IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 28th day of June, 2014
Filed on 19.3.2009
Present
1) Smt. Elizabeth George (President)
2) Sri. Antony Xavier (Member)
3) Smt. Jasmine D (Member)
in
CC/No.130/2009
Between
Complainant:- Opposite parties:-
Sri. Rajesh. K.R. 1. Sri. Jayakrishnan, Manager in charge
Kalavelil House Hercules Auto Mobiles International
Kattoor P.O. Pvt. Ltd., Maruti True Value Division
Alappuzha N.H. 47, Pathirappally, Alappuzha
(By Adv. M. Sunilkumar)
2. Sri. Praveen, Sourcing Agent
Hercules Auto Mobiles International
Pvt. Ltd., Maruti True Value Division
N.H. 47, Pathirappally, Alappuzha
(By Adv. C. Parameswaran – for
Opposite parties 1 and 2)
3. The Chief General Manager
Sales Support, Maruti Suzuki India
Ltd., Kasturba Gandhi Marg, 25,
New Delhi – 111 001
(By Adv. P.S. Geethakumari)
O R D E R
SMT. JASMINE D. (MEMBER)
The complainant filed this complaint before this Forum on 19.3.2009 alleging deficiency in service on the part of the opposite parties. The brief facts of the allegations of the complainant is as follows:-
On 17.11.2008 the complainant had purchased a pre owned Maruti Zen VXI vehicle bearing Reg. No. KL-04 Q 6225 from Hercules Automobiles International Pvt. Ltd., Maruti True Value Division, Alappuzha. He booked the vehicle on 14.11.2008 by paying an amount of Rs.5000/- after making a test drive of the said vehicle. At the time of this test drive, the complainant pointed out several complaints for the vehicle and the 1st opposite party assured the complainant that the vehicle will be delivered only after rectifying the defects on 17/11/2008. The complainant purchased the said car after paying the balance amount of Rs.2,43,500/- . But after the delivery of the vehicle, the complainant realized that the complaints which he noticed at the time of test drive were still existing. Thereafter the complainant approached the 1st opposite party for getting the vehicle repaired. But the opposite party refused to do so. Thereafter on 6.1.2009, the complainant sent a lawyer’s notice to the opposite parties with a demand for getting the vehicle repaired. Consequently the 1st opposite party requested the complainant to produce the vehicle at their authorized work shop and the service engineer of the workshop noted almost all the complaints mentioned by the complainant. But the 1st opposite party declined to accept the same. Subsequently the 1st opposite party again requested the complainant to produce the vehicle for further check up. But the defects were not rectified. Hence the complainant filed this complaint alleging deficiency in service on the part of the opposite parties. The complainant further alleged that 3rd opposite party is also liable for the acts committed by the 1st and 2nd opposite parties.
2. The 1st and 2nd opposite parties filed joint version, and their version is as follows:-
The vehicle was delivered to the complainant in a perfect road worthy and defect free condition. Also 1st opposite party had never refused to attend the vehicle as alleged. The demanded service in the job card was attended as per True Value warranty terms and conditions. The complainant took the delivery of the vehicle with full satisfaction and the vehicle was defect free. Also the complainant approached M/s. Popular vehicles and services Ltd., Cochin for obtaining 1st True Value Free inspection and the service engineer there did not observe any problem as alleged by the complainant. Also contended that the complainant was using the said vehicle in most reckless manner and he is inviting defects. The opposite parties had rendered proper service to the complainant and there is no deficiency in service on the part of the opposite parties.
3. The 3rd opposite party filed separate version and the version in short are as follows:-
The complainant is bad for misjoinder of party and is liable to be dismissed. According to the established principal of caveat emptor the purchaser should have been vigilant about the products and the quality. So that the opposite parties cannot be held liable. Also Maruti True Value pre owned programme offers a one year warranty or 15000 k.ms. which ever occurs earlier and 3 free service to this vehicle. Also denied that vehicle in question has suffered from defects and the complainant noticed any defects in the test drive. It was further submitted that each vehicle before sale is put through a rigorous 120 points check before being accepted and certified by this opposite party. Also the transaction has taken place between the complainant and opposite parties 1 and 2. They are authorized True Value dealers and sell the vehicle to their customers independently under their own contract and by their own invoice and sale certificate. There is no act on the part of this opposite party causing loss or damages to the complainant. So the complaint is to be dismissed.
4. Once the matter was heard and allowed in favour of the complainant and the aggrieved party filed appeal before the Hon’ble CDRC and the case was remanded back to the Forum. Thereafter the Forum has passed a one line order as dismissed. As per the order of Hon’ble CDRC again the case was remanded to Forum for hearing both parties and to pass a detailed order. Notices were served to the parties and heard the learned counsels for the parties.
5. The complainant’s evidence consists of proof affidavit of the complainant and documents – Exts.A1 to A12 were marked. The complainant was examined as PW1. 3rd opposite party was examined RW1 and documents B1 to B5 were marked.
6. Considering the allegations of the complainant and the contentions of the opposite parties the Forum has raised the following issues:-
1) Whether there is any deficiency in service or negligence on the part of the opposite
parties?
2) Whether the complainant is entitled to get the relief sought for?
7. Point Nos.1 and 2:- Points 1 and 2 can be considered together. The complainant’s specific case is that he had purchased a pre owned Maruti Zen VXI bearing Reg. No. KL 04 Q 6225 from the Hercules Automobiles International Pvt. Ltd.. 1st opposite party is the Manager and 2nd opposite party is the Sourcing agent and the 3rd opposite party is the Chief General Manager, Sales Support, Maruti Suzuki India Ltd., New Delhi. The complainant booked the car on 14.11.2008 and remitted an advance amount of Rs.5000/- . After making a test drive of the said vehicle, he pointed out some defects and opposite party assured that the defects will be rectified before the delivery of the vehicle. And the complainant took the delivery of the vehicle on 17.11.2008 after remitting the balance amount and the total price of the vehicle was 2,43,500/-. After that the complainant realized that the defects which he pointed out at the time of test drive were not rectified. Thereafter the complainant demanded the opposite parties 1 and 2 to rectify the defects. But the opposite parties have not done so and on 6.1.2009 the complainant sent a lawyer’s notice. Subsequently, the complainant was instructed to bring the vehicle at Alappuzha Service Centre. Complainant done accordingly. But the defects were not rectified and much mental agony sustained to him.
8. The contentions of the opposite parties were that the said vehicle was delivered in a defect free condition and the vehicle has 3 free services. The complainant availed all the 3 services and the demanded services in job card was attended as per the True Value terms and conditions. To find out whether the opposite parties had committed deficiency in services, we have perused the documents placed before us. Ext.A1 is the receipt issued by the opposite parties to the complainant towards the payment of Rs.5000/- on 14.11.2008. Ext.A2 is the receipt issued by the opposite parties to the complainant towards the payment of Rs. 2,38,500/- on 17.11.2008. From Ext.A1 and A2, it can be seen that the total sale consideration of the vehicle was Rs.2,43,500/-. Ext.A3 is the pre owned car booking form and from this it can be seen that the complainant booked the said vehicle on 14.11.2008 after paying an advance amount of Rs.5000/-. Ext.A4 is the delivery receipt. From this it can be seen that the complainant had purchased a Zen VXI car bearing Reg. No.KL 04 Q 6225 and he took the delivery on 17.11.2008. Also he has received documents, such as RC book, duplicate key, insurance policy owner’s manual and Tax token. Ext.A5 is the legal notice. Ext.A6 is the a/d card, it shows that the same was received by the opposite parties. Ext.A7 is the postal receipts of notices issued to the opposite parties. Ext.A8 is the retail invoice dated 2.12.2008. From this it can be seen that the complainant had purchased EXIDE battery from Pradeep Traders for an amount of Rs.2,149/- for the said vehicle on 2.12.2008. Ext.A9 is the Maruti True Value Owner’s Manual and service book let specifying the warranty policy. From this, it can be seen that the vehicle has one year warranty or 15000 k.ms. warranty whichever comes earlier. Ext.A10 is the 3 service bills dated 27.11.2008. Ext.A11 is a letter from the opposite party dated 6.2.2009 intimating the complainant to bring the vehicle to Alleppey Service Centre on 10.2.2009. From this it can also be seen that the vehicle was inspected previously on 29.1.2009 and for want of time they could not repair the vehicle properly. Ext.A12 is the reply notice for Ext.A11.
9. Opposite parties 1 and 2 have not filed proof affidavit or produced any documents 3rd opposite party filed proof affidavit and was examined as RW1 and documents Exts.B1 to B5 were marked. Ext.B1 is the copy of Maruti True Value certification given to vehicle Maruti Zen VXI bearing Reg. No. KL 04 Q 6225. Ext.B2 is the copy of warranty policy. Ext.B3 is the copy of job card dated 22.11.2008. Ext.B4 is the copy of job card dated 3.2.2009. Ext.B5 is the copy of job card dated 27.5.2009. On a perusal of the documents, it is clear that the vehicle delivered by the opposite party was defective, since its very purchase or immediately after the purchase itself. Also the defects were brought to the notice of the opposite parties. From Ext.B3 is the copy of job card dated 22.11.08 ie. 4 days after the purchase of the vehicle it can be seen that the complainant went to the opposite party for repair of the vehicle. Also in the remarks column, opposite party mentioned about axle sound and complaint relating to power steering. From Ext.A8 it can be seen that the complainant has purchased Exide battery for the said vehicle on 2.12.2008. This is also immediately after the purchase of the vehicle. Also the legal notice Ext.A6 was sent to the opposite parties on 6.1.2009 that is also immediately after the purchase of the said vehicle. In Ext.A9, it was specifically mentioned vehicle under GR category (The said vehicle comes under this category) has one year warranty or 15000 k.ms. warranty whichever occurs earlier. Also the complainant pointed out all the defects in the warranty period itself. Ext.A11 is the letter dated 6.2.2009 from opposite party intimating the complainant to bring the vehicle to Alleppy Service Centre and in the letter it was also stated that on previous inspection, they could not repair the defect for want of time. So it is clear that the defect was not rectified. Also complainant sent a notice (A12) prior to the filing of the complaint intimating that legal proceedings will be initiated. But the opposite party has not made any earnest effort to rectify the defects of the car. It appears that except filing a version by 1st and 2nd opposite parties no attempt has seemingly been made to let in evidence to substantiate their contentions. At the time of hearing the matter, the learned counsel for opposite parties 1 and 2 argued that the alleged defects are technical in nature and the same can be proved only by examining the vehicle by an expert. In this case there was no such report. Also placed an order of the Hon’ble National Commission in Kumari Nanrata Singh Vs. Manager Indus …..A division of electrotherm and another 2012(3) CPR 570 NC. Hon’ble Apex Court held that ‘For proving fact of manufacturing defect, expert opinion is necessary.’ Here the defects alleged by the complainant are not manufacturing defect. It is a pre owned vehicle 2004 model. He purchased the vehicle under Maruti True Value Certificate. The complainant has not mentioned anywhere in the complaint or proof affidavit or other documents that the defects are manufacturing defects. In this context the Forum is of the opinion that no expert opinion is need to prove the case of the complainant. The documents adduced by the complainant substantiate his allegations. The allegations put forward by the complainant against the opposite parties are highly genuine. Also in the Ext.B3 job card dated 22.11.2008 in the remarks column it is mentioned about axle sound as well as the complainant relating to power steering. It is pertinent to note that this is after 4 days from the delivery of the vehicle. The vehicle delivered to the complainant was imperfect and the defects were not yet rectified. The complainant has purchased the vehicle from the opposite parties 1 and 2 after paying a total amount of Rs.2,43,500/-. The vehicle has one year warranty. Immediately after the purchase, the complainant noticed defects. Also the defects were not rectified by the opposite parties. It shows deficiency in service on the part of the opposite parties. The acts of the opposite parties caused much inconvenience and mental agony to the complainant. The complainant filed this complaint in 2009, but after this prolonged proceedings, we can’t direct the opposite parties to rectify the defects or to pay the money for repair. The condition of the vehicle could not have been same as that of earlier. So the complaint is allowed partly. Also 1st opposite party is the authorized dealer of 3rd opposite party and also vehicle was brought under Maruti True Value Certification and warranty, and also complainant bought the vehicle believing the words of 1st and 2nd opposite parties. They are also liable to compensate for mental agony and inconvenience caused to the complainant.
In the result, the complaint is allowed partly. The opposite parties are directed to pay an amount of Rs.25,000/- (Rupees twenty five thousand only) as compensation towards the mental agony and inconvenience caused to the complainant and also pay amount of Rs.2500/- (Rupees two thousand and five hundred only) as cost of this proceedings. The opposite parties are jointly and severally liable to comply with the order within 30 days from the date of receipt of this order.
Pronounced in open Forum on this the 28th day of June, 2014.
Sd/- Smt. Jasmine.D. (Member) :
Sd/- Smt. Elizabeth George (President):
Sd/- Sri. Antony Xavier (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Rajesh. K.R. (Witness)
Ext.A1 - Receipt for Rs.5000/-
Ext.A2 - Receipt for Rs.2,38,500/-
Ext.A3 - Pre-owned Car booking Form
Ext.A4 - Delivery receipt
Ext.A5 - Advocate notice
Ext.A6 - Acknowledgement card
Ext.A7 - Postal receipts
Ext.A8 - Retail invoice
Ext.A9 - Service booklet
Ext.A10 - Job Card Retail Cash memo
Ext.A11 - Letter dated 6.2.2009
Ext.A12 - Copy of the registered letter with acknowledgement card
Evidence of the opposite parties:-
RW1 - Mohammed Bilal (Witness)
Ext.B1 - Maruti True Value Certification (Photo copy)
Ext.B2 - Warranty Policy (Photo copy)
Ext.B3 - Job card – Annexure R-3/3 (Photo copy)
Ext.B4 - Job card – Annexure R-3-4 (Photo copy)
Ext.B5 - Job card – Annexure R-4/5 (Photo copy)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/- Compared by:-
