BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 33 / 2006 WEDNESDAY THE 8TH DAY OF JUNE 2011 B. Jagan Prabha, S/o. A. Gnana Dhas, No.163, Thiruvallurvar Street, Belliappa Nagar, Walajapet. … Complainant. -Vs – 1. The Managing Director, M/s. Maruti Udyog Ltd., Palam Gurgoan Road, Gurgoan, Haryana State Pin 122 015. 2. The Managing Director, M/s. Ganesh Cars Pvt. Ltd., Bye-Pass Road, Vellore … Opposite parties. . . . . . This petition coming on for final hearing before us on 1.6.2011, in the presence of K. Solmuthu Azhagan Advocate for the complainant and Thiru. T. Rajasekar, Advocate for the opposite parties and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The 1st opposite party is the manufacturer of various models of Maruti Cars in India and the 2nd opposite party is the authorized dealer of the 1st opposite party for the sales and services of Maruti Cars in Vellore District. The complainant herein purchased a Maruti Zen LXI model car from the 2nd opposite party on 14.9.05 at a cost of Rs.3,61,566.22/-, which includes cost of the vehicle, Sales Tax and handling charges, etc. Apart from that the complainant has also incurred a further sum of Rs.16,765/- towards Insurance and Rs.20,000/- towards extra fittings like Stereo, Speakers, remote control equipment, seat covers, Sun control film, etc. The said car was purchased by the complainant by availing financial assistance to the extent of Rs.2,75,000/- from ICICI Bank, Vellore. The complainant took delivery of the car bearing Engine No. GIOBBN 345672 and Chassis No.MA3EYD32500 842676 on 14.9.05. But the 2nd opposite party deliberately delayed the registration of the vehicle till 30.9.05 inspite of repeated requests of the complainant, for reasons best known to him. On 15.11.05 the complainant was rudely shocked to receive a vague letter from the 2nd opposite party stating that the car sold to the complainant is fitted with a defective engine and requested the complainant to bring the car for inspection and also for replacement of any component under warranty. On further enquiry, the 2nd opposite party told that a batch of Zen Model Cars manufactured by the 1st opposite party during a particular period are having defective engines and the car sold to the complainant is also one such car with defective engine giving rise to coolant leakage problems in the cylinder block and therefore the same would be replaced at free of cost by a new engine. The said letter dt. 14.11.05 sent by the 2nd opposite party is filed herewith for the perusal of this Forum as Documents No.2. The 1st opposite party gave Public notice in all leading news papers even as early as March 2005 that a batch of Zen Model Cars manufacture by them during a particular period are found to be fitted with defective engines and therefore requested all their customers to get their engines replaced at free of cost. But several months later to the above said Public Notice and also knowing fully well that the car supplied to the complainant is also one such car fitted with defective engine, the 2nd opposite party fraudulently and suppressing the fact, delivered the car to the complainant. After the registration of the car in the name of the complainant, the 2nd opposite party sent the letter dt. 14.11.05 stating that it is car with defective engine. The above said act of the 2nd opposite party is highly fraudulent and they ought not to have sold such a knowingly defective car to a customer. When the Sale Executive of the 2nd opposite party Mr. Senthil Kumar came on 19.11.05 and took the car to their factory for inspection and replacement of engine, the car met with an accident because of the negligent driving of the said Senthil Kumar. The car sustained heavy damage. 2. The complainant purchased the car by paying his hard-earned money and also by availing financial help from ICICI Bank. Even if the car is replaced with a new engine and the damages caused in the accident are repaired, the car will not be road-worthy. Under the above said circumstances, the complainant caused issue of a legal notice dt. 23.11.05 to the opposite parties calling upon them to supply a new car or to repay the cost of the car. The 2nd opposite party received the said notice on 24.11.05 and the 1st opposite party received the said notice on 28.11.05 but they did not respond till 12.12.05. Hence, the complainant issued another notice dt. 12.12.05 calling upon the opposite parties to repair the car and handover it to him without prejudice to his right to take legal action for damages. The said notice was also received by the 2nd opposite party on 15.12.05 and accordingly a job order card was also issued on 24.11.05. On 16.12.05 the 2nd opposite party issued a reply notice through his counsel clearly admitting the fact the engine fitted in the car supplied to the complainant is a defective one and also the accident caused by his employee. But the reply notice was silent about the request of the complainant to replace a new car by taking back the defective car. Even though the complainant’s notice dt. 12.12.05 calling upon the opposite parties to repair and hand over the vehicle without prejudice to his right to take action for damages, was received by the 2nd opposite party on 15.12.05 itself there was no information from them till 5.1.06. On 5.1.06 when the complainant went to the office of the 2nd opposite party to take delivery of the car after repair and replacement of the engine, to his shock and dismay, the 2nd opposite party refused to deliver the car and called upon the complainant to execute a letter of undertaking the car has been repaired to his fullest satisfaction. They also sent a letter dt. 5.1.06 through their advocate to the complainant stating that he should come with an automobile engineer to inspect the car and after expression of his satisfaction he could take delivery of the car. Hence, the complainant sent a reply letter dt.9.1.06 clearly stating that the purchaser of a good is not supposed to give any warrant and on the other hand the 1st and 2nd opposite party alone should give warranty and guarantee for the repaired card and further called upon them to deliver the car within 24 hours failing which he would take criminal action for illegally detaining his card. Thereafter the 2nd opposite party handed over the car to the complainant on 13.1.06. That for all the above said happenings, the 1st opposite party, even though he is manufacturing and marketing the Maruti Cars did not respond and never cared even least for the plight of the customer. 3. The 1st opposite party ought to have supplied a new car to the complainant once it was brought to their notice that a defective car had been supplied to a customer. But the rock-like silence and the callous and indifferent attitude on the part of the 1st opposite party is a clear case of deficiency in service. That the damage caused to the car and the dual engine numbers, one in the engine and another in the R.C. book, the value of the car has been considerably reduced and the complainant will also find it very difficult to re-sell the car in future because of the dual engine number. The car was in the garage of the 2nd opposite party for nearly two months and during this month the complainant and his family members had to use vehicles for hire. Therefore the opposite parties have committed deficiency in service and they are liable to pay a sum of Rs.2,00,000/- by way of damages for the loss suffered by him and also for the mental agony which he underwent due to the deficiency in service of the opposite parties. Therefore it is prayed this Forum for directing the opposite parties to pay jointly and severally a sum of Rs.2,00,000/- by way of damages to the complainant and to pay the cost of this proceedings. 4. The averments in the counter filed by the 1st opposite party and adopted by the 2nd opposite party are as follows: The complaint is not maintainable against the opposite parties within the provision of the Act as there is no negligence and deficiency in service and unfair trade practice on the part of the opposite parties. The opposite party duly discharged their obligations under warranty as per the terms and conditions. The Hon’ble National Commission h as given several ruling on the warranty obligations of the manufacturer holding that the manufacturer is not liable, if the manufacturer carried out the warranty repairs. The Hon’ble Supreme Court in the matter of Maruti Udyog Limited vs. Sushil Kumar Gabgotra also held that the opposite party has specific warranty and replacement of vehicle neither permissible nor justifiable. The complainant has not disclosed in what manner his allegation is covered by the term complaint as referred to in Sec. 2 (1) (c ) of the C.P. Act 1986. There is no allegation covering one or more of the aspects covered by Sec. 2 (1) (c ) of the said Act. The relief that can be granted by the Redressal Forums constituted under the Act are only those enumerated in Clause (a) to (i) of Sec.14 (1) of the Act. The complainant has failed to place any material on record to the effect that he had suffered any loss or damages due to any act of omission or commission or negligence or in part of his opposite party. The complaint fall outside the ambit of clauses (a) to (i) in Sect. 14 (1) of the said Act. This proposition was laid down by the Hon’ble National Commission in F.A.No.67 of 1990 in the case of M.N. Narasimha Reddy ..vs.. MD MUL and Ors. Vide their order dt. 20.12.90 reported in 11 (1991) CPJ 346. 5. The contents of para-1 need not reply. The contents of para-2 are matter of records. The contents of para-3 are denied for want of knowledge. The contents of paras 4,5, and 6 as stated are not correct hence denied. It is emphatically denied that the engine fitted in the vehicle is defective. Suspected coolant leakage in future in few Maruti Zen Manufactured during a particular period and accordingly decided to replace the engine assembly of those vehicles which were identified in order to curtail any hardship to their customers. The complainant was also advised to bring the vehicle for replacement of the engine assembly free of charge under the warranty. Released a service circular bearing issue No.D-41/2005 dt. 11.7.05 for the information of their dealers. It is denied that the opposite party No.2 delivered the car in question to the complainant fraudulently by suppressing the facts as alleged. Rest of the contents of this para relate to opposite party No.2 and it is for them to reply. The contents of para-7 are misconceived wrong and hence denied. It is emphatically denied that the vehicle in question will not be a roadworthy vehicle offer the replacement of engine and the complainant is entitled to replacement of vehicle. The complainant neither suffered or harassment before vehicle was summoned for replacement of engine. The answering opposite party’s obligations under warranty are specific as mentioned in clause 3 of the warranty booklet which are repair or replacement of any component during the warranty period. The opposite party is not liable to replace the vehicle in question under warranty as per the terms and conditions of warranty. It is pertinent to mention that the complainant has not suffered any loss due to suspect problem of coolant leakage, as the same was never occurred in the vehicle in question. The complainant has no reason or occasion to issue any notice to the opposite parties. 6. The contents of paras 8, 9 are misconceived incorrect hence denied. The opposite party being the manufacturer stands warranty and never refused to provide warranty benefits to the complainant. The complainant has failed to set out any case for deficient warranty service. For the satisfaction of the complainant, the opposite party No.2, advised him to inspect and take the delver of vehicle. It is denied that the complainant was denied delivery after the replacement of engine without having signed a satisfaction note. The warranty to the vehicle is available to the complainant for a period as mentioned in the owner’s manual and service booklet. The contents of para-10 are absolutely false incorrect and as such are denied. The answering opposite party is the best after sale service provider as declared by JD power in their annual survey conducted time to time for the last 7 years in a row. The complainant has no basis to make such type of allegation against the opposite party. It is further denied that the vehicle in question was delivered to the complainant knowingly with a defective engine, which the opposite party knew in March 2005. The opposite party decided to replace the engine of few Maruti Zen as soon as its suspected coolant leakage in future in the said vehicle. The complainant made the allegation without any material on record. The contents of para -11 are misconceived, wrong hence denied. “The complainant has no right to raise any claim, which is beyond the purview of the warranty. The complainant has no case for deficiency in service or unfair trade practice against the answering opposite party. The complainant is not entitled to any relief as prayed for. The complaint is devoid of merit and is liable to be dismissed with costs. 7. Now the points for consideration are: (a) Whether there is any deficiency in service, on the part of the opposite parties? (b) Whether the complainant is entitled to the reliefs asked for?. 8. Ex.A1 to Ex.A13 were marked on the side of the complainant and Ex.B1 to Ex.B3 were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 9. POINT NO. (a): It is admitted case of the parties that the 1st opposite party is the manufacturer of various models of Maruti Cars in India and the 2nd opposite party is the authorized dealer of the 1st opposite party for the sales and services of Maruti Cars in Vellore District. The complainant purchased a Maruti Zen LXI model car from the 2nd opposite party on 14.9.05 at a cost of Rs.3,61.566.22. The complainant took delivery of the car bearing Engine No.GIOBBN 345672 and Chassis No.MA3EYD32500842676 on 14.9.05. Based on the letter Ex.A2 dt.14.11.05, sent by the 2nd opposite party to the complainant, the Sales Executive of the 2nd opposite party Mr. Senthi Kumar came to the complainant on 19.11.05 and took the car to their service station for inspection and replacement of engine. After the service and replacement of the engine, the 2nd opposite party handed over the said car to the complainant on 13.1.06. 10. The complainant contended that after took delivery of the above said car on 14.9.05 the complainant had received a letter Ex.A2, dt. 14.11.05 from the 2nd opposite party stating that the car sold to the complainant is fitted with a defective engine and requested the complainant to bring the car for inspection, and also for replacement of any component under warranty. Based on the letter the above said car handed over to the 2nd opposite party on 21.11.05 for replacement of defective engine. The 1st opposite party gave public notice in all leading news papers even as early as March 2005 that a batch of Zen Model Cars manufacture by them during a particular period are found to be fitted with defective engines and therefore requested all their customers to get their engines replaced at free of cost. The 1st opposite party knowing fully well that the car supplied to the complainant is also one such car fitted with defective engine, the 2nd opposite party fraudulently and suppressing the fact, delivered the car to the complainant. The 2nd opposite party issued a reply letter Ex.A11, dt. 14.12.05 through his counsel clearly admitting the fact that engine fitted in the car supplied to the complainant is a defective one. The car was in the garage of the 2nd opposite party for nearly two months and during this month the complainant and his family members had to use vehicles for hire. Therefore the opposite parties have committed deficiency in service. 11. The opposite parties contented that the engine fitted in the car supplied to the complainant is not a defective one but a few vehicles of the model Zen, manufactured in a particular period are suspected to have the problem of coolant leakage in future, and decided to replace the engine assembly of the said Zen cars which were identified in order to curtail any hardship to customers vide its Service Circular Ex.B1 dt. 11.7.05. Accordingly the complainant was advised to bring the vehicle for replacement of engine assembly free of charge under warranty as per clause-3 of warranty policy. The warranty obligations of the opposite party No.1 is to repair or replace within warranty period any part shown to be defective when Maruti acknowledges that such to defect is attributable to faulty material or workmanship at the time of manufacture as per clause-3 of the warranty policy contained in the Owner’s and Service Booklet. Therefore the opposite parties have not committed any deficiency in service. 12. Based on the Service circular Ex.B1 dt.11.7.05 issued by the 1st opposite party, the 2nd opposite party had sent a letter Ex.A2, dt. 14.11.05 to the complainant. From the perusal of Service Circular Ex.B1 it is mentioned that a few vehicles of the model Zen dispatched to your dealership are suspected to have the problem of coolant leakage in future. The list of affected vehicles is given in the attached file (Vehicle xis). As an abundant precautionary measure, it has been decided to replace the engine assembly in the vehicles in stock. The replacement procedure of engine assembly is given in the attached file (Procedure pdf) It is requested to replace the full engines assembly in all the affected vehicles in stock as per the service manual zen (Refer page 6A – 11& 6A–48) Engine assembly are being dispatched to you through MUL spares division. Please ensure that the replaced engine is sent to MUL warranty immediately & properly packed in the same packing in which the engine assembly is sent to your from MUL A report on the status of replacement should be sent on following email Ids on daily basis as per the format enclosed. “ The 2nd opposite party has stated in his letter Ex.A2, dt. 14.11.05. that Maruti Udyog Limited stands warranty for the above vehicles and ensures the best after sales service through its dealership network across the country. The coolant leakage problem from the cylinder block has been noticed in few Maruti Zen cars, which were manufactured around that time when the above vehicle was manufactured. In order to minimize the inconvenience to their esteemed customers and as a matter of proactive measure, they advice him to get his vehicle inspected at their workshop. Therefore they request him to bring his vehicle at their workshop for inspection at the earliest to enable them to do the needful including replacement of any component under warranty free of charge. 13. After received the letter Ex.A2, dt. 14.11.05, the complainant issued a legal notice Ex.A4, dt.23.11.05 to the opposite parties stating that the vehicle sold to the complainant is fitted with a defective engine and the opposite parties have sold the same to the complainant suppressing the facts. Therefore the opposite parties are called upon either to supply a new car or repay the cost of the car and other expenses incurred by the complainant and also called upon to pay a sum of Rs.2,00,000/- towards damages for the mental agony caused to the complainant. From the perusal of Job slip along with job order Ex.A10, dt. 21.11.05 issued by the 2nd opposite party to the complainant, it is seen that before issued the notice Ex.A4, dt.23.11.05, based on the letter Ex.A2, dt. 14.11.05. the above said car was handed over to the 2nd opposite party for replacing of engine assembly free of charge under warranty as per clause-3 of the warranty policy. The 2nd opposite party has sent a reply notice Ex.A11 dt. 14.12.05 stating that the 2nd opposite party had received a communications from M/s Maruti Udyog Limited, Palam Gurgaon road, Gurgon: 122015, Haryana State, which contains of a list of vehicles, on which the engine conditions are not satisfactory on the road. Immediately, on verification the 2nd opposite party voluntarily came forward to save customer risk and informed the complainant to check his vehicle, if it is necessary to replace the engine by a new brand engine to extent the service of the vehicle and also requesting the complainant to bring his vehicle at 2nd opposite party’s workshop. Accordingly, Mr. Senthilkumar, Sales Executive brought the complainant’s car at 2nd opposite party’s workshop. Further stated that its act is only friendly and promote the service to their customers. It’s act is not fraudulent or suppressing any fact. No harassment or ill-treatment will report as customers at cost. So their activities will not cause any mental agony or damages to the complainant. After replacement of engine assembly free of charge the 2nd opposite party issued another reply notice Ex.A13, dt. 5.1.06 stating that advice the complainant to take delivery in doing so let him come with an Auto-mobile Engineer or motor vehicle surveyor as the case may be and inspect the vehicle with conditions and express his satisfaction and get possession of the vehicle. Further the complainant came on 5.1.06 with half-minded with inability to test the genuineness of the originality. So, it is a choice to come with an Engineer for his satisfaction and the opposite parties motive is to satisfy his customer. Thereafter the complainant took delivery of the car on 13.1.06. Therefore it is clear that the complainant has not suffered any loss due to suspect problem of coolant leakage as the same was never occurred in the vehicle in question before the replacement of engine. 14. The learned counsel for the complainant has argued that the 1st opposite party ought to have supplied a new car to the complainant once it was brought to their notice that a defective car had been supplied to a customer and indifferent attitude on the part of the 1st opposite party is clear case of deficiency in service and they are liable to pay a sum of Rs.2,00,000/- damages for loss suffered by him. In this connection the complainant relied upon the following Judgment of Hon’ble Supreme Court AIR 2004 SUPREME COURT 1529. Jose Phillp Mampillil ..Vs.. M/s. Premier Automobiles Ltd and another The learned counsel for the opposite parties argued that there was no manufacturing defect in the vehicle in any manner and the warranty policy is an integral part of sale contract executed by the complainant and the complainant cannot demand anything beyond the said warranty. Under the warranty obligations of the opposite party-1 is to repair or replace within warranty period any part shown to be defective when Maruti acknowledges that such to defect is attributable to faulty material or workmanship at the time of manufacture as per clause-3 of the warranty policy. Accordingly, as the proactive measures replaced the engine of few Maruti Zen cars including the complainant’s car. Therefore the ruling cited by the learned counsel for the complainant is not applicable to the facts and circumstances of this case. 15. Admittedly the complainant has not suffered any loss due the said suspect problem of coolant leakage as the same suspect problem never occurred in the vehicle in question before replacement of engine based on proactive measures taken by the opposite parties. From the perusal of Ex.B2 it is mentioned is as follows. (3) Maruti’s Warranty Obligation: If any defect(s) should be found in a Maruti vehicle within the term stipulated above, Maruti’s only obligation is to repair or replace at its sole discretion any part shown to be defective, with a new part or the equivalent at no sot to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacements which are not covered by this warranty. Therefore it is clear that under the warranty obligation the 1st opposite party issued a Service Circular Ex.B1, to the 2nd opposite party stating that a few vehicles of the model Zen cars are suspected to have the problem of coolant leakage in future. Therefore as an abundant precautionary measure it has been decided to replace the engine assembly in the vehicle in stock. To replacement procedure of engine assembly is given in the attached file. As per the service manual of Zen (Refer page 6A-11 & 6A – 48). Based on the above said letter the 2nd opposite party sent a letter Ex.A2 dt.14.11.05 to the complainant stating that the coolant leakage problem from the cylinder block has been noticed in few Maruti Zen Cars, which were manufactured around that time when the above vehicles was manufactured. In order to minimize the inconvenience to their esteemed customers and as a matter of proactive measure, they advise him to get his vehicle inspected at their workshop. 16. The ruling citing by the learned counsel for the complainant wherein the Hon’ble Supreme Court is held that Defective car sold as brand new car – Purchases brining the defects into notice of dealer – No action taken thereon – Instead of acknowledging defects manufacturer denying liability and contesting matter – Purchaser entitled to get car repaired from reputed garage / mechanic at cost of dealer and manufacturer – In addition to it purchaser awarded Rs.40,000/- for mental agony, torture and Rs.50,000/- as cost of litigation – Liability of dealer and manufacturer would be joint and several. In the present case, under the warranty obligations, the opposite parties have decided to replace the engine of few Maruti Zen car as soon as are suspected to have the problem of coolant leakage in future, and for proactive measures issued the service circular Ex.B1 to the 2nd opposite party. Based on the Service Circular, the 2nd opposite party sent a letter to the complainant to bring the car for inspection and also for replacement of component under warranty. Accordingly, the complainant handed over the car to the 2nd opposite party’s work shop on 21.11.05 for service and replacement of engine assembly free of cost. Then the complainant took delivery of his car on 13.1.06. Therefore it is clear that the opposite parties activities will not cause any mental agony or damages to the complainant. Hence, the ruling cited by the learned counsel for the complainant is not applicable to the facts and circumstances of this case. 17. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the complainant, and from the documents Ex.A1 to A13, & Ex.B1 to Ex.B3, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. Hence we answer this point (a) as against the complainants herein. 18. POINT NO : (b ) In view of our findings on points (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him in this complaint. Hence we answer this point (b) also as against the complainant herein. 19. In the result, this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 8th day of June 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 14.9.05 - Invoice, for Rs.2,51,191/- Ex.A2- 14.11.05 - Letter from the 2nd opposite party to the complainant. Ex.A3- -- - Photos Ex.A4- 23.11.05 - Legal notice. Ex.A5 } -- - Postal Ack. Cards. & Ex.A6} Ex.A7- 12.12.05 - X-copy of legal notice. Ex.A8 } & Ex.A9} -- - Postal Ack. Cards. Ex.A10- -- - X-copy of Job slip. Ex.A11- 14.12.05 - Reply notice. Ex.A12- 9.1.06 - X-copy of legal notice. Ex.A13- 5.1.06 - Reply notice. Opposite parties’ Exhibits: Ex.B1- -- - X-copy of Service Circular. Ex.B2- -- - X-copy of warranty policy. Ex.B3- -- - X-copy of 2006 World’s most reputed companies List. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
