panthaplavu P.O, via Pattazhi, Kollam.

    

(Appeared in person)

Opposite parties :

1. Indus Motors Co. Pvt. Ltd. (represented by its Manager), Cordinal Tower, Near St. Mary’s School, Pattom P.O, Thiruvananthapuram.

    

2. Chairman, Indus Motors Co. Pvt. Ltd., Indus House, Chakorathukulam, Kozhikodu.

    

   (By adv. P.K. Aboobacker)

    

3. Managing Director, Maruti Suzuki India Ltd., 11 Floor, Jeevan Prakash, 25 Kasturbha Gandhi Marg, New Delhi-110 001.

(By adv. G.S. Prakash)

This O.P having been heard on 03.07.2010, the Forum on 15.07.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that 1^st complainant purchased Maruti Suzuki SX4 Zxi car manufactured by the 3^rd opposite party from the 1^st opposite party functioning under the 2^nd opposite party, that the car is having registration No. KL 01 AR 4613, and that from the very beginning of its operation the said vehicle was suffering from technical problems and mechanical defects such as starting trouble, loss of power, transmission not smooth, very low mileage and rusting which were promptly reported to opposite parties, but they failed to rectify the defects. It is further submitted that the vehicle is having 2 years warranty and extended 3 year paid warranty, that the said vehicle met with an accident on 07.02.2008 and it was taken by 1^st opposite party for repair and the matter was duly conveyed to the insurance company, and that even after repeated demands, requests and reminders, the vehicle was not delivered back after repairing. Hence this complaint to direct opposite parties to replace the defective vehicle having manufacturing defects with a new model of vehicle of the same make or to refund the price value of the vehicle with interest thereon along with compensation of Rs. 10,00,000/-.

Opposite parties 1 & 2 filed version (written objection) contending that the complaint is not maintainable either in law or on facts and is liable to be dismissed in limine, that the allegation that the vehicle in question was having manufacturing defects and that the defects were promptly reported to opposite parties, but they failed to rectify the defects are absolutely false. That the vehicle was brought to the workshop of the 1^st opposite party for regular free service and check-up and all the defects noted at those times were regularly repaired without any delay, that the complainants after the accident were not following up the matter and even after repeated requests the complainants have not given any approval for the work order for repairing the vehicle. So 1^st opposite party sent a letter dated 26.03.2008 requesting the 1^st complainant to give approval of the work order. It is only on 15.04.2008 the 1^st complainant had given her consent to repair the vehicle. After the accident the complainants raised false allegations stating that the accident had occurred solely due to manufacturing defects of the vehicle. Even though the allegations were all baseless, a team of engineers from Maruti Suzuki had inspected the vehicle and the outcome of the inspection was communicated to the complainant. 1^st opposite party had submitted all the claim papers and estimate to the insurance company in time, but the insurance company had raised a doubt that in the claim form the 1^st complainant had declared that the accident had occurred due to failure of power brake, that as per MVI report the condition of the brake after the accident was ’sufficient on action’. After the accident the Motor Vehicle Inspector had inspected the vehicle issued certificate dated 08.02.2008 with remarks that “No mechanical defects noted in the vehicle at the time of inspection”. After completing the repair works 1^st opposite party had informed the 1^st complainant by letter dated 02.08.2008 that the vehicle is ready to take delivery, but without taking the delivery of the vehicle complainants raised false allegations. There was no delay in completing the repair works and returning the vehicle as alleged by the complainants. There is no manufacturing defect with the vehicle and defect was caused only because of the accident committed by the 2^nd complainant. That Venjaramoodu police station had registered a crime No. 63/08 dated 08.02.2008 for the offence under Sec. 279, 37 and 338 of the IPC. Hence opposite parties 1 & 2 prayed for dismissal of the complaint with costs.

3^rd opposite party filed version contending interalia that complainants filed a frivolous and vexatious complaint on false allegations without any material on record, which is liable to be dismissed with exemplary cost, that 1^st complainant suppressed the fact that she has filed a complaint before MRTP Commission before filing this complaint, that the alleged cause of action and plea taken by the complainants in both complaints is the same, that complainant has impleaded 3^rd opposite party with an ulterior motive to cause wrongful loss and obtain undue gain. Complainant did not point out any defects more particularly alleged defects at the time of free service carried out by 1^st opposite party. The vehicle met with an accident on 07.02.2008 and the accidental repairs are not covered under warranty. The complainant has to get the vehicle repaired at her own expense or under insurance. The vehicle in dispute was repaired under insurance and the same has been intimated to the complainant for collecting the same. Complainant has been deliberately not collecting the vehicle after repair from the 1^st opposite party and making frivolous allegations. The vehicle in question was in perfect OK condition free from defects until the accident. Even as per warranty terms and conditions the only obligation of 3^rd opposite party is limited to rectification of defects or replacement of defective parts under warranty. Complainant has come up with the present case making frivolous allegations to avoid being prosecuted for criminal negligence and to avoid punishment. Complainant has failed to set out any case for negligence or deficiency in service on the part of the respondents causing any loss or damages to the complainant in any manner. Hence 3^rd opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complaint is maintainable before this Forum?

2. Whether the car in dispute was having any manufacturing defect prior to the date of accident?

3. Whether the accident had occurred due to manufacturing defects of the vehicle?

4. Whether the car in dispute entrusted to opposite parties for accidental repairs or repair under warranty?

5. Whether the complainant is entitled to get the vehicle replaced or to get refund of the price of the vehicle or to get the vehicle repaired under insurance cover?

6. Whether there has been deficiency in service on the part of opposite parties?

7. Whether the complainant is entitled to compensation? If so, at what quantum?

    

In support of the complaint, 2^nd complainant, the husband of the 1^st complainant, has filed affidavit and has marked Exts. P1 to P36 and Ext. C1. 2^nd complainant has been cross examined by opposite parties. In rebuttal, 1^st opposite party has filed affidavit as DW1 and has marked Exts. D1 to D4. DW1 has been cross examined by the 2^nd complainant. 3^rd opposite party has filed affidavit as DW2 and has marked Exts. D5 to D19. DW2 has been cross examined by the complainant. Opposite parties have filed objection to Ext. C1 and expert commissioner has been examined as CW1.

Points (i) to (vii):- The first point requiring consideration is whether the complaint is maintainable before this forum. 3^rd opposite party, the manufacturer of the car SX4 Zxi, has filed a petition to reject the complaint, on the ground that seeking the same reliefs, the complainants have already filed a petition dated 12.03.2008 before the Director General (Investigation and Registration), Monopolies and Restrictive Trade Practices Commission (MRTPC), New Delhi, under the provisions of MRTP Act, that suppressing this fact, the complaint in hand was filed before this Forum and that complainants have raised multiple disputes. Complainants have filed objection contending that the complaint pending before this Forum is the only one petition pending order before any competent authority in India. Along with objection, complainant has produced two documents (i) a copy of the letter dated 01.06.2008 addressed to Director General (Investigation and Registration) MRTP Commission, New Delhi by the 2^nd complainant informing him that he wishes to move a petition to CDRF for timely justice and requesting him to consider his appeal dated 12.03.2008 as withdrawn and (ii) a copy of the letter dated 28.11.2008 addressed to 2^nd complainant stating that since he has already taken the same matter before the District Consumer Disputes Redressal Forum, his complaint is not pursued under the provisions of MRTP Act. Evidently, a similar complaint was pending before the office of the Director General of Investigation till 28.11.2008. The complaint in hand was filed on 30.06.2008. Nowhere in the complaint, is it pleaded the pendency of the petition before the Director General (Investigation & Registration) MRTPC, New Delhi and its withdrawal by the complainant. Complainant is not a layman who suppressed the said fact in the complaint which prompted the 3^rd opposite party to file a petition to reject the complaint as not maintainable before this Forum on account of which several adjournments were made. Though complainant has taken the matter before the Director General of Investigation, MRTPC, Delhi, the same was not pursued under the provisions of MRTP Act as per letter dated 28.11.2008 issued by Assistant Director General of Investigation and Registration. Hence there arises no question of Resjudicata. In view of the above, we find the complaint is maintainable before this forum.

There is no point in dispute hat 1^st complainant purchased and took delivery of Maruti Suzuki SX4 Zxi car manufactured by the 3^rd opposite party from the 1^st opposite party functioning under the 2^nd opposite party. There is no point in dispute that the vehicle in question is having 2 years warranty and extended third year paid warranty. There is no point in dispute that the complainant has brought the vehicle in question for 1^st and 2^nd free services on 11.10.2007 and 01.02.2008. There is no point in dispute that the vehicle in question met with an accident on 07.02.2008 and the vehicle was taken by 1^st opposite party for repair. There is point in dispute that the vehicle in question was suffering from alleged technical and mechanical defects. It has been the specific case of the complainant that from the very beginning of its operation, the said vehicle was not performing well, was suffering from technical problems and mechanical defects such as starting troubles, loss of power, transmission not smooth, very low mileage and rusting, that they were promptly reported to opposite parties, but opposite parties failed to rectify the defects. It has also been the case of the complainant that on 07.02.2008 the said vehicle met with an accident, that the same was taken by the 1^st opposite party for repair on 08.02.2008, that the matter was duly conveyed to the insurance company, and that the vehicle was not delivered after repairing, instead of repeated demands, requests and reminders. Opposite parties resisted the complainant by submitting that the vehicle in question was not suffering from alleged technical and manufacturing defects, that prior to the accident vehicle in question was brought to the workshop of the 1^st opposite party for regular free services and check up, that complainant did not point out any defects more particularly alleged defects at the time of the said service and normal and regular/routine services were carried out by opposite party, under warranty to the entire satisfaction of complainant. It is the say of the 3^rd opposite party that on 07.02.2008 the vehicle in question met with an accident due to rash and negligent driving by complainant, that the cause of accident as per report of police in first offence registration No. 63/08 dated 08.02.2008 was that the complainant was driving badly at very high speed and vehicle went out of control resulting in an accident, that the police booked a case under Sec. 237, 337 and 338 of IPC. It has been the version of opposite parties that after the said accident, the complainants were not following up the matter and even after repeated demands the complainant have not given any approval for the work order repairing the vehicle, that it is only on 15.04.2008, the 1^st complainant by letter had given her consent to repair the vehicle. It is the stance of opposite parties that after the accident, the complainants have raised false allegations stating that the accident had occurred solely due to the manufacturing defects of the vehicle, that a team of engineers from Maruti Suzuki had inspected the vehicle and the outcome of the inspection was communicated to the complainant, that thereafter 1^st complainant gave her consent to repair the vehicle under insurance. Ext. P1 is the copy of the proforma invoice issued by 1^st opposite party to 1^st complainant. Ext. P2 is the copy of SX4 Feedback card, wherein it is seen given in the query column (of any problems faced the vehicle upto 1^st service) that starting problems in the first 500 km period, painting not done well. Loss of power in heavy traffic, transmission not smooth in case of frequent shifts, fuel economy very poor etc. Ext. P3 is the copy of the feedback form. Ext. P4 is the copy of the E-mail dated 02.01.2008 addressed to Managing Director & C.E.O, Maruti Suzuki India Ltd. and its reply dated 03.01.2008 to 1^st complainant. Ext. P5 is the copy of the E-mail dated 03.03.2008 addressed to Maruti and its reply dated 04.03.2008. Ext. P6 is the copy of the letter dated 11.01.2008 from 1^st opposite party to 1^st complainant informing the date of 2^nd free service of the vehicle. Ext. P7 is the copy of the certificate dated 16.06.2008 issued by Sree Gokulam Medical College. Ext. P8 is the copy of certificate cum policy schedule issued by National Insurance Company. Ext. P9 is the copy of the spot survey report. Ext. P10 is the copy of the receipt issued by Venjaramoodu police station. Ext. P11 is the copy of the letter dated 08.02.2008 addressed to National Insurance Company along with insurance claim informing the accident and requesting to settle the insurance claim at the earliest. Ext. P12 is the copy of the job slip from Indus Motors. As per Ext. P12 the vehicle was entrusted to opposite parties for body repair and opposite parties promised to deliver the same on 31.03.2008 at 3 p.m. Ext. P13 is the copy of the e-mail dated 05.03.2008. Ext. P14 is the copy of the E-mail dated 10.03.2008 from the complainant to Joint R.T.O, Nedumangadu, seeking credentials of Mr. S.R. Suku, Assistant Motor Vehicle Inspector. Ext. P15 is the copy of certificate of experience dated 12.02.2004 issued by Chitra Automobiles. Ext. P16 is the copy of the letter dated 12.05.2008 given by the branch manager of National Insurance Company to the Work Manager, Indus Motors Co. Ltd. On a perusal of Ext. P16 it is seen informed the 1^st opposite party and the complainant that the accident occurred on 07.02.2008 and estimate prepared on 12.02.2008, but it is intimated only on 17.04.2008, that there is an inordinate delay in reporting the claim. Company sought clarification about the said matter for further proceeding of the claim. It is further stated in Ext. P16 that in the claim form it is declared that the accident occurred due to failure of the power brake, but as per MVI report the condition of the brake of the car in question after accident was ’sufficient on action’. Company also sought clarification about the said matter. Copy of Ext. P16 is seen sent to 1^st complainant also. Ext. P17 is the copy of the letter dated 25.07.2008 from the 2^nd complainant to insurance company and Work Manager, Indus Motor Co. Pvt. Ltd. about the delay to deliver the vehicle. Ext. P18 is the copy of the letter dated 02.08.2008 from Works Manager, Indus Motors to 1^st complainant informing her that the vehicle is ready in all respects requesting her to take the delivery of the vehicle at the earliest. Ext. P19 is the copy of the letter dated 08.08.2008 from 2^nd complainant to Works Manager, Indus Motors to deliver the vehicle at the earliest. Ext. P20 is the copy of the letter dated 13.08.2008 addressed to Works Manager, Indus Motors, by 2^nd complainant informing him that he is not satisfied with the service provided by Indus Motors Co. Ltd. Ext. P22 is the copy of the registered post returned unclaimed by the Works Manager, Indus Motors. Ext. P23 is the copy of the letter dated 14.02.2008 addressed to Managing Director, Maruti Suzuki India Ltd., by the 1^st complainant. Ext. P24 is the copy of the proof of delivery (speed post). Ext. P25 is the copy of the letter dated 03.03.2008 to Managing Director sent by 1^st complainant. Ext. P26 is the copy of the letter addressed to 1^st complainant from speed post informing the delivery of the articles. Ext. P27 is the copy of the letter from 1^st complainant to National Insurance Company seeking copies document under the provisions of Information. Ext. P28 is the copy of service schedule. Ext. P29 is the copy of the car parts catalog online store.

This Forum appointed an expert commission on application by the complainants. Expert commission’s report has been marked as Ext. C1. Opposite parties have filed objection to Ext. C1. As per Ext. C1, commissioner has reported that “the dealer M/s Indus Motors have prepared the job estimate on 12.02.2008. However the claim was reported to insurance company on 17.04.2008 after an inordinate delay of 2 months and 10 days. The estimated time of 50 days for the accident repair is not appears to be realistic. If the required spare parts were available by properly scheduling the works, the work could have been easily completed in 30 days. The customer got the first call after completing accident repair work on 02.08.2008 that is it took almost 6 months to complete the repair works. It is further reported that the engine condition of the vehicle was found good during tests, that the fuel consumption per kilometer run of the vehicle was about 25% excess compared to a new vehicle of the same make; that variations or deviations on the ECM programme can lead to malfunction of the actuators compared to standard values and can increase fuel consumption rate. Commission has noted that the ECM, one of the most expensive parts of the car, was found replaced after the accident along with the air bag controlling assembly unit. Commissioner has reported that the ECM of the vehicle which had shown a symptom of failure once right before the first service, and its ultimate failure was the major factor which led to the accident of the vehicle. The error codes of the old ECM could not be retrieved which could have given more clarity towards the root cause of the accident. Insurance company will not give the claim to the defected parts. Commission has reported further that no symptoms of failure or recurring problems were noticed for any of the components in the job record history. Commission has reported that (2.3 in Ext. C1) the PDI of the vehicle was done at odometer reading 10 km on 05.09.2007 as per PDI Chart given by M/s Indus Motors while the entry on the owner’s manual shows that PDI was done at 48 km on 05.09.2007 and delivery of the vehicle was done at odometer reading 48 km on 06.09.2007. According to opposite parties the 1^st reading shown in the PDI Card is the reading shown at the time of delivery of the vehicle from the Maruti. Opposite parties’ stockyard is at Vempalavattom where the vehicle is unloaded from the Truck, then PDI inspection is done at Velloor, registration is done at East Fort and finally vehicle is delivered at Pattom showroom. These activities cannot be performed without running the vehicle, thereby the odometer reading in the owner’s manual shown at 48 km. Commission has reported that PDI was done as routine work and no complaints were reported by the commissioner at the time of PDI. At the time of inspection by the commission, the dickey was found repainted and scratches on the dashboard was still persisting; Commission was reported that the first free service of the vehicle was done on 11.10.2007 at odometer reading 1139 km vide job card No. 0004925. According to him the routine works as per the maintenance schedule were performed. The customer demanded repairs were to correct rear number plate rattling noise and running board cleaning. No other complaints were entered on the job card during the 1^st service. The second service of the vehicle was done on 01.02.2008 at odometer reading 3145 km vide job card No. JC 07002901. The customer demanded repair were rear dickey rusting, check for running board, check for abnormal sound on front left hand sound and to check for inside scratches. No major complaints/defects were pointed out by the customer during the second free service also.

Admittedly, on 07.02.2008 the said vehicle met with an accident. Ext. D5 is the certified copy of the FIR registered by the Venjaramoodu police station. Ext. D6 is the certified copy of the scene mahazar in crime No. 63/08 prepared by S.I of Police, Venjaramoodu. As per Ext. D5 the vehicle in question met with an accident on 07.02.2008 due to rash and negligent driving by the 2^nd complainant and police booked a case under Sec. 279, 337 and 338 IPC. Ext. D7 is the certified copy of the mahazar, in Crime No. 63/08 in respect of the complainant’s vehicle. Ext. D8 is the certified copy of the Report of the Motor Vehicle Inspector in Crime No. 63/08. On perusal of Ext. D8 it is seen reported that the condition of brake at the time of inspection(on 08.02.2008 at 4 p.m) was efficient on action, steering was efficient. It is reported in Ext. D8 that “No mechanical defects noted in the vehicle at the time of inspection”. Ext. D9 is the certified copy of the Accident Cum wound certificate. Ext. D10 is the certified copy of the final report in Crime No. 63/08. Ext. D11 is the certified copy of the statement dated 08.02.2008 of one Prasanna in Crime No. 63/08. Ext. D12 is the copy of the complaint with annexure filed under 11(2) of the MRTP Commission, along with original notice issued to opposite party. Ext. D13 is the original job card of 2^nd free service of Indus Motor Co. Ext. D14 is the letter dated 12.05.2008 issued by National Insurance Company to the Works Manager, Indus Motor Co. Ltd. (seeking the claim). Ext. D15 is the Motor Interim Surveyor Report. Ext. D16 is the copy of the warranty policy. Ext. D17 is the letter dated 19^th May 2008 addressed to Assistant Director General of Investigation & Registration by company Secretaries/Legal Officers of Maruti Suzuki India Ltd requesting to grant extension of time to furnish the reply. Opposite parties 1 & 2 have produced Exts. D1 to D4. Ext. D1 is the copy of the PDI Job Card. Ext. D2 is the copy of the feed-back form. Ext. D3 is the copy of the letter dated 17.04.2008 from Indus Motors to 1^st complainant informing her that after completing all procedural formalities and receiving necessary approval from insurance company, the vehicle will be repaired. Ext. D4 is the copy of the letter dated 02.08.2008 from Indus Motor Company to 1^st complainant informing her that the vehicle is ready in all respects and requesting her to take the delivery of the vehicle at the earliest.

Expert commission, in his Ext. C1 report, has stated as “Considering all those factors stated above and correlating them, the commission arrive in a conclusion that the ECM of the vehicle, which had shown a symptom of failure once right before the first service and its ultimate failure was the major factor which led to the accident of the vehicle”. Commission has been examined as CW1 by opposite parties. In his examination in chief, CW1 has deposed that in India ECM was firstly introduced in the vehicle by Maruti in 1999 and he came to know it after the introduction of MPF vehicles in 2004. According to him abnormal functions, if any, occur in the components in relating to engine, ECM will display the same in the form of error code. CW1 admitted the suggestion put by opposite parties that ECM is an electronic device which receive various signals from sensors mounted in different locations in the vehicle system primarily engine including crank shaft, exhaust manifold etc. ECM converts this signal, adjust and control various activities like injectors engine related control. To a question that what are the companies manufacturing this system (ECM), CW1 has answered that Maruti manufcturing it and he did not know whether other companies manufacturing it. On a suggestion by 3^rd opposite party that it is supplied to Maruti and Maruti not manufacturing ECM, CW1 replied that he did not know it. CW1 admitted the suggestion that malfunction if any occur, the same will be recorded in the ECM in the form of error code. If there is no malfunctions, nothing will be recorded in the ECM. Further CW1 adds if software is corrupt, error code will not be recorded in ECM. According to CW1 if the battery supply is disconnected before retrieval, ECM will not work. CW1 admitted the suggestion put by 3^rd opposite party that air bag is controlled by separate controller sensors and that there is no relation to control air bag with ECM. When asked by 3^rd opposite party that: “Commission report-ന്‍റെ page 9-ല്‍ 4.5 para-യില്‍ പറഞ്ഞിരിക്കുന്ന കാര്യം (if an air bag is deployed in an accident, it will be recorded in the ECM) തെറ്റല്ലേ ? (Q) No in all cases, Maruti-യില്‍ ECM-ല്‍ air bag deploy ചെയ്തു കഴിഞ്ഞാല്‍ ആയത് record ചെയ്യില്ല. എന്നാല്‍ മറ്റു കന്പനികള്‍ ഇറക്കുന്നതില്‍ record ചെയ്യുമായിരിക്കും. ഈ കാര്യം report-ല്‍ പറഞ്ഞിട്ടില്ല (A). CW1 admitted the suggestion put by 3^rd opposite party that in Maruti SX4, separate controllers are present for controlling power steering. ABS and air bags are not controlled by ECM. When a suggestion was put to him, that “Engine off ആയാലും വാഹനം control ചെയ്യാം എന്നു പറയുന്നു”, CW1 said “can be controlled with great effort”. അത്രയും conscious ആയിരിക്കണം. Brake-ന്‍റെ കാര്യത്തില്‍ , power system പോയാല്‍ control ചെയ്ത് stop ചെയ്യാന്‍ കഴിയില്ലേ?(Q) കഴിയും. ABS work ചെയ്യും. Single pedalling break ചെയ്യാം. Multiple pedalling വന്നാല്‍ break ചെയ്യാന്‍ കഴിയില്ല. ഈ വാഹനത്തില്‍ ഇക്കാര്യങ്ങള്‍ പരിശോധിക്കാന്‍ കഴിഞ്ഞിട്ടില്ല എന്നു പറയുന്നു (Q) ഞാന്‍ പരിശോധിക്കുന്പോള്‍ repair ചെയ്ത വാഹനം ആയിരുന്നു. എന്താണ് സംഭവിച്ചത് എന്ന് മനസ്സിലായോ? (Q) ഞാന്‍ മനസ്സിലാക്കിയത് ഒരു വളവില്‍ വാഹനം off ആകുകയായിരുന്നു. ആ സമയത്ത് driver-ക്ക് control നഷ്ടപ്പെട്ടു. വാഹനം ഒരു electric post-ല്‍ ഇടിക്കുകയായിരുന്നു. Electric post ഒടിഞ്ഞ് വാഹനത്തിന്‍റെ മുകളിലേയ്ക്ക് മറിഞ്ഞു എന്നാണ് മനസ്സിലാക്കുന്നത്(A). …......FIR-ല്‍ driver-ടെ rash and negligent driving എന്ന് പറഞ്ഞു കണ്ടു.

On being asked about the Insurance Surveyor report, CW1 said pre-accident condition of the vehicle reported by the surveyor was “OK”. CW1 further deposed that he did not see the accident spot. Asked about the surveyor report, CW1 said surveyor reported that foot brake and hand brake were found efficient. Asked about Assistant Motor Vehicle Inspector report, CW1 said as per Assistant Motor Vehicle Inspector’s report, there were no mechanical defects in the vehicle. It is pertinent to point out commissioner never inspected the accident spot, whereas as per Ext. D8 Assistant Motor Vehicle Inspector’s report there was no mechanical defects in the vehicle at the time of accident, condition of brake was also efficient, while as per Ext. D15 Insurance Surveyor Report also, it is reported that the pre accident condition of the vehicle was OK. Commission inspected the vehicle in question after a long period since the accident which CW1 himself reported as one of the limitations of his Ext. C1 report. Commissioner cannot say how the accident happened since he was not at the spot at the time of accident nor was he an eye witness of the accident nor was he inspected the scene of occurrence. According to opposite parties after the accident, the vehicle in question was driven to the workshop without towing. Further no major complaints were seen reported at the time of first and second free service of the vehicle prior to the accident. The very plea in the complaint is that on 07.02.2008, the vehicle met with an accident and the vehicle was taken by 1^st opposite party for repairing on 08.02.2008 itself and the matter was duly conveyed to the insurance company, though the complainants made repeated demand, requests and reminders the vehicle was not delivered back after repairing. Complainants neither mentioned the nature of accident nor pleaded the proximate cause of accident in the complaint. Admittedly, the vehicle was entrusted to opposite parties for accidental repairs. Though commission has reported that ECM of the vehicle which had shown a symptom of failure once right before first service and its ultimate failure was the major factor which led to the accident, complainant has no such case that ECM was defective prior to the accident, nor was any symptoms of failure to the ECM noted in the first or second free service nor was any malfunction error code found on the ECM, on verification by the commission nor had commission examined its hardware to lead to conclusion that ECM was defective. Further commissioner himself admitted that if there was no defect on any components, the ECM will not record any error code. In this case ECM has not given any error code in the vehicle. That means ECM was perfect prior to accident. Hence the observation of the commission that ECM which had shown a symptom of failure once right before first service and its ultimate failure was the cause of accident has no basis in view of the deposition of the commission in chief examination, and of the reports of the Assistant Motor Vehicle Inspector and Insurance Surveyor. Further, if defective ECM was the cause of the accident the insurance surveyor would definitely point it out in his report which would relieve insurance company from any liability to accidental repair. Further, as observed by the expert commissioner, if ECM was defective the vehicle could not have been plied on the road at all. In view of the above we find that ECM was not defective prior to accident.

Further opposite parties 1 & 2 in their objection to commission report submitted that after the accident the vehicle was started and taken to the workshop by driving and not by towing. It is the say of the opposite parties that after completing the accidental repair the ECM was replaced as a gesture of goodness which is because due to the accident there may be some impact on the old ECM. Moreover, being an electronic equipment due to accidental impact it may develop problems in the future. Further it is admitted by CW1 in cross examination that in Maruti SX4, separate controllers are present for controlling power steering, that ABS and air bags are not controlled by ECM, that vehicle can be controlled with effort even engine is off, that even power system goes vehicle can be stopped by single pedalling. In view of the aforesaid discussion we are of the considered opinion that the accident was not due to manufacturing defect of the vehicle and vehicle in dispute was entrusted to opposite parties 1 & 2 for accidental repair and complainant is entitled to get the vehicle repaired in perfect running condition. In his cross examination, CW1 has admitted that the present condition of the vehicle in question is OK and perfectly in running condition. Since old ECM was replaced with new one by opposite parties as a gesture of goodwill opposite parties shall not levy cost of new ECM from the complainant. There was delay in completing accidental repair and delivery of the vehicle after repair to complainants. In view of the deposition of the expert commission in chief examination that if parts were readily available by properly scheduling the works, the repair work could have been completed within 30 days. Evidently by Ext. P18, the complainant got the first call after completing the accidental repair works on 02.08.2008 which is after a lapse of around 6 months from the date of accident. Inordinate delay in returning the vehicle after repair will amount to deficiency in service on the part of opposite parties 1 & 2 which would definitely cause much agony, pain and economic loss to the complainant. Complainant could not run the vehicle during the said period. Deficiency in service on the part of opposite parties 1 & 2 proved.

In the result, complaint is partly allowed. Opposite parties 1 & 2 shall return the vehicle repaired in perfect running condition to the complainant within two weeks from the date of receipt of this order. Opposite parties shall not collect cost of replaced ECM from the complainant. Opposite parties 1 & 2 shall pay an amount of Rs. 10,000/- towards compensation for delay in returning the vehicle after repair along with a cost of Rs. 2,000/-.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of July 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

jb

C.C. No. 144/2008

APPENDIX

I COMPLAINANT’S WITNESS :

PW1 - K. Thomaskutty

II COMPLAINANT’S DOCUMENTS :

P1 - Photocopy of proforma invoice

P2 - Photocopy of SX4 Feedback card

P3 - Photocopy of feed back form

P4 - Photocopy of the e-mail dated 02.01.2008

P5 - Photocopy of the e-mail dated 03.03.2008

P6 - Photocopy of letter dated 11.01.2008 from 1^st opposite party.

P7 - Photocopy of the certificate dated 16.06.2008

P8 - Photocopy of certificate cum policy schedule.

P9 - Photocopy of the spot survey report

P10 - Photocopy of receipt issued by Venjaramoodu police station.

P11 - Photocopy of the letter dated 08.02.2008

P12 - Photocopy of the job slip.

P13 - Photocopy of the e-mail dated 05.03.2008

P14 - Photocopy of the e-mail dated 10.03.2008 from complainant.

P15 - Photocopy of certificate of experience dated 12.02.2004

P16 - Photocopy of the letter dated 12.05.2008

P17 - Photocopy of the letter dated 25.07.2008

P18 - Photocopy of the letter dated 02.08.2008

P19 - Photocopy of the letter dated 08.08.2008

P20 - Photocopy of the letter dated 13.08.2008

P21 - Photocopy of pre-invoice.

P22 - Photocopy of the registered post.

P23 - Photocopy of the letter dated 14.02.2008

P24 - Photocopy of the proof of delivery(speed post)

P25 - Photocopy of the letter dated 03.03.2008

P26 - Photocopy of the letter dated 10.05.2008.

P27 - Photocopy of the letter from 1^st complainant.

P28 - Photocopy of the service schedule

P29 - Photocopy of the car parts catalog online store.

P30 - Copy of inspection and maintenance

P31 - Photocopy of duplicate discharge summary.

P32 - Copy of income tax card.

P33 - Copy of letter dated 30.04.2004

P34 - Copy of paper cutting dated 11.12.2001.

P35 - Copy of advertisement

P36 - Copy of postal receipts.

III OPPOSITE PARTY’S WITNESS :

DW1 - Bijulal. S.P

DW2 - Samir Jain

IV OPPOSITE PARTY’S DOCUMENTS :

D1 - Photocopy of PDI Job Card.

D2 - Photocopy of the feed back form.

D3 - Photocopy of the letter dated 17.04.2008

D4 - Photocopy of the letter dated 02.08.2008.

D5 - Photocopy of the FIR registered by the Venjaramoodu police station.

D6 - Photocopy of the scene mahazar.

D7 - Certified copy of the mahazar in crime No. 63/08 in respect of the complainant’s vehicle.

D8 - Photocopy of the report of the Motor Vehicle Inspector in Crime No. 63/08.

D9 - Photocopy of the Accident-cum-wound certificate.

D10 - Photocopy of the final report in crime No. 63/08.

D11 - Photocopy of the statement dated 08.02.2008.

D12 - Photocopy of the complaint with annexure filed under 11(2) of the MRTP Commission along with original notice issued to opposite party.

D13 - Original job card of second free service.

D14 - Photocopy of letter dated 12.05.2008.

D15 - Photocopy of Motor Interim Surveyor Report.

D16 - Photocopy of the warranty policy.

D17 - Photocopy of letter dated 19.05.2008.

D18 - Photocopy of letter dated 02.06.2008.

D19 - Photocopy of letter dated 30.09.2008.

V COURT EXHIBIT

CW1 - V.R. Sabu

C1 - Commission Report.

PRESIDENT