KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 565/2018

JUDGMENT DATED: 12.06.2024

(Against the Order in C.C. 194/2015 of DCDRC, Kannur)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

HAR Auto Pvt. Ltd. / HAR Cars, Har Avenue, Kannothumchal, Kannur represented by the Managing Director.

                                                        (By Adv. Thomas P. Jacob)

                                                Vs.

RESPONDENTS:

1. K. Kunhikannan Nambiar, Vandanam, Near Asraya Hospital, Mattannoor P.O., Kannur-670 702.

(By Adv. K.P. Deepa)

2. Maruthi Suzuki India Ltd., Nelson Mandela Road, New Delhi-110 070.

JUDGMENT

SRI. RADHAKRISHNAN. K.R: MEMBER

This is an appeal filed under section 15 of the Consumer Protection Act, 1986, against the order in C.C. No. 194/2015 before the District Consumer Disputes Redressal Commission, Kannur (District Commission for short). The appellants are the opposite parties 1 & 2 before the District Commission.  The District Commission by its order dated 06.08.2018 allowed the complaint and directed the opposite parties 1 and 2 jointly and severally to refund a sum of Rs. 6,39,786/- with interest @ 12 % per annum from the date of complaint till payment along with Rs. 1,00,000/- as compensation and Rs. 5,000/- as litigation costs to the complainant within 30 days of receipt of the order.

2.  Facts of the case are as follows:

The complainant purchased a brand new LDI Maruthi Swift car from the 1^st and 2^nd opposite parties on 21.03.2015. The on-road price of the car was Rs. 6,39,786/- out of which complainant has paid Rs. 1,52,000/- directly to the opposite party and the balance amount was paid through financier.  At the time of delivery of the car the complainant noticed a painting mark on the right back side door handle and it was also found that the front fog lamp was broken.  It was immediately reported to the executive who said that it is only some dust mark and it will be cleared during the first service.  On the basis of the assurance given by the sales team of the opposite parties the complainant took delivery of the car.  After reaching home, the complainant noticed mismatch in the colour, white colour in the body and white yellowish colour on the door and full scratch marks on the bonnet.  The vehicle was taken to Indus Motors, Calicut on 26.03.2015 who also expressed the opinion that it is a used vehicle.  Though the opposite parties were convinced about the genuineness of the defects they did not take any action to resolve the issue. The complainant has suffered much hardships, mental agony, loss of money and time and hence he filed the complaint claiming replacement of the vehicle /refund of the entire amount paid with compensation, interest and costs.

3.  The opposite parties entered appearance and filed their version. Opposite parties 1 and 2 denied all the allegations levelled against them in the complaint and contended that at the time of delivery the vehicle had no defects.  They submitted that no ordinary prudent man will take delivery of the vehicle if there are any defects found on it.  According to them colour mismatch might have occurred during the accident happened subsequent to the delivery of the vehicle and the repainting thereafter. The complainant had visited Indus Motors, Calicut on 26.03.2015 for accident repair. Thereafter on 27.03.2015 the complainant raised the allegations against the opposite parties which are baseless. There is no deficiency of service or unfair trade practice on the part of the opposite parties 1 and 2 and hence they prayed to dismiss the complaint.

4.  The 3^rd opposite party, manufacturer, filed their version stating that they were unnecessary party in the proceedings. All the vehicles including the disputed vehicle were despatched to the dealer after quality check up and no defective vehicle would be despatched to the dealer. The painting process for each vehicle will take approximately 8 hours. The quality of the painting also will be ascertained during the said painting process. After delivery of the vehicle it was brought to a service centre only on 26.03.2015.  The relationship between the manufacturer and dealer are Principal to Principal basis under dealership agreement. The 3^rd opposite party is not liable for any act of omission or commission, if any, on the part of opposite parties 1 and 2.  Hence they prayed to dismiss the complaint against 3^rd opposite party with costs.

5.  Complainant filed proof affidavit and Exts. A1 to A9 were marked and PWs 1 & 2 were examined on his side.  Ext. B1 was marked on the side of the opposite parties.  On the basis of the evidence adduced, the District Commission passed the impugned order.  Aggrieved by the said order, the opposite parties 1 & 2 have filed this appeal. 

6.  Heard both sides. The learned counsel for the appellants admitted having sold the vehicle to the respondent/ complainant.  He submitted that there was no defect in the vehicle at the time of delivery.  The vehicle was used by the respondent after delivery and it met with an accident on 26-03-2015 on their way to Calicut.  The vehicle was repaired at Indus Motors, Calicut.  The vehicle was brought to the dealer by the complainant on the next day of the accident.  Hence if at all there is any damage on the vehicle it is only because of the accident happened during the custody and use of the respondent.    Hence there is no unfair trade practice or deficiency in service on the part of the appellants.  Hence they prayed for setting aside the order of the District Commission.

          7.  The learned counsel for the respondent/ complainant submitted that he has purchased a brand-new vehicle whereas the vehicle given to him was a second hand/ reconditioned vehicle which was manufactured in August 2014.  There was painting mark on the right back side of the door handle and the front fog lamp was broken at the time of delivery.  This was brought to the notice of the executive at the time of delivery itself.  Subsequently after reaching home it was noticed that there was mismatching of colour i.e; white colour in the body and white yellowish colour in the door, scratches on the bonnet etc.  These damages were not visible at the time of delivery as the vehicle was fully decorated to conceal the damages. The opposite parties have cheated the respondent by giving a used vehicle which had an accident history.  The District Commission has rightly found unfair trade practice and deficiency in service on the part of the opposite parties/appellants. Hence, he prayed for confirming the order of the District Commission.

          8.  We have considered the submissions on both sides and perused the records.  The complaint is regarding   mismatch in the colour of the vehicle and breakage of the fog lamp of the brand-new vehicle purchased by the respondent from the appellants.  According to the respondent the scratches on the door handle and breakage of the fog lamp were reported to the dealers immediately on delivery of the vehicle.  He has reported other damages as and when he noticed the same after reaching home.  Former sales executive of the appellants was examined as PW2.  He was working with the dealer for about 9 months during which the vehicle was sold.  According to him he was on leave on the date of delivery of the vehicle on 21-03-2015.   However, at the request of the respondent he visited his house and seen the damages.  He advised the respondent to contact the dealer at Kannur for resolution of the problem.  On the side of the appellants/opposite parties DW1 deposed that the damages of the vehicle was happened because of the careless use of the complainant after the vehicle was delivered to him.  The vehicle was given to the respondent in good condition and without any defects.  According to the respondent the vehicle is a used vehicle which met with an accident earlier and the damages are reported by the expert Commissioner.

          9. The respondent admitted having taken the vehicle to Calicut for attending a wedding on 26.03.2015.  There was a minor accident on the way.  There were scratches on the bumper which was repaired at Indus Motors, another Maruti Dealer, at Calicut.  Ext.A6 is the job card dated 26.3.2015 of Indus Motors. The kilometre reading written in the service book at the time of delivery was 91 kilometres and the kilometres noted by the Indus Motors is 357 kilometres which proves the use of the vehicle by the respondent.  As per job card an amount of Rs.900/- was paid as labour charge for the repair of front bumper side.  Thus it is evident that it was not a major accident.

          10. An expert commissioner, AMVI Kannur, was appointed by the District Commission to inspect the vehicle.  He inspected the vehicle on 21-08-2015 and submitted his report on 25-09-2015.  His report was marked as C1.  His report includes the following observations:

“(i) It is found that RHS front and rear door repair and repositioned and colour defects observation by visual inspection.

(ii) Fog lamp in front left side broken.”

We observe that the vehicle was taken to Indus Motors, Calicut for minor repairs of the front bumper.   Ext A6, Job card is silent about any other damages.  If the accident was a major one and if the defects in the painting on the doors and the bonnet were due to the said accident, the Indus Motors would have noted it in the job card and done repairs for that damages also.  They could also have claimed insurance claim as the vehicle is having a ‘Nil depreciation’ insurance policy.  Hence we do not agree to the contentions of the appellants that the painting mismatch was due to an accident happened in the hands of the respondent.  The expert commissioner has confirmed the mismatch of the painting and the damages to the fog lamp. Defects pointed out by the expert commissioner are sufficient to believe that the vehicle in question was having damages at the time of delivery.

11.  The buyer of a brand new vehicle may have lot of expectations about the vehicle.  Once the complainant paid the full sale consideration for a new car, duty is cast upon the dealer to supply the   new car which was booked and if not done so, it would tantamount to unfair trade practice. Appellants are duty bound to sell a brand-new vehicle in good condition in all respects, without any damages in the vehicle and duly acknowledged by the customer.  The vehicle should be free from even a scratch. Appellants should have attended the customer properly and in time when he approached for solution of his grievances.  Defences of the appellants are not convincing. On the basis of the foregoing discussions, we do not find any error in the finding of the District Commission that there was deficiency in service and unfair trade practice on the part of the appellants/opposite parties.

12.  The complainant was examined as PW1.  He deposed that he went to Calicut in the new car for attending a wedding.  He admitted that there was no complaint on the performance of the vehicle or its mechanical parts. The vehicle is in his custody.  As is evident the vehicle is running smoothly.  We are of the view that the defects pointed out in the report of the expert commissioner are not sufficient to believe that the vehicle in question requires replacement with new vehicle.  The damages discussed earlier does not warrant replacement of the vehicle or refunding the entire price paid.  Appellants have placed reliance of the ruling of the Hon’ble Apex Court in Maruti Udyog Ltd vs Susheel Kumar Gabgotra & Anr wherein it was observed that directing replacement of the vehicle in cases of defective parts only, is not justified. In Mahaveer Stone Crushing Co vs Tata Motors Ltd (Civil Appeal No 6730/2010 decided on 24.03.2022) the Hon’ble Apex Court has decided a case in which a repaired/repainted vehicle was delivered. The relevant observations of the apex court are quoted below:

“9………. Going by the contents of the report it is clearly indicated that the vehicle was found repainted 80%. Further the paint had discoloured and had turned yellow instead of white which was the colour of the vehicle. This is apart from finding that the vehicle was repaired from right side, left side and back side. While it may not be possible for this Court to conclude that there is any manufacturing defect as such, taking into consideration the totality of the facts, we would think that the interest of justice would be served if we direct that the respondent shall pay a lump sum amount of Rs. 1,60,000/- by way of compensation to the appellant in place of what has been ordered by the State Commission.”.

13. Considering the facts of the case and various decisions of the Apex Court we are of the view that the District Commission erred in directing the appellants to refund the entire price paid for the vehicle.  However, at the same time it is a case where the vehicle was delivered to the complainant by repainting and matching the same with the original colour and so the respondent / complainant should be suitably compensated.

14. We have found that this is not a fit case which warrants replacement of the vehicle as there is no mechanical damage or manufacturing defects. However we observe that the expert commissioner has not commented about charges for the repairs/ repainting of the vehicle.  In our view repainting of the portion of the car where there is mismatch of painting and replacement of the fog lamp will be sufficient to meet the ends of justice.  Hence we are of the view that, an amount of Rs.100,000/- (Rupees One Lakh only) will be just  and reasonable  towards the  cost of repainting. We have also examined the fairness of the amount of compensation awarded, commensurate with the sufferings of the complainant. In our view the compensation of Rs.1,00,000/- (Rupees One Lakh)  awarded to the complainant is on the higher side.  We find it just and appropriate to fix a compensation of Rs.50,000/- (Rupees Fifty Thousand).  We are of the view that the interest of 12% awarded by the District Commission on the amount payable as per the order is on the higher side.  In our opinion an interest @ 9% per annum is reasonable and hence we reduce the same to 9% interest per annum. So the order passed by the District Commission is to be modified to that effect. The costs of Rs. 5,000/- allowed by the District Commission is reasonable.

In the result, this appeal is partly allowed and the order dated 06.08.2018 in C.C. No 194/2015 of the District Commission is modified with the following directions:

1.   The appellants are directed to pay Rs. 1,00,000/- (Rupees One Lakh only) as cost of the painting charges.
2. The appellants are directed to pay compensation of Rs. 50,000/- (Rupees Fifty Thousand only).
3.   The appellants are also directed to pay Rs. 5,000/- as costs as directed by the District Commission.
4. The amount under (1) and (2) above shall carry interest at the rate of 9% from the date of filing the complaint ie. 15-05-2015.

The appellants have deposited an amount of Rs. 25,000/-(Rupees Twenty Five Thousand only) towards statutory deposit at the time of filing the appeal. The 1^st respondent/complainant is permitted to obtain release of the said amount on filing proper application.  The balance amount due shall be paid by the appellants/ opposite parties within one month from the date of receipt of a copy of this order failing which the 1^st respondent/complainant is at liberty to initiate appropriate proceedings for executing the order. 

AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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