KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL Nos. 369 & 386/2011
COMMON JUDGMENT DATED 14.11.2011
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
APPEAL No. 369/11
APPELLANT
M/s. Joseph Mathew Thomas & Co.,
Vivail Building,
K.K. Padmanabhan Road,
Kochi – 18,
Represented by its Managing Partner T.M. Joseph
(By Adv. A.A. Mohammed Nazir)
Vs
RESPONDENTS
1. Maruti Udyog Ltd., Palam Gurgaon Road,
Gurgaon – 122015
Represented by its Manager.
2. Sai Service Station Ltd.,
50/115 L, Cheranelloor Road,
Edappally P.O., Kochi – 24,
Represented by its Manager.
(R2 by Adv. C.S. Rajmohan)
APPEAL No. 386/2011
APPELLANT
Maruti Suzuki India Limited
(Formerly Known as Maruti Udyog Limited)
Registered Office at
Plot No.1, Nelson Mandela Road,
Vasant kunj, New Delhi – 110070
(By Adv. V. Santharam & G.S. Prakash)
Vs
RESPONDENTS
1. M/s. Joseph Mathew Thomas & Co.,
Through Mr. T.M. Joseph
It’s Managing Partner, 42/1924 – B,
Vivail Building, 2nd Floor,
K.K. Padmanabhan Road, Kochi – 18.
(R1 by Adv. A.A. Mohammed Nazir)
2. Sai Service Station Ltd.,
50/115 L, Cheranelloor Road,
Edappally P.O., Kochi – 24,
(R2 by Adv. C.S. Rajmohan)
COMMON JUDGMENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
These appeals are preferred against the order dated 17.1.2011 of CDRF Ernakulam in C.C. 66/2002. By the impugned order the first opposite party is under directions to replace the car with a new one according to the choice of the complainant or refund the price of the car as per Ext. A6 Invoice. The first opposite party is also directed to pay Rs. 2,000/- as costs to the complainant. Appeal 369/2011 is filed by the complainant and Appeal 386/11 is filed by the first opposite party.
2. The case of the complainant before the Forum was that he had purchased a Maruthi Wagon R car from the second opposite party on 17.4.2001 for a sum of Rs. 3,86,407/- and that he paid another sum of Rs. 30,075/- towards registration charge, insurance charge and road tax. The first opposite party is the manufacturer of the vehicle. The complainant has alleged that on 23.4.2001 the vehicle was handed over to the second opposite party and certain repairs were carried out and inspite of the said repairs the vehicle had the same defects. Though the first service was conducted on 16.6.2001, the defects were continuing and that it was found that the vehicle was not roadworthy. The complainant has further stated that even though the defects were reported to the regional office of the first opposite party, and though a representative came and noticed the defects, the vehicle was having the defects it had earlier. The complainant’s case is that the vehicle was defective and a worn out one and the opposite parties had resorted to unfair trade practice apart from deficiency in service. The complaint was filed for the replacement of the vehicle or the refund of the price along with compensation and costs.
3. The first opposite party in their version contended that the complaint is not maintainable and that there was no defects to the vehicle. It was also stated that the Service Engineer of the first opposite party had inspected the vehicle on 31.5.2001and did not find any defect in the vehicle and the vehicle was free from any defect. The second opposite party also supported the contentions of the first opposite party and they took a further contention that the vehicle was not periodically serviced as per the maintenance schedule. The allegation that the vehicle was not roadworthy was denied by the second opposite party.
4. The Forum had dismissed the complainant by its order dated 23.4.2002 and on appeal by the complainant, the matter was remanded to the Forum below in which the complainant was examined as Pw1 and Exts A1 to A 35 were marked on his side. The Commissioner who was appointed to examine the vehicle had filed a report and the same was marked as Ext. C1. The expert Commissioner was examined as Pw2. The witness of the first opposite party was examined as Dw1 and Exts. P1 to P3 were marked on the side of the opposite parties. The Forum below allowed the case of the complainant vide its order dated 30.1.2006 against which the opposite parties filed appeals and once again the matter was remanded to the Forum below for passing an order in accordance with law. After remand of the matter on payment of
Rs. 25,000/- by the first opposite party, the matter was re examined wherein Ext. A36 to A38 were marked and another witness on the side of the opposite parties was examined as Dw2 and Exts. B1 to B10 were marked. It is based on the said evidence that the Forum below passed the impugned order.
5. Heard both sides in the respective appeals.
6. The learned counsel for the complainant/appellant who is not satisfied by the order, has argued before us that the appeal is filed for getting compensation and costs along with further direction to the opposite parties to pay the amount of Rs. 30,075/- which was paid towards the insurance, registration charges, road tax etc. It is his very case that the Forum below ought to have allowed the refund of the said amount with compensation and costs. He has submitted that after having found that the vehicle was having manufacturing defects and also that the complainant was put to great hardships, the Forum below ought to have awarded compensation also as prayed for in the complaint. The learned counsel submitted that the complainant was conducting this case as back from 2002 onwards and he was denied the usage of the vehicle from 2001 onwards. It is his very case that in the said circumstances, the Forum below ought to have awarded costs also for the proceedings through out.
7. On the otherhand, the appellant in Appeal 386/2011 who is first opposite party has argued that the Forum below was not correct in directing the opposite party/appellant to replace the vehicle or to refund the price. It is submitted by him that even the commissioner has not stated that the vehicle had inherent manufacturing defects. He has also argued for the position that the complainant was also at fault in not getting the defects cured at the appropriate time. The learned counsel submitted that the Forum below has failed in appreciating the fact that the vehicle was purchased in the year 2001 and it will be unjust and oppressive to direct the opposite party to replace the vehicle or refund the price after a period of 10 years. He has also a case that the complainant was using the vehicle for a pretty long time and if the vehicle had such grievous manufacturing defects, there was no chance of plying the vehicle by the complainant for all these years. He has relied on the decision of the Hon’ble National Commission in Seema Gandhi Vs Maruthi Zuzuki India Ltd. III(2011) CPJ (42) NC wherein it is held that if there is no manufacturing defects, there cannot be a direction to replace the vehicle or refund its price. Thus the learned counsel canvassed for the position that the order of the Forum below is liable to be set aside.
8. On hearing both sides, and also on perusing the records, we find that it is the admitted case of all the parties that the complainant had purchased the Wagon R car from the second opposite party, which is manufactured by the first opposite party, on 17.4.2001 on payment of Rs. 3,86,407/- It is also seen from evidence that the complainant had raised complaints regarding certain defects of the car from the very beginning itself. It is stated that on 23.4.2001, the representative of the second opposite party was contacted by the complainant and the vehicle was collected by the second opposite party and stated that the defects were cured. The complainant has a case that even after the first service on 6.6.2001, the defects were not cured, and the same were persisting. He has also a case that the first opposite party had admitted that the service engineer of the first opposite party had inspected the vehicle on 31.5.2001 though the first opposite party had contended that the vehicle had no defects at all. On a perusal of the Exts. A16 to A34, it is found that the complainant was informing the opposite parties regarding the defects of the vehicle every now and then. In Ext. A23, the opposite party had expressed their regret for the inconvenience caused to the complainant for the engine jerk which would give an indication that the opposite parties were aware of the defects in the vehicle which were spelt out through the letters given and received by the complainant. The Commission report also shows that the vehicle had certain defects and on examination of the Commissioner as Pw2 he has stated that he had noted serious defects in the vehicle. All the same, he has also stated that the vehicle had run 9007 kms as on the date of inspection. It is also seen that the inspection was done on 14.5.2005. On a perusal of the Commission Report , we find that the Commissioner had checked 14 points of which the jerkey acceleration at low speed is still there and also he had noticed defects for the front suspension and spring set shackles etc. Inshort, it is noted that the commissioner had noticed certain major defects in the vehicle. The opposite parties would argue that the defects were rectified and it was the complainant who was reluctant to get the defects rectified at the proper time. On an examination of the entire facts and circumstances, we find that after a span of 10 years, it will be hard to direct the opposite party to replace the vehicle or to refund the price to the complainant. Moreover it is also noticed that the complainant was using the vehicle though with certain defects. As argued by the learned counsel for the appellant/first opposite party if the vehicle had serious manufacturing defects as alleged by the complainant, the vehicle could not have been plied even for a small distance. In the back drop of the said facts and circumstances we are not inclined to sustain the order of the Forum below directing the first opposite party to replace the vehicle or to refund the price of the vehicle at this belated stage. All the same it is found that the complainant was deprived of the proper use of the vehicle. He has purchased a new vehicle not to be stranded in the workshops every now and then. One purchases a new vehicle for a trouble free driving. The problems like jerkey acceleration at low speed, trouble in gear shifting mechanism, steering vibration etc. would definitely cause inconvenience, discomfort and mental strain to the complainant. Though the opposite party would say that the complainant was not willing to bring the vehicle for rectifying the defects, it is the admitted fact that the vehicle had the defects as stated above. In such a situation, the complainant has to be compensated for the inconvenience and other hardships endured by him. We feel that it will be just and proper to direct the first opposite party to pay the sum of Rs. 2 lakhs, as compensation to the complainant. The first opposite party/appellant is also directed to give instructions to the second opposite party to rectify the defects in the vehicle and to make it roadworthy free of cost within one month from the date of receipt of order, failing which they will be liable to replace the vehicle or refund the price at the option of the complainant. The complainant is also entitled to cost of Rs. 5,000/- for the proceedings throughout.
In the result, both appeals are allowed in part. The order dated 17.1.2011 in C.C. 66/02 of CDRF, Ernakulam is modified as follows:
1) The first opposite party/appellant is directed to give instructions to the second opposite party/second respondent to rectify the defects of the vehicle and make it roadworthy free of cost and pay compensation of Rs. 2,00,000/- (Rupees two lakhs only) within one month from the date of receipt of this order failing which the first opposite party shall replace the vehicle with a new one or refund the price of the vehicle at the option of the complainant within another one month. In the event of refund of, the amount carrying the price of the vehicle, the same shall carry interest @ 12% per annum from the date of default till the date of payment. On payment of the amount, the complainant is directed to handover the vehicle to the first opposite party.
2) The first opposite party/appellant is also directed to pay the sum of Rs. 5,000/-(Rupees Five thousand only) towards costs to the complainant for the proceedings throughout.
The office is directed to return the LCR along with a copy of this order to the Forum below urgently.
S. CHANDRA MOHAN NAIR : MEMBER
ST
