BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> PRESENT:<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI. A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.No.429/2001 Filed on 19/10/2001<br /> Dated: 15..07..2008<br /> <br /> Complainant:<br /> Vasuki Devadas, Blue Bells, Belhaven Gardens, Kowdiar, Thiruvananthapuram.<br /> (By Adv. Smt. Indira Raveendran)<br /> Opposite parties:<br /> 1.Daewoo Motors India Ltd., represented by its Managing Director, Flat No.7, 2nd floor, Precision Plaza, No.281, Annasala, Teynampet, Chennai – 18.<br /> <br /> (By Adv. Sri. P. Krishnankutty Nair)<br /> <br /> 2. M/s. St.Antony's Automobiles, T.C.31/1398, Chackai Byepass, Thiruvananthapuram – 24.<br /> <br /> <br /> This O.P having been heard on 31..05..2008, the Forum on 15..07...2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SMT. S.K.SREELA, MEMBER:<br /> <br /> The case of the complainant is as follows: The complainant had purchased a Matiz SG car on 19..10..2000 from the opposite parties for Rs. 3,55,000/-. A warranty for a period of 24 months was offered by the opposite parties and it was assured that the authorised dealers shall either repair or replace any Daewoo genuine parts that is acknowledged by the manufacturer to be defective in material or workmanship within the warranty period. Immediately on use of the car after delivery, the complainant noticed defect in working of the second gear of the car. When it was informed, the Manager promised to rectify the defect during first free service. But even after the first free service the defects of the second gear was not rectified. The Service Manager assured that the gear box will be replaced during the second free service. But it was not rectified. The complainant cannot use the car properly due to the inherent manufacturing defects persisting in the vehicle. Hence this complaint directing the opposite parties to replace the gear box kit and other defective parts along with compensation and costs.<br /> <br /> 2. The 1st opposite party has filed their version contending as follows: The complaint is not maintainable. When the complainant brought her car to the 2nd opposite party, the alleged difficulty in operating the gear was thoroughly inspected and it was found not defective. The gear system of the Matiz cars has been developed and designed overseas adopting the latest technology and standard and the same gear system is imported from Korea and introduced in the cars manufactured in India also. As of today nearly about eight millions Matiz cars are being driven on road across the globe successfully with the same gear system and in India also the same gear system is fitted in about 70-80000 cars running across the country. 2nd opposite party clearly explained the working of the gear system of the car to the complainant and assured her that there was no manufacturing defect in the gear system of the car, however it operates on its specifications and in no way can be termed as a defective one. The contention of the complainant with regard to non use of car by the complainant due to alleged defect in second gear are totally wrong and denied. The complainant continuously drove the vehicle and after 04..05..2001 brought her car to 2nd opposite party on 18..10..2001 and 20..11..2001 and till then the car ran 5019kms. On 18..10..2001 the complainant again reported the alleged problem in second gear. The Service Engineer/Supervisors of 2nd opposite party again made some adjustment to satisfy the complainant and educated the complainant about the functioning of the gears and tried to remove the misconception regarding hardness in the second gear. There was no problem in the second gear of the car of the complainant, however, the complainant still had some misconception about the same, it was based on presumptions only. It is denied that the complainant is not using the car due to alleged defect. The opposite parties denies that the opposite parties were negligent in curing the defects in the car or the opposite parties adopt any sort of unfair trade practice.<br /> 3. The 2nd opposite party remains exparte.<br /> 4. The complainant has filed affidavit and marked Exts. P1 to P6. The expert commissioner has been examined as CW1 and the report filed by the expert commissioner is marked as Ext.C1.<br /> <br /> 5. The points to be considered are:<br /> (i)Whether there is any manufacturing defect as alleged in the complaint?<br /> <br /> (ii)Whether there is any deficiency in service on the part of opposite parties?<br /> <br /> (iii)Reliefs and costs?<br /> <br /> 6. Point No.(i) : The allegation of the complainant is that, the second gear of the car is not working properly. The 1st opposite party has denied the same and has further contended that when the car was brought before the 2nd opposite party with the alleged difficulty is operating the gear, the Supervisor of 2nd opposite party thoroughly inspected the car and had found no defects whatsoever in the gear system of the car. At this juncture, the report Ext.C1, filed by the expert commissioner, after inspecting the said vehicle is to be looked into. As per Ext.C1, the commissioner during trial run had felt that, shifting to second gear was found difficult. The expert commissioner has concluded that the 2nd opposite party had made all attempts to rectify the complaint by adjustments during the free services, but still the complaint is existing, which indicates that the gear box assembly is having manufacturing defect and needs replacement. Expert commissioner has been examined as CW1 and he has not been cross examined by the opposite parties. The opposite parties have not filed objection to the commission report also. Hence the findings of the expert commissioner, CW1, stands undisputed.<br /> <br /> 7. In the repair order form, Ext.P1, dated 04..05..2001, in which it is seen as free service, it has been noted that 'check second gear hard'. Hence the difficulty in shifting the second gear was in existence even within the free service period and it had been brought to the notice of the 2nd opposite party is evident from the above document. The commissioner has reported that the complainant had noted the problems of second gear at the time of all 3 free services. The above observation goes to show that the gear box assembly of the vehicle in dispute had showed defects even well within the period of free service. The 1st opposite party has contended in their version that the complainant was also advised to have a proper balance in the speed of the car and gear shift pattern as recommended in the Owner's Manual supplied to the complainant, at the time of delivery of the car. Supposing for the sake of arguments, the complainant had no knowledge in the gear shift pattern, the commissioner who is an expert would not have had the same problem, but he had also experienced the very same difficulty in shifting the gear. Hence the knowhow of the complainant with regard to the use of the gear is not doubtful.<br /> <br /> 8. In the foregoing discussions it is found that the gear box assembly of the car in dispute is defective for which there is corroborative evidence of the complainant, Ext.C1, Commissioner's report, deposition of CW1, which would support that there is manufacturing defect.<br /> <br /> 9. Point No.(ii) : The malfunctioning of the gear had occurred during the warranty period. When the sale of machineries carries it with a warranty, the seller is bound to maintain it in a proper working order during the period of warranty. Here, the failure of the opposite parties to rectify the malfunctioning of the gear box amounts to deficiency in service. The 2nd opposite party has never turned up to contest the case or deny the allegations levelled against them. It has been proved with evidence that the gear box assembly of the vehicle had manufacturing defect. In the above circumstance, it is found that it is a clear case of deficiency in service on the part of both the opposite parties for which the complainant has to be compensated.<br /> <br /> 10. Point No.(iii) : In the above said circumstance, the complainant is found entitled to get the replacement of defective gear box assembly of the car in dispute with a defect free one. Though the complainant has claimed for replacement of other defective parts of the car, there is no evidence before this Forum for the same. The expert commissioner has also reported the defects in the gear box assembly only. Hence the prayer for replacement of other defective parts of the car is not allowable. The complainant had undisputedly wasted time, money, energy in getting the gear box repaired repeatedly and could not have the satisfaction of using new car. The complainant had suffered due to the above mentioned fault in the vehicle which is certainly deficiency in service on the part of opposite parties who are liable for the mental stress and loss. The mental distress of such person could be understood only when one puts himself in the place of the complainant. Though this cannot be commutted in terms of money, the complainant has to be compensated for the sufferings she had to undergo.<br /> 11. In the light of the above, we find that the complainant is entitled for an amount of Rs. 2,000/- towards compensation from the opposite parties jointly and severally.<br /> <br /> In the result, the opposite parties are jointly and severally directed to replace the defective gear box assembly of the complainant's car with a defect free new gear box assembly and are further directed to pay to the complainant an amount of Rs.2,000/- (Rupees Two thousand only) towards compensation and a cost of Rs. 2,000/- (Rupees two thousand only) within a period of one month, failing which the said amounts shall carry interest @ 12% per annum from the date of the order.<br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of July, 2008.<br /> <br /> <br /> G.SIVAPRASAD, PRESIDENT.<br /> <br /> <br /> BEENA KUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> ad.<br /> <br /> <br /> <br /> <br /> <br /> O.P.No.429/2001<br /> APPENDIX<br /> I. Complainant's witness: NIL<br /> II.Complainant's documents:<br /> P1 : Original repair order form No.M2B0 701 dated 04..05..2001 from 2nd opposite party<br /> P2 : Copy of letter dated 02..07..2001 addressed to the 1st opposite party issued by the complainant.<br /> P2(a : Original postal receipt dated 03..07..2001<br /> <br /> P3 : Original postal acknowledgment card dated 6043/03..07..2001<br /> P4 : Reply letter dated 10..07..2001 addressed to the complainant issued by the 1st opposite party<br /> P5 : Copy of advocate notice dated 25..08..2001 issued to the 2nd opposite party<br /> P6 : Original postal receipt dated 06..09..2001<br /> <br /> III.Opposite parties witness : NIL<br /> <br /> IV.Opposite parties' documents : NIL<br /> <br /> V.Commissioner witness:<br /> <br /> CW1 : Thomas A. Vadakkan<br /> VI.Commissioner documents:<br /> <br /> C1 : Original Mahasar submitted by the commissioner<br /> <br /> PRESIDENT<br /> <br />