BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. Nos. 98/2002 & 191/2003

Dated: 15..04..2009

O.P.No. 98/2002

Complainant:

Vettoor R. Jayaprakash, Anandha Bhavan, Market Road, Attingal – 695 101.

(By Adv. Vettoor S. Prakash)

Opposite parties:

1. Maruti Udyog Limited, Represented by Managing Director, IInd Floor, Jeevan Prakash, ASH-25 Kasturba Gandhi Marg, New Delhi – 110 001.

(By Adv. K.L. Narasimhan)

2. Indus Motor Co. Ltd., Trivandrum, represented by the Manager, Indus Motor Co.Ltd, T.C.24/885, Mettukada, Thycaud, Thiruvananthapuram.

(By Adv. S. Reghukumar)

O.P.No. 191/2003

Complainant:

Vettoor R. Jayaprakash, Anandha Bhavan, Market Road, Attingal – 695 101.

Opposite parties:

1. The Maruti Udyog Limited, Represented by Managing Director, IInd Floor, Jeevan Prakash, ASH-25 Kasturba Gandhi Marg, New Delhi – 110 001.

(By Adv. K.L. Narasimhan)

2. The Popular Vehicles and Services Ltd., Quilon, represented by the Manager, Popular Vehicle and Service, Terminal Theatre Building, Beach Road, Pallithottam, Quilon-691 006.

These complaints are disposed of after the period so specified under the Consumer Protection Act, 1986. O.P. 98/2002 remanded as per order dated 7/8/2007 of the Hon'ble State Commission, whereas O.P. 191/2003 was taken up for orders by the predecessors of this Forum on 14..03..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaints jointly on joint trial application by the complainant. These O.Ps having been heard on 07..03..2009, the Forum on 15..04..2009 delivered the following:

COMMON ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint (O.P. 98/2002)are that complainant had purchased a Maruti Diesel Zen Motor Car manufactured by the 1^st opposite party (Maruti Udyog Limited), from the 2^nd opposite party – Indus Motor Company Limited for Rs.4,44,622/- on 15/9/1999, on assurance of opposite parties that the said car is of superior quality and excellence in performance, that the said vehicle was of very poor performance and defective in many respects, that all the structural components of the said vehicle were of low quality and from the very inception, the functioning of the vehicle was unsatisfactory. Complainant issued a notice to 1^st opposite party on 26/10/1999 stating about the poor performance of the vehicle. Subsequently complainant was directed to entrust the vehicle to Shri. Vijaya Chandran, Works Manager, Maruti Indus Workshop, Thiruvananthapuram, who checked the vehicle and found that complaints are genuine. On 4/2/2000 complainant met with an accident while driving the said vehicle slowly because of its poor quality of components and functioning. On 10/2/2000 complainant issued another notice to 1^st opposite party informing them about the defects and unsatisfactory performance of the said vehicle and as per the advice of the 1^st opposite party, complainant had placed the vehicle before the 2^nd opposite party, they also showed their inability regarding the defects of the vehicle, but done something by replacing the piston and pump system etc in order to enhance the pulling efficiency. Even after repeated repairs and replacement of various components, the functioning of the vehicle was not satisfactory and defects persisted. The dismounting and mounting of major defective components led to some other subsequent trouble. There is leakage from the coolant, water pump problem, A/C Gas leakage, Radiator leakage etc., without troubles the complainant could not use the vehicle even for a single day till the date of complaint. Complainant had spent about Rs.20,000/- for repair and replacement of various components of the vehicle. The vehicle developed major troubles like piston and pump trouble, engine trouble, gear box trouble, coolant leakage into engine, chase cracking, water pump trouble, rusting of platform etc within a short span of use of less than 50000 kilometers and the vehicle delivered to the complainant is full of defects. Hence this complaint to direct the opposite parties to refund Rs. 4,44,622/- the price of the vehicle and Rs. 20,000/- toward expenses made by the complainant and Rs.15,000/- towards advance lumpsum tax paid and Rs.10,000/- towards compensation and cost.

2. 1^st opposite party filed version contending that the complaint is not maintainable. The complainant has made the said allegation after the vehicle in question met with an accident due to the driving error of the complainant. The complaint is vague in nature without any supporting material on record. The vehicle in question is in the extensive use of the complainant and the opposite parties discharged their obligations during the warranty period. The complainant has failed to set out any specific defect in the vehicle during the warranty period. The complainant is neither entitled to replacement of vehicle with new vehicle nor the refund of the price of the vehicle as per the terms and conditions of the sale. The dealer of the 1^st opposite party had carried out the repair or replacement of components. There was no repeated defect in the vehicle as alleged in the complaint. The vehicle met with an accident on 7/2/2000 due to negligent driving. The vehicle in question was delivered to the complainant in perfect roadworthy conditions subject to the warranty terms and conditions. Hence 1^st opposite party prayed for dismissal of the complaint.

3. 2^nd opposite party filed version contending that the complaint is barred by limitation. Complainant had suppressed a lot of material facts regarding the vehicle. The vehicle involved in the case is a subject matter of theft committed by some criminals, that the vehicle was stolen from the residence of the complainant on 6/8/2000 and the FIR was prepared by the Attingal Police. The complainant has lodged an insurance claim to the insurer of the vehicle, the vehicle was later recovered by the Police after a few months. From the date of theft and till recovery the vehicle was under the custody of them and they were using the vehicle in such a manner as that would affect the condition of the vehicle. The allegation regarding the malfunctioning of the vehicle is due to the misuse of the vehicle by those persons who are behind the theft of the vehicle. There is no manufacturing defect in any part of the vehicle. There is no deficiency in service on the part of the 2^nd opposite party. Hence 2^nd opposite party prayed for dismissal of the complaint.

The facts leading to the filing of the complaint (O.P.No. 191/2003) are that on 11/2/2003 the above said car had a sudden brake down due to engine problem and 2^nd opposite party (The Popular Vehicles and Services Ltd., Quilon) had towed the vehicle to their workshop on 12/2/2003 and despite of repeated request the 2^nd opposite party detained the vehicle till 2/5/2003 at their workshop on the pretext of engine work. Though the complainant had requested the 2^nd opposite party to get the repair work done at their cost, there was no response from them, finally the complainant was forced to remit Rs.49,460/- as per three consecutive bills. Hence this complaint to direct 1^st opposite party to make reimburse the said amount and 2^nd opposite party to pay Rs.11,250/- for unlawful detention of the vehicle along with Rs.25,000/- toward compensation.

The 1^st opposite party filed version denying the allegations of engine trouble due to manufacturing defect. It is submitted by 1^st opposite party that they are not aware of the repairs alleged to have been carried out by the 2^nd opposite party and the matter is between complainant and 2^nd opposite party and that 1^st opposite party is not liable to answer the claim.

2^nd opposite party filed version contending that 2^nd opposite party is not a party to the transactions mentioned in paras 1 to 8 in the complaint, that such narrations will lead to the application of resjudicata, that as complainant insisted for the repairs on 12/12/2003, 2^nd opposite party made arrangement for towing the vehicle concerned from Nikil Taj to the workshop of the 2^nd opposite party, and that the 2^nd opposite party had carried out the repair and maintenance work of the vehicle concerned promptly without delay and the vehicle was ready for delivering during the first week of April 2003, but complainant wanted the vehicle to be delivered without effecting the payment of repaired charges on the ground of pending litigation between complainant and 1^st opposite party in O.P.98/2002. On remittance of the repair work complainant took delivery of the vehicle unconditionally. It is further submitted by the 2^nd opposite party that since the vehicle was repaired at the workshop of the 2^nd opposite party at Kollam, this Forum lacks jurisdiction to entertain this complaint. Hence 2^nd opposite party prayed for dismissal of the complaint.

The points that arise for consideration in O.P.98/2002 are:

1. Whether the Maruti Diesel Model Zen Motor Car is having manufacturing defect?

2. Whether the defects in the vehicle have been developed within the period of warranty?

3. Whether the complainant is entitled for refund of the purchase price of the vehicle?

4. Other reliefs and costs?

The points that arise for consideration in O.P. 191/2003 are:

1. Whether the said vehicle had developed major engine trouble on 11/2/2003, due to manufacturing defect?

2. Whether the complainant is entitled to get the vehicle repaired at the cost of opposite party?

3. Other reliefs and costs?

In support of the first complaint (O.P. 98/2002), complainant has filed affidavit and Exts.P1 to P15 and Ext.C1 were marked. In rebuttal, 2^nd opposite party has filed affidavit and Exts. D1 & D2 were marked.

In support of the second complaint (O.P. 191/2003), complainant has filed affidavit and Exts. P1 to P19 were marked. In rebuttal, 1^st opposite party has filed affidavit. Opposite parties did not file any documents.

Points (i) to (iv) in O.P. 98/2002: It has been the case of the complainant that complainant had purchased a Maruti Diesel Zen Motor Car manufactured by the 1^st opposite party, Maruti Udyog Ltd., from the 2^nd opposite party, Indus Motor Company Ltd for Rs.4,44,629/- on 15/9/1999, on assurance of opposite parties that the car is of superior quality and excellance in performance, that vehicle is of very poor performance and defective in many respects and that the structural components of the vehicle are of low quality and from the very inception of the functioning the vehicle has been unsatisfactory. Complainant alleges further that on issuance of notice dated 26/10/1999 to 1^st opposite party, complainant was directed to entrust the vehicle to the 2^nd opposite party and accordingly 2^nd opposite party checked the vehicle and found the complaints were genuine. Complainant alleges further that on 4/2/2000 the said vehicle met with an accident because of poor quality of its components and functioning and of manufacturing defect of the vehicle. It has also been the case of the complainant that even after repeated repairs and replacement of various components; the functioning of the vehicle is not satisfactory and defects still persist. Submission by the complainant is that though the pumping system was replaced by the 2^nd opposite party the defect could not be rectified. Further, it is submitted that the mounting and dismounting of major components led to subsequent troubles. There is leakage from the coolant, water pump problem, A/c Gas leakage, Radiator leakage, low engine pulling capacity and very high engine sound. It is further alleged that complainant had spent about Rs.20,000/- for repair and replacement of various components of the vehicle. 1^st opposite party denied the allegation and remarked that the vehicle in question met with an accident not due to defects, but due to the driving error of the complainant. 2^nd opposite party denies the allegation in the complaint and submission by the 2^nd opposite party is that the said vehicle was stolen from the residence of the complainant on 6/8/2000, a crime was registered by the Attingal Police and later it was recovered by the Police and from the date of theft till recovery, the vehicle was under the custody of the criminals and they were using the vehicle in such a manner as that would affect the condition of the vehicle. It is submitted that 2^nd opposite party inspected the vehicle and found that the vehicle did not suffer from any defect and that the complainant had approached the 2^nd opposite party for periodical maintenance and the same was duly executed. Ext. P1 is the advocate notice dated 26/10/1999. Ext.P2 is the acknowledgement card of Ext.P1. Ext.P3 is the copy of the notice dated 10/2/2000 addressed to 1^st opposite party. In Ext.P3, Ext.P1 is referred. Ext. P4 is the acknowledgement of Ext.P3. Ext.P5 is the reply dated 5/11/1999 issued by the 1^st opposite party with reference to Ext.P1. Ext.P6 is the reply dated 17/2/2000 issued by the 1^st opposite party with reference to Ext.P3. Ext.P7 is the copy of the hire purchase schedule dated 6/10/1999 issued by the Sundaram Finance Ltd. Ext. P8 is the copy of the credit bill dated 11/7/2002 issued by the Popular Vehicles and Services Ltd to the complainant for Rs.3,382/-. Ext.P10 is the copy of the credit bill dated 4/1/2003 issued by Popular Vehicles to the complainant. Ext.P11 is the credit/cash bill dated 20/1/2003 issued by Nikhil Taj, Maruti Authorised Service Station. Ext.P12 is the copy of the job order dated 12/2/2003 issued by Popular Vehicles and Services Ltd. Ext.D1 is the copy of FIR prepared by the Attingal Police. As per Ext.D1 the vehicle in dispute was stolen from the residence of the complainant on 6/8/2000. Ext.D2 is the copy of the Motor Claim Form. It is pertinent to note that regarding the theft of the vehicle the fact is not mentioned in the complaint, while regarding the accident the fact is mentioned in the complaint.

A commission has been appointed who is an expert Engineer in Kerala Automobiles and being an opinion of an experienced man it is evidently given due importance. Ext. C1 is the commission report. 2^nd opposite party had filed objection to commission report, on 26^th March 2003, while 1^st opposite party filed objection to CR on 5^th August 2008. Complainant has never mentioned about the warranty in the complaint, nor has he furnished the warranty card.

In the versions also, there is no mention regarding the warranty period. Commissioner has not been cross examined by the opposite parties inspite of ample opportunity was given to them. Commission in his C1 report, stated that in the vehicle in dispute, the engine compartment is not adequate to accommodate the engine, which will create future service problems. For dismantling the gear box, the entire engine has to be dismantled, while dismantling the engine, the refrigerant gas of the Air conditioner to be re-fitted. Commissioner further says that the Fuel injection pump is the heart of a diesel engine and highly sophisticated equipment and any mismatch will create low pick up, high emission, power loss, low mileage etc. According to the Commissioner, this is a major manufacturing defect. Now the complaint is rectified by the dealer, by reclaiming the fuel injection pump. Commissioner further reports that the water pump/Regulator Assembly/ S/A Rectifier were found changed within a short span of the use of the vehicle. Commissioner further says that the spare parts changed/work done due to the accident during February 2000 were not considered to ascertain the defects of the vehicle in dispute. Various defects have been pointed out by the Commissioner and the findings of the commission are as follows:

1. Fuel injection pump originally fitted on the Diesel Engine was inadequate to deliver the required power to the engine. This was the major reason for low pick up. This is a design/manufacturing defect.

2. The chasis of the car in dispute is having a crack and now welded. One of the reasons for the crack is the improper design of the chasis to meet the requirements of the Diesel Engine fitted on the car.

3. Rattling sound is high – Mainly due to vibration of the Diesel Engine.

4. The Diesel Engine fitted on the vehicle is not exclusively designed for this car. Weight of the Diesel Engine is more than 75kgs compared with Petrol Engine of Maruthi Zen.

5. The car was procured on 15/9/1999. Within a short span of 3 years, the maintenance work done/spare parts replaced was on the higher side. Chasis welding, Silencer welding, steering column welding, Replacement of water pump, Regulator Assembly, Holder S/A Rectifier, Wheel cylinders, Repair of Gear box are few of them.

It is pertinent to point out that the complainant had purchased the car on 15/9/1999 while the first complaint of the vehicle in dispute is seen sent to opposite parties on 26/10/1999 as per Ext.P1, and repairs were seen done as per 3^rd free service job card No. 0013044 dated 17/12/1999 as reported by the Commission in Ext.C1. Further, it is to be noted that the car met with accident during February 2000, but according to the expert such accident need not cause design defect, or engine defect or water pump defect or gear-box trouble. There is no dispute that the engine found at the time of delivery, at the time of accident and at the time of inspection are the original one. Though opposite parties have filed objection to Commission Report, it is not seen corroborated by examining the expert. 1^st opposite party has never filed affidavit in support of their version, nor furnished any documents to controvert the pleadings in the complaint, nor taken any step to examine the expert commission. Though 2^nd opposite party has filed affidavit and objection to commission report, commissioner is not seen examined. The case in hand was remitted to this Forum by the Hon'ble Appellate Commission to pass order in accordance with law after giving opportunities to opposite parties and complainant to adduce evidence. Opposite parties did not come forward to adduce further evidence, in spite of ample opportunity was given to them.

It is submitted by the opposite parties that the vehicle has been subject to theft, the vehicle was later recovered by the Police after a few months, and that from the date of theft till recovery the vehicle was under the custody of the criminals and they were using the vehicle in such a manner as that will affect the condition of the vehicle. Further opposite parties submit that the allegation in the complaint regarding the malfunctioning of the vehicle, if any, is due to the misuse of the vehicle by these persons who are behind the theft of the vehicle. Opposite parties did not adduce any evidence to substantiate their stand that the malfunctioning of the vehicle was due to the misuse of the vehicle by the persons behind the theft of the vehicle. It is pertinent to point out that there is no case on the part of opposite parties that the thieves have replaced any part. As per Ext. C1 report, the vehicle was giving trouble even before the theft and accident.The original engine continues in the vehicle. Hence the defects pointed out by the expert in Ext.C1 are the basic defects of the vehicle. In view of the above and in the light of evidence available on records we find the vehicle is having inherent manufacturing defect and the troubles are developed within the warranty period. Evidently, complainant has used the vehicle for a long time. So at this distance of time it will not be just and proper to direct the opposite parties to replace the vehicle with a new one or refund the purchase price of the vehicle. In our view, since the vehicle had already been repaired by the complainant and complainant had been running the same for a long time, we allow the complainant to own and retain the vehicle and direct opposite parties to refund half of the purchase price of the vehicle which comes to the tune of Rs.2,24,311/-. Complainant is also entitled to get compensation from the opposite parties.

Points (i) to (iii) in O.P. 191/2003 : In this case, complainant alleges that on 11/2/2003 the above said car had a sudden brake down due to engine problem and the 2^nd opposite party had towed the vehicle to their workshop on 12/2/2003 and despite of repeated request the 2^nd opposite party detained the vehicle till 2/5/2003 at their workshop on the pretext of engine work. It is further alleged in the complaint that though the complainant had requested the 2^nd opposite party to get the repair work done at their cost, there was no response from them, finally complainant was forced to remit Rs.49,460/98 as per three consecutive bills. 1^st opposite party denies the allegation of engine trouble due to manufacturing defect. Further, 1^st opposite party says that they are not aware of the repairs alleged to have been carried out by the 2^nd opposite party and the matter is between the complainant and the 2^nd opposite party and that 1^st opposite party is not liable to answer the claim. 2^nd opposite party says that 2^nd opposite party is not a party to the transaction mentioned in paragraphs 1 to 8 of the complaint and that such narration will lead to the application of resjudicata. It is submitted by the 2^nd opposite party that as the complaint insisted for the repairs on 12/12/2003 2^nd opposite party made arrangements for towing the vehicle concerned from Nikhil Taj to the workshop of the 2^nd opposite party, that the 2^nd opposite party had carried out the repair and maintenance works of the vehicle concerned promtply, that without delay the vehicle was ready for delivering during the first week of April 2003, but complainant wanted the vehicle to be delivered without effecting payment of repaired charges on the ground of pending litigation between the complainant and the 1^st opposite party. Further, 2^nd opposite party says that upon receipt of the letter dated 21/4/2003 issued by the 2^nd opposite party, complainant took delivery of the vehicle on payment of all charges levied by the 2^nd opposite party unconditionally. Further, 2^nd opposite party says that since the vehicle was repaired at the workshop of the 2^nd opposite party at Kollam, this Forum lacks jurisdiction to try this complaint. On going through the complaint, version and Exts. P1 to P19 it is to be noted, that the reference throughout the complaint is in connection with O.P.No.98/2002, wherein the allegation of manufacturing defect had already been raised by the complainant and expert commission had already been inspected the vehicle and filed report as Ext.C1., and since this Forum had already found manufacturing defect in the said vehicle and award was granted thereupon in O.P.98/2002, further allegation of the same manufacturing defect in the subsequent complaint (in O.P. 191/2003) is devoid of bonafides. Hence this complaint has no merits, which deserves to be dismissed.

In the result, O.P. 98/2002 is allowed. Opposite parties shall jointly and severally refund a sum of Rs.2,24,311/-to the complainant. Opposite parties shall also pay a sum of Rs.10,000/- toward compensation and Rs.5,000/- as cost to the complainant. Complainant is allowed to own and retain the vehicle in dispute. The said amounts shall carry interest at the rate of 18%, if not paid within two months from the date of receipt of this order.

Whereas, O.P. 191/2003 is dismissed. Both parties shall bear and suffer their costs.

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.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of April, 2009.

G. SIVAPRASAD

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.98/2002

APPENDIX

1. Complainant's witness : NIL

II.Complainant's documents:

P1 : Copy of letter dt. 26/10/99 issued to 1^st opp. Party by the complainant.

P1(a) Postal receipt dt. 26/10/99

P2 : Postal acknowledgment card dt. 29/10/1999

P3 : Copy of letter dt. 10/02/2000 issued by complainant

P4 : Acknowledgment card

P5 : Letter dt. 5/11/1999 issued by 1^st opp. Party

P6 : " 17/02/2000

P7 : Second schedule dt. 6/10/1999

P8 : Copy of credit bill No.1431 dt. 11/07/2002 issued by 2^nd opp. Party

P9 : Copy of receipt dt. 11/7/2002

P10: Copy of credit bill No.3739 dt. 14/01/2003

P11: Copy of credit/cash bill dt. 20/01/2003

P12: Copy of Job order dt. 12/02/2003

P13: Copy of letter dt. 15/2/2003 issued by the complainant

P14: Confirmation report dt. 15/02/2003

P15: Copy of letter dt. 19/4/2003 issued by complainant

P16: Letter dated 11/4/2003 issued by 2^nd opp. Party

III. Opposite parties' witness: NIL

IV. Opposite parties' documents:

D1 : Copy of First Information Report dt. 7/8/2000 issued from the O/o the Attingal Police Station.

D2 : Copy of Motor Claim Form

V. Court Witness: NIL

VI.Court Exhibit:

C1 : Commission Report dt. 15/10/2002

O.P.No. 191/2003

APPENDIX

I. Complainant's witness: NIL

II. Complainant's documents:

P1 : Fax copy of confirmation receipt dt. 15/2/2003

P2 : Copy of letter dated 15/2/2003 issued by the complainant

P3 : Copy of reply letter dt. 11/4/2003 issued to the complainant by opp. Party

P4 : Copy of letter dt.19/4/2003 issued by complainant

P5 : Reply letter dated 21/4/2003 to the complainant

P6 : Envelope of letter addressed to the complainant

P7 : Credit bill No.105 dt. 11/4/2003

P8 : Receipt voucher No.000128 dt. 2/5/2003

P9 : Cash bill dated 2/5/2003

P10: Copy of letter dated 22/5/2003

P11: Acknowledgement card dt. 2/5/2003

P12: Copy of Commission Report dt. 15/102002

P13: Copy of order dt. 2/6/2003 in O.P. 98/2002 of the Hon'ble Consumer Disputes Redressal Forum, Tvpm.

P14: Letter dt. 10/11/1999 issued to the complainant by the 2^nd opp.party.

P15: Letter dt. 1/11/1999 issued to the complainant by 1^st opp.party

III. Opposite parties' witness: NIL

IV. Opposite parties' documents: NIL

V. Court Witness NIL

6. Court exhibit NIL

PRESIDENT

ad.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. Nos. 98/2002 & 191/2003

Dated: 15..04..2009

O.P.No. 98/2002

Complainant:

Vettoor R. Jayaprakash, Anandha Bhavan, Market Road, Attingal – 695 101.

(By Adv. Vettoor S. Prakash)

Opposite parties:

1. Maruti Udyog Limited, Represented by Managing Director, IInd Floor, Jeevan Prakash, ASH-25 Kasturba Gandhi Marg, New Delhi – 110 001.

(By Adv. K.L. Narasimhan)

2. Indus Motor Co. Ltd., Trivandrum, represented by the Manager, Indus Motor Co.Ltd, T.C.24/885, Mettukada, Thycaud, Thiruvananthapuram.

(By Adv. S. Reghukumar)

O.P.No. 191/2003

Complainant:

Vettoor R. Jayaprakash, Anandha Bhavan, Market Road, Attingal – 695 101.

Opposite parties:

1. The Maruti Udyog Limited, Represented by Managing Director, IInd Floor, Jeevan Prakash, ASH-25 Kasturba Gandhi Marg, New Delhi – 110 001.

(By Adv. K.L. Narasimhan)

2. The Popular Vehicles and Services Ltd., Quilon, represented by the Manager, Popular Vehicle and Service, Terminal Theatre Building, Beach Road, Pallithottam, Quilon-691 006.

These complaints are disposed of after the period so specified under the Consumer Protection Act, 1986. O.P. 98/2002 remanded as per order dated 7/8/2007 of the Hon'ble State Commission, whereas O.P. 191/2003 was taken up for orders by the predecessors of this Forum on 14..03..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaints jointly on joint trial application by the complainant. These O.Ps having been heard on 07..03..2009, the Forum on 15..04..2009 delivered the following:

COMMON ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint (O.P. 98/2002)are that complainant had purchased a Maruti Diesel Zen Motor Car manufactured by the 1^st opposite party (Maruti Udyog Limited), from the 2^nd opposite party – Indus Motor Company Limited for Rs.4,44,622/- on 15/9/1999, on assurance of opposite parties that the said car is of superior quality and excellence in performance, that the said vehicle was of very poor performance and defective in many respects, that all the structural components of the said vehicle were of low quality and from the very inception, the functioning of the vehicle was unsatisfactory. Complainant issued a notice to 1^st opposite party on 26/10/1999 stating about the poor performance of the vehicle. Subsequently complainant was directed to entrust the vehicle to Shri. Vijaya Chandran, Works Manager, Maruti Indus Workshop, Thiruvananthapuram, who checked the vehicle and found that complaints are genuine. On 4/2/2000 complainant met with an accident while driving the said vehicle slowly because of its poor quality of components and functioning. On 10/2/2000 complainant issued another notice to 1^st opposite party informing them about the defects and unsatisfactory performance of the said vehicle and as per the advice of the 1^st opposite party, complainant had placed the vehicle before the 2^nd opposite party, they also showed their inability regarding the defects of the vehicle, but done something by replacing the piston and pump system etc in order to enhance the pulling efficiency. Even after repeated repairs and replacement of various components, the functioning of the vehicle was not satisfactory and defects persisted. The dismounting and mounting of major defective components led to some other subsequent trouble. There is leakage from the coolant, water pump problem, A/C Gas leakage, Radiator leakage etc., without troubles the complainant could not use the vehicle even for a single day till the date of complaint. Complainant had spent about Rs.20,000/- for repair and replacement of various components of the vehicle. The vehicle developed major troubles like piston and pump trouble, engine trouble, gear box trouble, coolant leakage into engine, chase cracking, water pump trouble, rusting of platform etc within a short span of use of less than 50000 kilometers and the vehicle delivered to the complainant is full of defects. Hence this complaint to direct the opposite parties to refund Rs. 4,44,622/- the price of the vehicle and Rs. 20,000/- toward expenses made by the complainant and Rs.15,000/- towards advance lumpsum tax paid and Rs.10,000/- towards compensation and cost.

2. 1^st opposite party filed version contending that the complaint is not maintainable. The complainant has made the said allegation after the vehicle in question met with an accident due to the driving error of the complainant. The complaint is vague in nature without any supporting material on record. The vehicle in question is in the extensive use of the complainant and the opposite parties discharged their obligations during the warranty period. The complainant has failed to set out any specific defect in the vehicle during the warranty period. The complainant is neither entitled to replacement of vehicle with new vehicle nor the refund of the price of the vehicle as per the terms and conditions of the sale. The dealer of the 1^st opposite party had carried out the repair or replacement of components. There was no repeated defect in the vehicle as alleged in the complaint. The vehicle met with an accident on 7/2/2000 due to negligent driving. The vehicle in question was delivered to the complainant in perfect roadworthy conditions subject to the warranty terms and conditions. Hence 1^st opposite party prayed for dismissal of the complaint.

3. 2^nd opposite party filed version contending that the complaint is barred by limitation. Complainant had suppressed a lot of material facts regarding the vehicle. The vehicle involved in the case is a subject matter of theft committed by some criminals, that the vehicle was stolen from the residence of the complainant on 6/8/2000 and the FIR was prepared by the Attingal Police. The complainant has lodged an insurance claim to the insurer of the vehicle, the vehicle was later recovered by the Police after a few months. From the date of theft and till recovery the vehicle was under the custody of them and they were using the vehicle in such a manner as that would affect the condition of the vehicle. The allegation regarding the malfunctioning of the vehicle is due to the misuse of the vehicle by those persons who are behind the theft of the vehicle. There is no manufacturing defect in any part of the vehicle. There is no deficiency in service on the part of the 2^nd opposite party. Hence 2^nd opposite party prayed for dismissal of the complaint.

The facts leading to the filing of the complaint (O.P.No. 191/2003) are that on 11/2/2003 the above said car had a sudden brake down due to engine problem and 2^nd opposite party (The Popular Vehicles and Services Ltd., Quilon) had towed the vehicle to their workshop on 12/2/2003 and despite of repeated request the 2^nd opposite party detained the vehicle till 2/5/2003 at their workshop on the pretext of engine work. Though the complainant had requested the 2^nd opposite party to get the repair work done at their cost, there was no response from them, finally the complainant was forced to remit Rs.49,460/- as per three consecutive bills. Hence this complaint to direct 1^st opposite party to make reimburse the said amount and 2^nd opposite party to pay Rs.11,250/- for unlawful detention of the vehicle along with Rs.25,000/- toward compensation.

The 1^st opposite party filed version denying the allegations of engine trouble due to manufacturing defect. It is submitted by 1^st opposite party that they are not aware of the repairs alleged to have been carried out by the 2^nd opposite party and the matter is between complainant and 2^nd opposite party and that 1^st opposite party is not liable to answer the claim.

2^nd opposite party filed version contending that 2^nd opposite party is not a party to the transactions mentioned in paras 1 to 8 in the complaint, that such narrations will lead to the application of resjudicata, that as complainant insisted for the repairs on 12/12/2003, 2^nd opposite party made arrangement for towing the vehicle concerned from Nikil Taj to the workshop of the 2^nd opposite party, and that the 2^nd opposite party had carried out the repair and maintenance work of the vehicle concerned promptly without delay and the vehicle was ready for delivering during the first week of April 2003, but complainant wanted the vehicle to be delivered without effecting the payment of repaired charges on the ground of pending litigation between complainant and 1^st opposite party in O.P.98/2002. On remittance of the repair work complainant took delivery of the vehicle unconditionally. It is further submitted by the 2^nd opposite party that since the vehicle was repaired at the workshop of the 2^nd opposite party at Kollam, this Forum lacks jurisdiction to entertain this complaint. Hence 2^nd opposite party prayed for dismissal of the complaint.

The points that arise for consideration in O.P.98/2002 are:

1. Whether the Maruti Diesel Model Zen Motor Car is having manufacturing defect?

2. Whether the defects in the vehicle have been developed within the period of warranty?

3. Whether the complainant is entitled for refund of the purchase price of the vehicle?

4. Other reliefs and costs?

The points that arise for consideration in O.P. 191/2003 are:

1. Whether the said vehicle had developed major engine trouble on 11/2/2003, due to manufacturing defect?

2. Whether the complainant is entitled to get the vehicle repaired at the cost of opposite party?

3. Other reliefs and costs?

In support of the first complaint (O.P. 98/2002), complainant has filed affidavit and Exts.P1 to P15 and Ext.C1 were marked. In rebuttal, 2^nd opposite party has filed affidavit and Exts. D1 & D2 were marked.

In support of the second complaint (O.P. 191/2003), complainant has filed affidavit and Exts. P1 to P19 were marked. In rebuttal, 1^st opposite party has filed affidavit. Opposite parties did not file any documents.

Points (i) to (iv) in O.P. 98/2002: It has been the case of the complainant that complainant had purchased a Maruti Diesel Zen Motor Car manufactured by the 1^st opposite party, Maruti Udyog Ltd., from the 2^nd opposite party, Indus Motor Company Ltd for Rs.4,44,629/- on 15/9/1999, on assurance of opposite parties that the car is of superior quality and excellance in performance, that vehicle is of very poor performance and defective in many respects and that the structural components of the vehicle are of low quality and from the very inception of the functioning the vehicle has been unsatisfactory. Complainant alleges further that on issuance of notice dated 26/10/1999 to 1^st opposite party, complainant was directed to entrust the vehicle to the 2^nd opposite party and accordingly 2^nd opposite party checked the vehicle and found the complaints were genuine. Complainant alleges further that on 4/2/2000 the said vehicle met with an accident because of poor quality of its components and functioning and of manufacturing defect of the vehicle. It has also been the case of the complainant that even after repeated repairs and replacement of various components; the functioning of the vehicle is not satisfactory and defects still persist. Submission by the complainant is that though the pumping system was replaced by the 2^nd opposite party the defect could not be rectified. Further, it is submitted that the mounting and dismounting of major components led to subsequent troubles. There is leakage from the coolant, water pump problem, A/c Gas leakage, Radiator leakage, low engine pulling capacity and very high engine sound. It is further alleged that complainant had spent about Rs.20,000/- for repair and replacement of various components of the vehicle. 1^st opposite party denied the allegation and remarked that the vehicle in question met with an accident not due to defects, but due to the driving error of the complainant. 2^nd opposite party denies the allegation in the complaint and submission by the 2^nd opposite party is that the said vehicle was stolen from the residence of the complainant on 6/8/2000, a crime was registered by the Attingal Police and later it was recovered by the Police and from the date of theft till recovery, the vehicle was under the custody of the criminals and they were using the vehicle in such a manner as that would affect the condition of the vehicle. It is submitted that 2^nd opposite party inspected the vehicle and found that the vehicle did not suffer from any defect and that the complainant had approached the 2^nd opposite party for periodical maintenance and the same was duly executed. Ext. P1 is the advocate notice dated 26/10/1999. Ext.P2 is the acknowledgement card of Ext.P1. Ext.P3 is the copy of the notice dated 10/2/2000 addressed to 1^st opposite party. In Ext.P3, Ext.P1 is referred. Ext. P4 is the acknowledgement of Ext.P3. Ext.P5 is the reply dated 5/11/1999 issued by the 1^st opposite party with reference to Ext.P1. Ext.P6 is the reply dated 17/2/2000 issued by the 1^st opposite party with reference to Ext.P3. Ext.P7 is the copy of the hire purchase schedule dated 6/10/1999 issued by the Sundaram Finance Ltd. Ext. P8 is the copy of the credit bill dated 11/7/2002 issued by the Popular Vehicles and Services Ltd to the complainant for Rs.3,382/-. Ext.P10 is the copy of the credit bill dated 4/1/2003 issued by Popular Vehicles to the complainant. Ext.P11 is the credit/cash bill dated 20/1/2003 issued by Nikhil Taj, Maruti Authorised Service Station. Ext.P12 is the copy of the job order dated 12/2/2003 issued by Popular Vehicles and Services Ltd. Ext.D1 is the copy of FIR prepared by the Attingal Police. As per Ext.D1 the vehicle in dispute was stolen from the residence of the complainant on 6/8/2000. Ext.D2 is the copy of the Motor Claim Form. It is pertinent to note that regarding the theft of the vehicle the fact is not mentioned in the complaint, while regarding the accident the fact is mentioned in the complaint.

A commission has been appointed who is an expert Engineer in Kerala Automobiles and being an opinion of an experienced man it is evidently given due importance. Ext. C1 is the commission report. 2^nd opposite party had filed objection to commission report, on 26^th March 2003, while 1^st opposite party filed objection to CR on 5^th August 2008. Complainant has never mentioned about the warranty in the complaint, nor has he furnished the warranty card.

In the versions also, there is no mention regarding the warranty period. Commissioner has not been cross examined by the opposite parties inspite of ample opportunity was given to them. Commission in his C1 report, stated that in the vehicle in dispute, the engine compartment is not adequate to accommodate the engine, which will create future service problems. For dismantling the gear box, the entire engine has to be dismantled, while dismantling the engine, the refrigerant gas of the Air conditioner to be re-fitted. Commissioner further says that the Fuel injection pump is the heart of a diesel engine and highly sophisticated equipment and any mismatch will create low pick up, high emission, power loss, low mileage etc. According to the Commissioner, this is a major manufacturing defect. Now the complaint is rectified by the dealer, by reclaiming the fuel injection pump. Commissioner further reports that the water pump/Regulator Assembly/ S/A Rectifier were found changed within a short span of the use of the vehicle. Commissioner further says that the spare parts changed/work done due to the accident during February 2000 were not considered to ascertain the defects of the vehicle in dispute. Various defects have been pointed out by the Commissioner and the findings of the commission are as follows:

1. Fuel injection pump originally fitted on the Diesel Engine was inadequate to deliver the required power to the engine. This was the major reason for low pick up. This is a design/manufacturing defect.

2. The chasis of the car in dispute is having a crack and now welded. One of the reasons for the crack is the improper design of the chasis to meet the requirements of the Diesel Engine fitted on the car.

3. Rattling sound is high – Mainly due to vibration of the Diesel Engine.

4. The Diesel Engine fitted on the vehicle is not exclusively designed for this car. Weight of the Diesel Engine is more than 75kgs compared with Petrol Engine of Maruthi Zen.

5. The car was procured on 15/9/1999. Within a short span of 3 years, the maintenance work done/spare parts replaced was on the higher side. Chasis welding, Silencer welding, steering column welding, Replacement of water pump, Regulator Assembly, Holder S/A Rectifier, Wheel cylinders, Repair of Gear box are few of them.

It is pertinent to point out that the complainant had purchased the car on 15/9/1999 while the first complaint of the vehicle in dispute is seen sent to opposite parties on 26/10/1999 as per Ext.P1, and repairs were seen done as per 3^rd free service job card No. 0013044 dated 17/12/1999 as reported by the Commission in Ext.C1. Further, it is to be noted that the car met with accident during February 2000, but according to the expert such accident need not cause design defect, or engine defect or water pump defect or gear-box trouble. There is no dispute that the engine found at the time of delivery, at the time of accident and at the time of inspection are the original one. Though opposite parties have filed objection to Commission Report, it is not seen corroborated by examining the expert. 1^st opposite party has never filed affidavit in support of their version, nor furnished any documents to controvert the pleadings in the complaint, nor taken any step to examine the expert commission. Though 2^nd opposite party has filed affidavit and objection to commission report, commissioner is not seen examined. The case in hand was remitted to this Forum by the Hon'ble Appellate Commission to pass order in accordance with law after giving opportunities to opposite parties and complainant to adduce evidence. Opposite parties did not come forward to adduce further evidence, in spite of ample opportunity was given to them.

It is submitted by the opposite parties that the vehicle has been subject to theft, the vehicle was later recovered by the Police after a few months, and that from the date of theft till recovery the vehicle was under the custody of the criminals and they were using the vehicle in such a manner as that will affect the condition of the vehicle. Further opposite parties submit that the allegation in the complaint regarding the malfunctioning of the vehicle, if any, is due to the misuse of the vehicle by these persons who are behind the theft of the vehicle. Opposite parties did not adduce any evidence to substantiate their stand that the malfunctioning of the vehicle was due to the misuse of the vehicle by the persons behind the theft of the vehicle. It is pertinent to point out that there is no case on the part of opposite parties that the thieves have replaced any part. As per Ext. C1 report, the vehicle was giving trouble even before the theft and accident.The original engine continues in the vehicle. Hence the defects pointed out by the expert in Ext.C1 are the basic defects of the vehicle. In view of the above and in the light of evidence available on records we find the vehicle is having inherent manufacturing defect and the troubles are developed within the warranty period. Evidently, complainant has used the vehicle for a long time. So at this distance of time it will not be just and proper to direct the opposite parties to replace the vehicle with a new one or refund the purchase price of the vehicle. In our view, since the vehicle had already been repaired by the complainant and complainant had been running the same for a long time, we allow the complainant to own and retain the vehicle and direct opposite parties to refund half of the purchase price of the vehicle which comes to the tune of Rs.2,24,311/-. Complainant is also entitled to get compensation from the opposite parties.

Points (i) to (iii) in O.P. 191/2003 : In this case, complainant alleges that on 11/2/2003 the above said car had a sudden brake down due to engine problem and the 2^nd opposite party had towed the vehicle to their workshop on 12/2/2003 and despite of repeated request the 2^nd opposite party detained the vehicle till 2/5/2003 at their workshop on the pretext of engine work. It is further alleged in the complaint that though the complainant had requested the 2^nd opposite party to get the repair work done at their cost, there was no response from them, finally complainant was forced to remit Rs.49,460/98 as per three consecutive bills. 1^st opposite party denies the allegation of engine trouble due to manufacturing defect. Further, 1^st opposite party says that they are not aware of the repairs alleged to have been carried out by the 2^nd opposite party and the matter is between the complainant and the 2^nd opposite party and that 1^st opposite party is not liable to answer the claim. 2^nd opposite party says that 2^nd opposite party is not a party to the transaction mentioned in paragraphs 1 to 8 of the complaint and that such narration will lead to the application of resjudicata. It is submitted by the 2^nd opposite party that as the complaint insisted for the repairs on 12/12/2003 2^nd opposite party made arrangements for towing the vehicle concerned from Nikhil Taj to the workshop of the 2^nd opposite party, that the 2^nd opposite party had carried out the repair and maintenance works of the vehicle concerned promtply, that without delay the vehicle was ready for delivering during the first week of April 2003, but complainant wanted the vehicle to be delivered without effecting payment of repaired charges on the ground of pending litigation between the complainant and the 1^st opposite party. Further, 2^nd opposite party says that upon receipt of the letter dated 21/4/2003 issued by the 2^nd opposite party, complainant took delivery of the vehicle on payment of all charges levied by the 2^nd opposite party unconditionally. Further, 2^nd opposite party says that since the vehicle was repaired at the workshop of the 2^nd opposite party at Kollam, this Forum lacks jurisdiction to try this complaint. On going through the complaint, version and Exts. P1 to P19 it is to be noted, that the reference throughout the complaint is in connection with O.P.No.98/2002, wherein the allegation of manufacturing defect had already been raised by the complainant and expert commission had already been inspected the vehicle and filed report as Ext.C1., and since this Forum had already found manufacturing defect in the said vehicle and award was granted thereupon in O.P.98/2002, further allegation of the same manufacturing defect in the subsequent complaint (in O.P. 191/2003) is devoid of bonafides. Hence this complaint has no merits, which deserves to be dismissed.

In the result, O.P. 98/2002 is allowed. Opposite parties shall jointly and severally refund a sum of Rs.2,24,311/-to the complainant. Opposite parties shall also pay a sum of Rs.10,000/- toward compensation and Rs.5,000/- as cost to the complainant. Complainant is allowed to own and retain the vehicle in dispute. The said amounts shall carry interest at the rate of 18%, if not paid within two months from the date of receipt of this order.

Whereas, O.P. 191/2003 is dismissed. Both parties shall bear and suffer their costs.

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.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of April, 2009.

G. SIVAPRASAD

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.98/2002

APPENDIX

1. Complainant's witness : NIL

II.Complainant's documents:

P1 : Copy of letter dt. 26/10/99 issued to 1^st opp. Party by the complainant.

P1(a) Postal receipt dt. 26/10/99

P2 : Postal acknowledgment card dt. 29/10/1999

P3 : Copy of letter dt. 10/02/2000 issued by complainant

P4 : Acknowledgment card

P5 : Letter dt. 5/11/1999 issued by 1^st opp. Party

P6 : " 17/02/2000

P7 : Second schedule dt. 6/10/1999

P8 : Copy of credit bill No.1431 dt. 11/07/2002 issued by 2^nd opp. Party

P9 : Copy of receipt dt. 11/7/2002

P10: Copy of credit bill No.3739 dt. 14/01/2003

P11: Copy of credit/cash bill dt. 20/01/2003

P12: Copy of Job order dt. 12/02/2003

P13: Copy of letter dt. 15/2/2003 issued by the complainant

P14: Confirmation report dt. 15/02/2003

P15: Copy of letter dt. 19/4/2003 issued by complainant

P16: Letter dated 11/4/2003 issued by 2^nd opp. Party

III. Opposite parties' witness: NIL

IV. Opposite parties' documents:

D1 : Copy of First Information Report dt. 7/8/2000 issued from the O/o the Attingal Police Station.

D2 : Copy of Motor Claim Form

V. Court Witness: NIL

VI.Court Exhibit:

C1 : Commission Report dt. 15/10/2002

O.P.No. 191/2003

APPENDIX

I. Complainant's witness: NIL

II. Complainant's documents:

P1 : Fax copy of confirmation receipt dt. 15/2/2003

P2 : Copy of letter dated 15/2/2003 issued by the complainant

P3 : Copy of reply letter dt. 11/4/2003 issued to the complainant by opp. Party

P4 : Copy of letter dt.19/4/2003 issued by complainant

P5 : Reply letter dated 21/4/2003 to the complainant

P6 : Envelope of letter addressed to the complainant

P7 : Credit bill No.105 dt. 11/4/2003

P8 : Receipt voucher No.000128 dt. 2/5/2003

P9 : Cash bill dated 2/5/2003

P10: Copy of letter dated 22/5/2003

P11: Acknowledgement card dt. 2/5/2003

P12: Copy of Commission Report dt. 15/102002

P13: Copy of order dt. 2/6/2003 in O.P. 98/2002 of the Hon'ble Consumer Disputes Redressal Forum, Tvpm.

P14: Letter dt. 10/11/1999 issued to the complainant by the 2^nd opp.party.

P15: Letter dt. 1/11/1999 issued to the complainant by 1^st opp.party

III. Opposite parties' witness: NIL

IV. Opposite parties' documents: NIL

V. Court Witness NIL

6. Court exhibit NIL

PRESIDENT