DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB           : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday  the 29^th   day of  February 2024

CC.08/2019

Complainant

Muhammed Safeer.K,

s/oAhammed Kutty,

Chennamangalure, Mukkam,

Kozhikode – 673 602.

(By Adv.Sri. Arjun Sreedhar)

Opposite Parties

1.               Maruti Suzuki India Ltd,                                                                                                                                                                                                                                                                                                                                                                                                2^nd Floor, Tutus Tower,

NH – 47, Bypass road,

Padivattom, Cochin -682 024.

2.                Maruti Suzuki India Ltd,

Nelson Mandela road,

Vasant Kunj,

New Delhi- 110070.

3.                 Indus Motors Company Pvt Ltd,                                                                                                                                                                                                                                                                                                                                                                                    Chakkorathkulam,

West hill,

Calicut – 673005.

4.                 Indus Motors Company Pvt Ltd,

Near steel complex,

NH-17, Nallalam,

Kolathara, Calicut – 673 655.

             (OP 1&2 By Advs. Sri. Anto Thomas and Sri. Vimal Sankar, OP 3&4 By Adv.Sri. K. Madhumohan)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The second opposite party is the manufacturer of Maruti Suzuki Vehicles and the first opposite party is their Regional Office and opposite parties 3 and 4 are their authorised agent and service provider respectively. The complainant purchased a Maruti Suzuki Omni vehicle from the first and second opposite parties through their authorised agent, the 4^th opposite party. The price was Rs. 3,09,000/-. The purchase was made believing the representation made by the staff that the said vehicle was in best running condition. The vehicle was delivered to the complainant on 8/09/2017.

3.  All the periodical services were done to the vehicle. But it began to show certain engine problems within a few months of purchase and this was informed to the service manager without any delay. But the complainant was made to believe that all the proper service had been done to the vehicle and that the entire defects were rectified in the service. But later the complainant realised that the pulling capacity of the vehicle was losing  day by day.  The service provider did not provide any proper service to rectify the defect. On 21/08/2018 during his journey to Wayanad, the vehicle lost pulling capacity and it was taken to Kakkavayal Service Centre with the aid of mobile service. He was told by the service provider that it was only a simple complaint to the plug and was rectified by them. The complainant realised the actual issue only on the next day when the vehicle became in a  unrunning condition. Total loss of engine oil was found on the next day morning. The vehicle is fully damaged.
4. The complainant demanded replacement of the vehicle with a new one through the authorised agent.  But his request was not considered by the first and second opposite parties. On 24/09/2018 a lawyer notice was issued to the opposite parties, but the third opposite party alone sent a reply and that too with false contentions. The vehicle is having severe manufacturing defects and not in a performing condition. The vehicle was sold to the complainant by making false representation. Selling a defective vehicle by making false and misleading representation  is an unfair trade practice done by the opposite parties. There were severe lapses on the part of the opposite parties in providing proper service.  The complainant was put to unwanted mental agony and monetary loss on account of the deficient service and unfair trade practice of the opposite parties, for which, all the opposite parties are liable to compensate the complainant. Hence the complaint to direct the opposite parties to refund the purchase price of Rs. 3,09,000/- along with compensation of Rs. 2,00,000/- for the mental agony and hardship suffered and also Rs. 20,000/- for the cost of the proceedings.
5.  The opposite parties have resisted the complaint by filing written version wherein they have denied all the allegations and claims made against them in the complaint.
6. In the joint written statement filed by the first and second opposite parties, it is contented that after obtaining the free maintenance services, the complainant was negligent and careless in carrying out the paid scheduled maintenance services of the vehicle as per the owner’s manual and it is violation of the warranty conditions. The vehicle has been plied extensively for more than 35,000 kms within less than a year of purchase. This itself would indicate that the vehicle is free from any inherent defect and the complainant is making false allegations. No such manufacturing defect was ever reported by the complainant.
7. On 29/08/2018 the complainant reported the issue in his vehicle that it was flood affected and not getting started, at the workshop of the third and fourth opposite parties. Since the same was not a manufacturing defect, the repairs were not covered under the warranty. Thus the complainant requested for carrying out necessary repairs under insurance and submitted insurance claim with the insurer. The present complaint is the result of an afterthought with an ulterior motive to make undue gain. There was no deficiency of service or unfair trade practice on the part of the opposite parties. There is no cause of action for the complaint and none of the reliefs is allowable. With the above contentions, the first and second opposite parties pray  for dismissal of the complaint with costs.
8. The contentions of the third and fourth opposite parties in their joint written version filed by them, in a nutshell, are as follows;    The complainant is not a consumer as defined under the Consumer Protection Act, 1986 as the vehicle was purchased and used by him for his business purpose. The complainant has suppressed material facts. The purchase of the vehicle is admitted. The complainant made the choice as per his free will and there was no recommendation or compulsion. It is true that services as prescribed by the manufacturer were done at the appropriate time. The allegation that the vehicle showed engine problem with in a few months is absolutely incorrect and hence denied. No such problem was ever reported to the opposite parties at the time of routine services. It is untrue that the pulling capacity of the vehicle was decreasing day by day and no proper service was given to rectify the same. There was no such complaint at any point of time.
9. What had actually transpired was that on 21/08/2018 the complainant informed that the vehicle suffered a breakdown at Wayanad and the team attended the vehicle and cleared the spark plug then and there and suggested to bring the vehicle to the work shop for a detailed check-up. But the complainant preferred to return to his house. On the next day, since he informed of another break down, the vehicle was taken to the third opposite party work shop and on inspection in the presence of the complainant, it was noticed that the vehicle was actually damaged in flood. They opened a job card under flood category B, which is the normal procedure under the circumstances. As per the preliminary report of water logging cases it is observed that the said vehicle was kept for almost 3 days in flood water in sinking condition.  This was admitted by the complainant and he has countersigned the said report. Therefore the vehicle was categorised under class B of flood affected vehicle and after survey, the insurance company required documents to complete the claim procedure. The opposite party informed the same to the complainant and awaited for his approval for commencing the repair. But there was no response from the complainant. Two letters were issued to him on 19/09/2018 and 4/10/2018 reminding him that unless the required papers were submitted and work approval given, they could not commence the repair work. But no reply was sent by the complainant. But in the meanwhile on 28/9/2018 he issued a lawyer notice supressing the real facts and claiming replacement of the vehicle alleging manufacturing defect. A proper reply was given to the lawyer notice.
10. The service adviser of the third opposite party went to the house of the complainant and personally informed  him about the consequences of the non-submission of the required papers, but the complainant informed that he would contact his lawyer and get back to them. But he did not contact as stated. On the other hand, he has preferred this complaint.
11. There is no manufacturing defect in the said vehicle and the damages suffered are only due to flood water. At any rate, the opposite parties are not liable for replacement of the vehicle or the refund of the value. The vehicle is lying idle in the work shop of the third opposite party and the same cannot be kept there indefinitely due to paucity of space. Moreover, the vehicle will further deteriorate by passage of time and the insurer may repudiate the claim for non-submission of the documents, for which,  the opposite parties will no way be liable or responsible. There was no deficiency of service or unfair trade practice on the part of the opposite parties. The complaint is devoid of merits and  liable to be dismissed with compensatory costs.
12. The points that arise for determination in this complaint are;

      1) Whether the complaint is  maintainable?

      2) Whether there was any unfair trade practice or deficiency of service on  the part of the opposite parties, as alleged?

             3) Reliefs and costs.

13.   The evidence consists of the oral evidence of PWs 1 and 2 and Exts   A1 to A4 on the side of the complainant. RW1 was examined and Exts B1 to B6 were marked on the side of the opposite parties. The report of the expert was marked as Ext C1.
14. Heard both sides.
15. Point No 1:  The learned counsel for the opposite parties has argued that the complaint is not maintainable since the complainant purchased the said vehicle for the purpose of his business and was using the same for the said purpose.   On the other hand, the learned counsel for the complainant has argued that a person whether or not a consumer or other activities meant for commercial purpose will always depend upon the facts and circumstances of each case and there is no straight jacket formula.   It was submitted that the key issue to be considered in this complaint is whether the vehicle sold to the complainant was a defective one and whether there was deficiency of service.  It was submitted that there is no nexus between the vehicle and the business run by the complainant.
16. As per section 2(1)(d) of the Consumer Protection Act, 1986, a person who buys any goods or avails of any services for consideration is a consumer. Admittedly, the complainant has purchased the vehicle for consideration. But the word consumer does not include a person who obtains such goods for resale or for any commercial purpose, or who, in the case of service, avails of such services for any commercial purpose. The explanation to section 2 (1)(d)  of the  Act says that ‘commercial purpose’ does not include use by buyer of such goods or person availing such service exclusively for the purpose of earning his livelihood by means of self-employment.  
17. In the case in hand, the complainant is alleging unfair trade practice and deficiency of service on the part of the opposite parties  for the reason that a defective vehicle was sold to him and there was neglect on the part of the opposite parties to rectify the defect and address his concerns over the vehicle.   It may be noted that there is no averment in the complaint that the vehicle is purchased for commercial purpose. It is true that in Ext A1 lawyer notice, the complainant had stated that after getting delivery of the vehicle he started using the same for his business purpose. It is also stated that he is the manufacturer cum distributor of MCR Ortho Foot wears.  
18. The point to be considered is whether the purchase of the vehicle has a close and direct nexus with the profit generating activity and whether the dominant intention or dominant purpose for the purchase of the vehicle was to facilitate some kind of profit generation. Admittedly, the vehicle is registered in the personal name of the complainant. The firm of the complainant is not the registered owner of the vehicle. The vehicle purchased was not directly intended to generate profit.       
19. The question whether a person is a consumer or not and whether the buying of the goods or the availing of the service was for commercial purpose or not will depend upon facts and circumstances of each case and no straight jacket formula to determine as to whether the person/ company is engaged in commercial activities and the same has to be determined on the facts and circumstances of each case. The above position is supported by the decision of the Honourable National Consumer Disputes Redressal Commission in City View Enterprises Vs Huda and Ors reported in II(2023) CPJ 648  (NC).
20. In National Insurance Co. Ltd Vs Harsolia Motors and Ors reported in II(2023)CPJ 33 (SC)  it has been held by the Honourable Apex Court that           “Complaint filed by the respondent insured has no close or direct nexus  with profit generating activity and claim of insurance is to indemnify loss which respondent insured has had suffered - Commission has rightly held that respondent is “consumer” under section 2(1)(d) of the Act, 1986”. 
21. Sec 2(f) of the Consumer Protection Act, 1986  says that ‘defect’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods. The definition of ‘deficiency’ in section 2 (g) of the Consumer Protection Act, 1986 states that any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to a service would constitute deficiency of service. The allegation of sale of defective vehicle and the failure to rectify the defect, if proved, would constitute unfair trade practice and deficiency of service. The alleged sale of a defective vehicle and neglect to repair the defect is the key issue for consideration in this complaint and it is independent of the Ortho Footwear business run by the complainant.  So according to us, considering the facts and circumstances of the case in hand, the complainant herein is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. The cause of action has arisen within the local limits of the jurisdiction of this Commission and this Commission has ample jurisdiction to entertain the complaint. The complaint is perfectly maintainable.  The point is answered in favour of the complainant.
22. Point No.2 : The complainant has approached this Commission alleging unfair trade practice and deficiency of service on the part of the opposite parties in the matter  of sale and after sales service of the Maruti Suzuki Omni vehicle purchased by him. The prayer is for reimbursement of the entire amount paid for the purchase of the vehicle plus compensation of Rs. 2,00,000/- for the mental agony, hardship and inconvenience suffered by him.
23. PW1, who is none other than the complainant, has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim and asserted that a defective vehicle was sold to him by the opposite parties and they failed to rectify the defects. Ext A1 is the copy of the lawyer notice dated 28/09/2018, Ext A1(a) are the postal receipts, Ext A1(b) are the postal acknowledgment cards, Ext A2 is the reply notice dated 20/10/2018, Ext A3 is the tax invoice cum certificate of extended warranty registration and Ext A4 are the bills.
24. The expert commissioner, who inspected the vehicle and prepared Ext C1 report, was examined as PW2. PW2 has ruled out any hydrostatic lock due to water seeping in through intake manifold and has maintained that mechanical failure has caused damage for the engine and its components.
25. The Territory Service Manager of the first opposite party was examined as RW1 and he has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. Ext B1 is the copy of the warranty policy enumerated in the Owner’s Manual, Ext B2 are the copies of the job cards and pre-invoices, Ext B3 is the copy of accident repair job slip sheet dated 29/8/2018, Ext B4 are the copies of the preliminary inspection report of water logging case and motor insurance claim form, Ext B5 is the relevant page of Owner’s Manual and Service Booklet relating to ‘WARNING’ and Ext B6 is the copy of the relevant clauses of the dealership agreement.
26. The learned counsel for the complainant has argued that the vehicle suffers from inherent manufacturing defects and so the opposite parties are liable to refund the purchase price. It was submitted that all periodical services were done without any default. But the engine began to show problems and the pulling capacity was losing day by day and finally the vehicle collapsed within one year of   purchase. It was argued that Ext C1 would endorse and lend support to the case of the complainant that the vehicle is having inherent manufacturing defect and it further rules out the case of hydrostatic lock tried to be set up by the opposite parties.
27.  Per contra, the learned counsel for the opposite parties vehemently argued that it is a flood affected vehicle and the damage to the vehicle was the result of hydrostatic lock. It was submitted that being a case of hydrostatic lock, it is not covered under warranty and the prayer for refund of the value is not allowable. It was pointed out that as it was not covered under warranty, the complainant had initially opted to avail insurance benefit for the repairs, but subsequently he did not pursue the matter and abandoned the claim for reasons best known to him and then approached this Commission with the present complaint supressing material facts.
28. At this juncture, the testimony of PW2 and Ext C1 report assume importance. PW2 is none other than the Professor in the Department of Mechanical Engineering, Government Engineering College, Kozhikode. He inspected the vehicle on 15/10/2019 in the presence of both the parties. The vehicle was not in a running condition and could not be started. The vehicle was shifted to and then lifted at the maintenance station and inspected the engine. The bottom crank case cover was also removed  to  inspect the big end side of the connecting rod. On such inspection, PW2 could find that the engine block was ruptured at the  bottom of the middle cylinder and important components of the middle cylinder  viz connecting rod, piston, piston rings, piston pins were found heavily damaged and broken. PW2 has opined in Ext C1 that mechanical failure has caused the damage for the engine and its components. PW2 has ruled out the allegation that it was a flood affected vehicle. According to PW2, had it been a flood affected vehicle, it would not have been almost impossible to start the vehicle since the water generally spoils the electronics and electrical components and circuitry and moreover the middle cylinder and its components alone have been found damaged. According to PW2, water seeping into the second (middle) cylinder alone and creating hydrostatic lock cannot happen.  PW2 is of the firm opinion that a mechanical failure has caused the damage to the engine and its components.
29. There is absolutely no reason to disbelieve PW2 or to discard Ext C1. The opposite parties 1 and 2 have filed objection to Ext C1. The main objections are that the inspection was after one year; that the inspection was not done properly; that no scientific test was done in the vehicle and that the expert lacks expertise regarding hydrostatic lock etc. It is true that the inspection was after one year. But that alone is not a sufficient reason to discard Ext C1. Ext C1 was prepared by the professor in the Department of Engineering, Government Engineering College. His competency and expertise in the matter cannot be disputed.   Even though PW2 was cross examined at length, nothing has been brought out to discredit his version. The objections could not be substantiated by the opposite parties. PW2 has no reason to favour either side. According to us, Ext C1 report can be accepted. Ext C1 report rules out the allegation that the vehicle is flood affected and it confirms that mechanical failure has caused  heavy damage to the engine and its components.
30. The contention of the opposite parties is that the complainant had signed Ext B4   document wherein it is stated that the vehicle is flood affected. PW1 has admitted his signature in Ext  B4. He has explained that he has only signed the documents in blank and the said documents were not  filled up by him. There is no reason to disbelieve PW1. The fact that the  opposite parties had attempted to claim insurance for the complainant does not by itself mean that it was a flood affected vehicle. Except for Ext  B4, nothing is produced by the opposite parties to prove that the vehicle in question is a flood affected one and the collapse of the vehicle was due to hydrostatic lock.
31. Another contention of the opposite parties is that within a short span of one year, the vehicle had a run of 35,000 kms and it is indicative of the fact that there is no manufacturing defect in the vehicle. It is true that the vehicle has been plied for 35,000 kms within one year. But that alone is not sufficient to hold that the vehicle is not having any inherent defect.
32. The complainant has issued Ext A1 lawyer notice to all the opposite parties. The second and third opposite parties have admitted the receipt of the notice and they have sent Ext A2 reply notice. The stand taken by the first and second opposite parties in their written version is that they have not received the notice. But the said contention appears to be not correct. The complainant has produced Ext A1(a) postal receipts and A1(b) postal acknowledgment cards. Ext A1(b) would prove that the lawyer notice was duly served on the first and second opposite parties on 6/10/2018. It is seen that no reply was sent by them. If the contentions of the first and second opposite parties that the vehicle is a flood affected one and that the damage caused was due to hydrostatic lock and that there is no inherent manufacturing defect in the vehicle are true and correct, nothing prevented them from sending a reply to Ext A1 stating the real facts. But that was not done. This is also a circumstance which goes against the first and second opposite parties.
33. The mechanical failure has resulted in damage to the engine and component of the vehicle of the complainant.  The vehicle was delivered to the complainant on 8/09/2017. The vehicle collapsed on 21/08/2018 within one year of purchase which is well within the warranty period. Ext C1 establishes defect in the vehicle as defined under Section 2(1)(f) of the Consumer Protection Act, 1986 as there is short coming in the standard which is required to be maintained. Ext C1 would prove that the Maruti Suzuki Omni vehicle of the complainant suffers from inherent manufacturing defect. No purchaser of a new vehicle expects this sort of mental agony and inconvenience within one year of the purchase.
34. To sum up, we hold that the evidence in hand establishes and proves   that the vehicle suffers from inherent manufacturing defect. The case of the complainant that the vehicle supplied by the 4^th opposite party and manufactured by the second opposite party is defective stands proved. The opposite parties have indulged in unfair trade practice in selling a defective vehicle to the complainant. The service rendered by the opposite parties is also proved to be deficient. Unfair trade practice and deficiency of service on the part of the opposite parties stands proved. The complainant is entitled to get refund of the price of the vehicle amounting to Rs. 3,09,000/- as prayed for. Undoubtedly, the complainant was put to severe mental agony and hardship, besides monetary loss due to the failure of the vehicle which is now kept idle. Due to the defects noted in Ext C1, he is not in a position to use the vehicle. The complainant has suffered the loss only because of the defect in the vehicle and deficiency of service on the part of the opposite parties and they are bound to compensate the complainant adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 50,000/- would be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings. The opposite parties are jointly and severally liable. Point is answered in favour of the complainant.
35. Point No. 3:- In the light of the finding on the above points, the complaint is disposed of as follows;

                 a)  CC.8/2019 is allowed.

b) The opposite parties are hereby directed to take back the Maruti Suzuki Omni vehicle of the complainant and refund the price of the vehicle amounting to Rs. 3,09,000/- (Rupees three lakh nine thousand only)to the complainant. 

c)  The opposite parties are directed to pay a sum  of Rs. 50,000/-   (Rupees fifty thousand only) as compensation to the complainant.

d) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant.

e) The payment as afore stated shall be made within 30 days of the   receipt of copy of this order, failing which, the amount of Rs. 3,09,000/-  shall carry an interest of 6% per annum from the date of this order till actual payment.

Pronounced in open Commission on this, the 29^th day of February, 2024.

Date of Filing: 15.01.2019

                                      Sd/-                                                               Sd/-                                                               Sd/-

                              PRESIDENT                                                   MEMBER                                                    MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Copy of the lawyer notice dated 28/09/2018.

Ext A1(a) -Postal receipts.

Ext A1(b) - Postal acknowledgment cards.

Ext A2 - Reply notice dated 20/10/2018.

Ext A3 - Tax invoice cum certificate of extended warranty registration.

Ext A4 - Bills.

Exhibits for the Opposite Party

Ext B1 - Copy of the warranty policy enumerated in the Owner’s Manual,

Ext B2 - Copies of the job cards and pre-invoices,

Ext B3 - Copy of accident repair job slip sheet dated 29/8/2018,

Ext B4 - Copies of the preliminary inspection report of water logging case and motor insurance claim form,

Ext B5 - Relevant page of Owner’s Manual and Service Booklet relating to ‘WARNING’.

Ext B6 - Copy of the relevant clauses of the dealership agreement.

Commission Exhibits

Ext C1  - Report filed by Professor in the Department of Mechanical Engineering, Government Engineering College, Kozhikode

Witnesses for the Complainant

PW1 -  Muhammed Shafeer.K (Complainant)

PW2 – Dr. Pradeep. V  (Professor in the Department of Mechanical Engineering)

Witnesses for the opposite parties 

RW1 – Harshal Choksi

                                         Sd/-                                                                   Sd/-                                                         Sd/-

                                PRESIDENT                                                       MEMBER                                               MEMBER

True Copy,      

                                                                                                                                                                  Sd/-

                                                                 Assistant Registrar.