Date of filing : 01-10-2011
Date of order : 27-11-2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.250/2011
Dated this, the 27th day of November 2014
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.K.G.BEENA : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Moideen Muneer.C.K, S/o.Abdulla, : Complainant
Kekkepuram, Kekkepuram House,
Po.Chengala, Kasaragod Dist .
(Adv.Benny Jose, Kasaragod)
1 The Manager, KVR Dream Vehicles Pvt.Ltd, : Opposite parties
Pannalam, PO.Vidyangar, Kasaragod.Dt.671123
2 The Authorized Signatory, TATA Motors Ltd,
Bombay House, 24, Homi Modi Street,
Mumbai, Maharashtra
(Adv.B.K. Mahin, Kasaragod)
O R D E R
SMT.SHIBA.M.SAMUEL,MEMBER
The gist of the complainant’s case is that he had booked one TATA Indica V2 DLS car by remitting an amount of Rs.1,000/- as advance on24-02-2011 as per the instruction of Opposite party No.1. Opposite party No.2 is the manufacturer of the car. On 3-3-2011 he had remitted an amount of Rs.80000/-. opposite party No.1 assured that he will arrange easy finance from TATA Motors Finance Ltd. Accordingly an amount of Rs.3,05,000/- was arranged as finance from TATA Motors finance Ltd. The car was delivered on 7-3-2011. After few days of purchase complainant noticed that all the four window glasses are shaking in an extra ordinary manner with a heavy noise. On 14-03-2011 it was reported to opposite party No.1 and the car was handed over to him but even after repair, the same defect continued. In rainy season water started to ooze in to the car through all the window panels and used to stagnate inside the car which resulted in foul smell and the car was unfit for use. The same was again informed to opposite party No.1 on 18-06-2011. But unfortunately the same problems and other defects started one after another and the oozing of water remained as such even after repair. All these caused to pain and mental agony to the complainant. The complainant alleged that opposite party No.1 supplied the car with manufacturing defect through his outlet. Opposite party No.2 without ensuring its quality and standard delivered the car and hence the complaint.
2. Notice to opposite party served and both of them appeared before the Forum and filed version. Opposite parties contended that the financier who is the registered owner of the vehicle has not filed any complaint or raised any grievance. The present complainant is only a hirer who is not filed complaint independently. The opposite parties herein further seriously contended that the complainant booked the aforesaid car without power windows. And hence the complaint regarding the leakage and shaking of power windows are not at all answerable by this opposite party. The Service done by the opposite parties were free of cost under warranty condition and they have done periodic maintenance also. It is further submitted that the complainant had paid Rs.1,462/- towards the winding glass front door TINTED L.H. which was altered and fitted against the norms of the manufacturer. Hence they are not liable for any damages sustained to the complainant. Due to the modification done by the complainant he might have invited contributory and voluntary defects for which the opposite parties are not liable to compensate, and the vehicle was in perfect and excellent condition when it was sold out. Hence the complaint is liable to be dismissed .
3. The points for consideration are:
1 Whether there is any deficiency in service on the part of opposite parties?
2 If so, what is the relief and cost?
4. Point Nos.1&2: On perusal of documents produced before the Forum and also while going through the evidence on both sides the Forum finds the following points. From the side of the complainant Exts.A1 to A5 were marked. Opposite party has produced some documents which were marked as Exts.B1 to B3.
The specific case of the complainant was that the subject matter in the above case was having some manufacturing defects without insuring the quality and this car was repaired from the opposite party No.1 on several occasions. Exts.A1 to A4 are the tax invoice in respect of the work done for the subject matter of the above case. On perusal of Ext.A2 , A3 and A4 clearly mentioned about the miscellaneous and other work done for the door glass, door pad and replace of fuel tank etc which supports the case of the complainant herein. The complainant had a specific case that the doors of the TATA IndicaLS car were shaking in an extra ordinary manner with heavy noise and in the rainy season water started ooze in to the car through all the four window channels and started to stagnate inside the car which rendered the car unfit for use. Eventhough the opposite party had specifically contended that the above mentioned model of car manufactured by opposite party No.2 was without power windows, in order to substantiate the same opposite party has produced and marked as Ext.B1 before the Forum. The complainant had taken out an expert commissioner to note and report about the defects of the car. The forum appointed that the Head of the Department, Department of Mechanical Engineering LBS College of Engineering as the expert commissioner. He has filed two reports on his inspection and the same was marked as Exts.C1 and C2. The points noted by the commissioner are very relevant as far as the complainant’s case is concerned. As per Ext.C1
- All the four window glasses, in half lifted position, make considerable shaking
and noise.
- When the car is exposed to rain water, water is found deposited inside the car,
when the doors are in closed position.
3. It is difficult to open the fuel tank lid, with the use of lever inside the vehicle.
The proper alignment of the lid is not found, it is also observed that the lid is
in the damaged condition due to mishandling.
4 From the data’s available from the writing on the window glasses, it is noticed
that, the glasses with different manufacturing years (2008 &2010) are used.
5. Water is found squeezed through the gap between the front bumper and the
headlight enclosures. Also the mark of mud is found on the left corners of the
front bumper.
As per Ext.C2
- When the car is exposed to splashing water, it is found that water is leaking through the gap between the front right window glass and door frame and also at rear left quarter glass.
- It is difficult to pen the fuel tank lid, with the use of lever inside the vehicle. The proper alignment of the lid is not found. It is also observed that the lid is in damaged condition due to mishandling.
- Water is found squeezed through the gap between the front bumper and the head light assembly. Also mud stain is found on these gaps.
- From the data available on the window glasses, it is noticed that, the glasses with different manufacturing years (2008& 2010) are used.
5. It is highly pertinent to note that eventhough the second report of the commissioner was marked and the same document was produced by the opposite party from their side also marked as ExtsB2. Opposite parties are completely relying upon Ext.B2 that in para No.3 of the said report recorded that the lid is in damaged condition was due to mishandling which is coupled with the statement of PW1 in cross-examination that the car was driven by his own brother and PW1 does not possess any driving license. The most important defense case of the opposite party was that the power windows of the subject matter in this case was not provided by them and it is only an alteration and modification done at this discretion of PW1 at his pleasure and choice after the sale which ultimately caused mechanical defects and damage to the car and for the same the opposite parties are not at all liable to compensate. They further contended that the alteration and modification of the fitting in the car coupled with mishandling and reckless driving by inexperienced hand and unauthorized person would amount to violation of warranty condition. In this juncture it is highly necessary to evaluate the evidence before the forum carefully. Even if the contention of the opposite parties are accepted by the forum completely then also the opposite parties are bound to answer the leakage of water through the rear left quarter glass of the car. The rear left quarter glass is not a detachable one but it is permanently fixed on the side of the doors. It will not move out even if the power windows are provided for the car irrespective of at the time of manufacturing or as a subsequent alteration or modification. The opposite parties are herein cannot escape from the responsibility to answer this particular aspect and also the observation made by the commissioner in Ext.C1 report that when the car is exposed to rain water, water is found deposited inside the car when the doors are in closed position, and it is difficult to open the fuel tank lid, with the use of lever inside the vehicle, the proper alignment of the lid is not found. It is also noted by the commissioner that the bumper side above the front left side head light water is going inside in between the gape of the bumper and headlight and mark of mud was seen on the car. All these defects are nothing but the clear proof of manufacturing defects of the car. Another important document before the Forum is Ext.A5 which is the first information sheet which disclose the presence of four power windows but this document doesnot bear any seal, date and signature was marked subject to proof alleging deficiency in service from the side of opposite parties. Moreover, on several occasions the car was taken to the opposite party No.1 service station for repair work and service. Even then they never suggested any permanent solution for the complainant’s grievance. Opposite party never instructed properly how to correct the defects found in the car. The alignment of lid on the fuel tank was due to mishandling as suggested by the commissioner. But it is to be noted that in usual cases fuel tank will be opened only by the staff of the petrol bunk while trying the open the petrol tank lid. The subject matter in this case is worth more than Rs.4,00,000/- and the proper usage of the car due to its defects resulted much mental agony and pain to the complainant herein. The complainant could not use his new car even for a single day with peace of mind. Therefore the opposite parties are liable to compensate the complainant for the mental agony and hardship and other inconvenience and discomforts caused him. Considering the facts and circumstances of the case, the Forum is not in a position to allow the prayer of the complainant to take back the car delivered by opposite party and to deliver a 2011 model brand new car, but he is entitled for the damages sustained by him.
In the result, the complaint is allowed directing the opposite parties jointly and severally to pay an amount of Rs.50,000/- for the damages sustained to him on account of the defect of the car, the opposite parties are further directed to pay an amount of Rs.10,000/- as compensation for mental agony and sufferings with cost of Rs.6000/- Time for compliance is 30 days from the date of receipt of copy of order.
MEMBER MEMBER PRESIDENT
Exts.
A1. to A4 Tax invoice.
A5. First Information sheet
B1.5-3-2011 Tax Invoice
B2.16-11-2012 Commission report
B3.Photocopy of Borchure
C1. 15-6-2012 Commission report
C2. 16-11-2012 Commission report
PW1.Moiden Muneer.C.K.
MEMBER MEMBER PRESIDENT
Pj/
