BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 25th day of November 2015
Filed on : 09-10-2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.629/2012
Between
Manu Eldo, : Complainant
S/o. Eldo, Varanattu house, (By Adv. George Varghese,
Kanjiramattom P.O., Kanakkanattu Buildings, Valavi
Kanayannoor Taluk, road, Ernakulam)
Ernakulam-682 315.
And
1.Maruti Suzuki Ltd., : Opposite parties
Rep. by its Managing Director, (O.P1&2 by Adv. V. Santharam
Head Office at Plot No. 1, “Srilakshmi”40/8709 1st floor,
Nelson Mandela Road, Sreenivasa Mallam road,
Vasant Kunj, Ernakulam, Kochi-682 035)
New Delhi -110 070.
2. The Regional Manager,
Maruti Suzuki Ltd., 2nd Floor,
Tutus Tower, N.H. 47 Bypass,
Padivattom, Cochin-682 024.
3. The General Manager (O.P. 3 and 4 by Adv. George
Popular Vehicles and Services Ltd., Cherian Karippaparambil,
Edappaly Main road, H.B. 48, Panampilly Nagar,
Mamangalam, Kochi-36)
Ernakulam-682 025.
4. The Manager,
Popular vehicles and
Services Ltd., N.H. Bypass,
Vysali Junction,
Chakkaraparambu,
Thammanam P.O., Vytila.
O R D E R
Cherian K. Kuriakose, President.
The case of the complainant
The complainant purchased a Maruti swift car from the opposite parties on 12-07-2012 and used the same till 22-08-2012. The complainant felt that the vehicle had no proper pulling in the 2nd and 3rd gear. On 22-08-2012 car suffered breakdown at Kanjiramattom - Ernakulam road and the vehicle failed to start. The matter was informed to the opposite party and they came to the spot at 2 a.m. and the vehicle was towed down to their garage. In spite of lapse of one and half months the vehicle was not returned after repairs and on recording job satisfaction. The complainant reliably understand that the vehicle had manufacturing defect and the engine of the vehicle was defective. The opposite parties are liable to replace the vehicle with a new one or to refund the purchase price which is Rs. 6,55,164/-. Even as on date of filing of this complaint that is on 09-10-2012 the opposite parties had not released the vehicle after completion of the repair works. Hence this complaint.
2. Notices were issued to the opposite parties. Opposite parties 1 and 2 are the manufactures and 3 & 4 are the dealers from where the car was purchased. They appeared and contested the case by filing their respective versions. The manufacturer, opposite parties 1 and 2 took a contention in the version that the complainant is not a consumer of the 1st and 2nd opposite party. The 1st and 2nd opposite parties cannot entertain any claim under the warranty. The vehicle on 22-08-2012 was driven without proper level of oil and coolant which caused the problem to the engine. The vehicle was kept in a negligent and careless manner. The accident repairs are not covered under clause 4 (e) and (h) of the warranty. However as a matter of good gesture and goodwill the vehicle was repaired under warranty on FOC basis to the complainant. The complainant has approached this Forum suppressing material facts with unclean hands. The complainant was demanding matters outside the scope of warranty and the case was filed with malafides. No loss or injury suffered by the complainant . due to negligence of the opposite parties 1 and 2. The complainant is therefore not entitled to get any compensation or any relief from the 1st and 2nd opposite parties.
3. 3rd and 4th opposite parties who are the dealers of the car also filed their version contending inter-alia as follows.
As per the vehicle history the complainant had entrusted the vehicle for the 1st free service on 31-07-2012 when Odometer reading was 1423KMs. At that time the demanded service was only the 1st free service A/C filter fixing and Engine room coating were the only 2 additional works done at that time. The complainant did not have any case of lack of pulling at first service state. Breakdown service was attended promptly at 2 a.m. on 22-08-2008. The complainant had informed the service personnel that he had driven the vehicle for about 6.8 kms. even after glowing of the warning light and the vehicle had stopped on the road on its own. The engine oil level was low at that time. On further inspection it was found that the Thermostat inlet hose was damaged and the engine oil available was only 550ml level as against the required level of 3.1 lts. The complainant was acting against he instructions given to him through the owners manual. The vehicle was serviced to the fullest satisfaction. On September 2012 itself and the same was communicated to the complainant. Contrary allegations made in the complaint are false. Since the complainant had not taken the vehicle from the work yard of the opposite party which is very scarce, the complainant is liable to pay Rs. 250 per day towards bay charges. The complainant has no cause of action against the opposite parties 3 and 4. the complainant has no cause of action against the opposite parties 3 and 4. Therefore the complaint is to be dismissed.
4. On the above pleading the following issues were to be settled for consideration.
i. Whether the complainant has proved that the car in question had suffered any manufacturing defect?
ii. Has the complainant proved that there was any sort of deficiency on the part of the opposite parties 1 to 4 as alleged?
iii. Reliefs and costs
5. The evidence in this case consist of the oral evidence of PW1 and Exbts. A1 to A9 on the side of the complainant and the evidence of PW2 the commissioner who prepared C1 report. On the side of the opposite party DW1 the deputy manager of Opposite parties 3 and 4 and also DW2 were examined and Exbt. B1 to B9 were marked. Heard both sides.
6. There is no dispute to the fact that the complainant is the owner of the car. Exbt. A1, A2 and A3 would go to show that the complainant had purchased the car from the opposite party. The vehicle was insured with M/s. New India Assurance Company as seen from Exbt. A4 during delivery time. The complainant purchased the new vehicle on 27-06-2012 as per Exbt. A2 invoice. The incident which led to the complaint happened on 23-08-2012 that is after 45 days after the purchase of the vehicle. Within 45 days the vehicle was already run 2817 kms. Without any complaint of manufacturing defect. Exbt. A5 is the copy given to the complainant from the service center. In respect of the work order it is seen that the vehicle got broke down on 23-08-2012 during night hours the matter was informed to the opposite party for getting assistance. It is admitted that at 2 a.m. In the night of 23-08-2012 the vehicle was inspected by a person from the service center of the opposite party. It is seen from Exbt. A5 that the vehicle was brought to the workshop by towing and it was noted that on initial observation it was found that there was no coolant in the reservoir tank. It was also noted that the nose the coolant was damaged, the vehicle was found over heated.
- The case of the complainant that the vehicle suffered manufacturing defect was first raised on 15-09-2012 that is within 1 month from the date of the incident, when a demand was made by the complainant to the opposite party through advocate notice. The complaint is seen filed before this Forum on 08-10-2012. The main contention of the complainant was that the vehicle was not returned to the complainant even after a lapse of one and half months after curing the defects and recording job satisfaction. Even after lapse of one and half months after curing the defects and recording job satisfaction. It was also contended in the complaint that the engine of the vehicle was defective and therefore the complainant was entitled to get a replacement of the vehicle by a new one or for refund. The legal notice of the complainant issued in the month of September was replied by the opposite party immediately after its receipt, it was contended that the vehicle did not carry any warranty. Since the complainant did not produce the vehicle for the 1st service as per the stipulations given in the owners manual. However, even though legally no warranty was applicable as goodwill gesture in consultation with the manufacturer of the vehicle, the service of the vehicle was completed and given to the complainant free of cost. It was also noted that the opposite party had repaired the vehicle to the full satisfaction of the complainant and that it was ready for delivery and the same was intimated to the complainant many times. So accordingly the opposite party even though the vehicle was released even prior to the issuance of the Advocate notice, the complainant was not prepared to take back the vehicle on the ground that there was manufacturing defect. It was after the receipt of Exbt. A9 legal notice, this complaint was filed on 09-10-2012 alleging manufacturing defect on the vehicle. It is to be noted that when the complainant has specific case that there was manufacturing defect of the vehicle he ought to have provided sufficient evidence before the Forum by proving the same through the expert commissioner immediately on filing the complaint, that is not seen to have been done by the complainant. The commission was taken out on the application of the complainant which was filed on 17-04-2013. We failed to understand as to why there was such a delay in making the application for commission especially when it is trite that any manufacturing defect will have to be proved by the complainant through expert evidence.
8. The commissioner appointed to inspect the vehicle had inspected the vehicle after completion of the entire repair works. He was examined as PW2. In this case he has categorically stated that he inspected the vehicle after the repairs. At the time of his inspection the vehicle was in working condition. It is seen at page 4 of the cross-examination of PW2 that at the time of inspection that he came to know at the time when the vehicle was brought for repair there was 500 ml engine oil in the sump fuel and the engine was found stuck and question was asked to the witness during cross-examination as to whether he believe that there was any manufacturing defect only because of the reason that engine was stuck. The witness answered positively that the stoppage of the engine was due to manufacturing defect. It is only a trump card for the complainant to file up his case that the vehicle was suffering from manufacturing defect. We have gone through the entire deposition of the commission who was examined as PW2. No where in the report he had stated any reason for his finding that there was manufacturing defect for the vehicle. It was the specific case of the complainant that the complaint was in respect of the engine of the vehicle and the manufacturing defect was on the engine. However commissioner is not seen to have examined any part of the engine to come to such a conclusion. It is the common knowledge that when sufficient engine oil is not pumped into in the engine, the engine will become heated up and consequently the coolant system will be upset if the vehicle was allowed to run for further distance. The complainant has no case that he stopped the vehicle immediately on seeing the warning glow lamp giving a warning about oil shortage. It is the case of the complainant that the vehicle had stopped abruptly that would give us a presumption that the vehicle had stopped due to conjunction caused due to the overheating. The only presumption which could be drawn is that the overheating which was due to the shortage of sufficient oil. Exbt. A5 would clearly show that at the time of opening the sump for draining, there was only 500 ml of engine oil as against the requirement of 3.5 liters. The learned counsel for the complainant argued that the shortage of oil in the sump had to be answered by the opposite party and not by the complainant. Periodical checking of the vehicle was necessary in the case of vehicle without electronic warning lamps. In new generation vehicles for each and every defects alert signals are shown in the dash board. The driver who drive the vehicle is expected to watch the signals and to driving the vehicle accordingly. Had the complainant or the driver who was driven the vehicle at the time of the breakdown watched the warning signal panel, this unfortunate incident would have been avoided. However it is clear that the vehicle was driven about 7 kms after seeing the warning lamp showing the shortage of the oil in the sump. Therefore we find that the vehicle having run for about 2.5 kms without any fault could not have clear up a sudden fault by getting stoppage of the engine abruptly, which could be attributable to the manufacturing defect. Sufficient evidence is available in this case to show that the engine got stuck and the vehicle ceased to run only due to the fact that there was insufficient oil in the engine compartment. Even though the commissioner had stated in page 4 that the manufacturing defect seen by him was presumed due to the stoppage of the engine, can not be accepted on its face value. PW2 is an insurance surveyor who himself had not certified his own qualifications. No where in his report is stated he is an expert in automobile technology, even though after his name he acclaimed himself as an expert commissioner. However the nature of the answers given by PW2 to the questions put in the cross-examination were not rational and satisfying to the judicial conscience. Therefore we have no hesitation to discard Exbt. C1 commission report .
9. Exbt. B1 dated 10-07-2014 is a satisfaction note signed by the complainant and handed over to the opposite party. The complainant had noted down in Exbt. B1 that he took the test drive of the vehicle for about 28.7 kms and the vehicle appeared to be in good condition and that it had performed well. He also added that such satisfaction shall not affect his contention in CC 629/2012 pending before this Forum. The vehicle was delivered to the complainant at 3159 kms. On 10th July 2014. It is true that there is a delay in delivery of the vehicle . The accident happened in 2012 and it was entrusted for repairs . However the vehicle is seen to have been received by the complainant only on 10-07-2014. Exbt. A9 reply notice would go to show that the vehicle was completely repaired and the service was completed and it was ready to be delivered to the complainant free of cost In spite of the fact that there was no legal warranty applicable to the vehicle for want of proper service in time. We failed to understand as to why the complainant even after the receipt of the reply notice as above on 6th October 2012 failed to take delivery of the vehicle which was offered free of cost. No satisfactory answer was forth coming from PW1 the complainant, who was examined in this case, for the delay in taking delivery . The complainant has no case that the opposite party refused to provide delivery to the complainant even while the matter was pending before this Forum for so long . Therefore we find that the complainant has not approached this Forum with clean hands.
10. The question of providing warranty to the vehicle did not arise in the facts of thecase. Since the opposite party had repaired the vehicle and delivered to the complainant free of any charges and the defective parts of the vehicle have already replaced and the complainant had expressed his satisfaction of the full performance of the vehicle as seen from Exbt. B1. We find that the complainant has no subsisting grievance against the opposite parties to make out a cause of action for this consumer complaint. We find that the issue against the complainant. This view is supported by the decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi pronounced by Justice Ashok Bhan, its president in R.P. No. 981/2007 dated 21-03-2011.
11.Issue No. ii. Having found issue No. 1 against the complainant we find that the other issues deserve no answers. We find that the complaint is not allowable and is hereby dismissed. In the circumstances of this case we are not passing any order with regard to the costs.
Pronounced in the open Forum on this the 25th day of November 2015
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/ByOrder,
Senior Superintendent.
Appendix
Complainant’s Exhibits:
Exbt. A1 : Copy of invoice dt. 27-06-2012
A2 : Copy of invoice dt. 09-07-2012
A3 : Copy of statement of account
dt. 12-07-2012
A4 : Copy of certificate of insurance
A5 : Copy of job slip cum demand repair
explanation sheet
A6 : Copy of lawyer notice dt. 15-09-2012
A7 : A.D. Card
A8 : A.D. Card
A9 : Reply notice dt. 06-10-2012
Opposite party’s Exhibits: : Nil
Exbt. B1 : Satisfaction note
B2 : Dealership Agreement
B3 : Copy of job card & defects noticed
series
B4 : Warranty policy
B5 : Popular vehicles and services Ltd.
B6 : Job slip cum demanded repair
explanation sheet.
B7 : Copy of letter
B8 : Copy of vehicle inspection report
B9 : Letter of authority dt. 01-10-2014
Depositions:
PW1 : Manu Eldo Varanathu
PW2 : P.S. Dharmarajan
DW1 : Sreeraj K.
DW2 : Geetha Krishnan
C1 : Commission report
Copy of order despatched on:
By Post: By Hand:
