Andhra Pradesh

Chittoor-II at triputi

CC/36/2017

R.Vijayalakshmi, W/o K.Kranthi Chaitanya - Complainant(s)

Versus

M/S Aruna Motors Private Limited, Rep. by its Manager, - Opp.Party(s)

Soora Venkata Sainath

28 Mar 2019

ORDER

Filing Date: 28.07.2017

Order Date:28.03.2019

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

THURSDAY THE TWENTY EIGHTH DAY OF MARCH, TWO THOUSAND AND NINTEEN

 

 

 

C.C.No.36/2017

 

 

Between

 

 

R.Vijayalakshmi,

W/o. K.Kranthi Chaitanya,

Secular, aged about 46 years,

Advocate,

D.No.24, Reservoir Colony,

Tirupati,

Chittoor District,

Andhra Pradesh.                                                                                           … Complainant.

 

And

 

 

1.         M/s. Aruna Motors Private Limited,

            Rep. by its Manager,

            Authorised Dealer of Renault India Private Ltd.,

            D.No.19-3-5/1, Renigunta Road,

            Tirupati – 517 501.

 

 

2.         The General Manager,

            Renault India Private Limited,

            4^th Floor, ASV Ramana Towers,

            37 & 38, Venkatnarayana Road,

            T.Nagar,

            Chennai – 600 017,

            Tamilnadu State.                                                                       …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 13.03.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.Soora Venkata Sai Nath, counsel for complainant, and Sri.K.Ajaykumar, counsel for opposite party No.1, and Sri.C.Poorna Chand, counsel for opposite party No.2,  and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12 of C.P.Act 1986, praying for direction to the opposite parties, to replace new car in lieu of defective car i.e. Renault Scala bearing registration No.AP-03-BD-7166 (Diesel Variant) sold to the complainant or in the alternative directing the opposite parties to pay 80% invoice price of the said car, and to pay an amount of Rs.2,00,000/- for undergoing mental agony due to deficiency in service, and also to pay costs of the complaint.    

            2.  The complaint allegations are as follows:- The complainant purchased Renault Scala (VXI, DCI Rxz BS IV) from opposite party No.1, who is authorized dealer of opposite party No.2, at Tirupati on 31.07.2013. The vehicle is bearing Chassis No.MEEAHBA41CA002187, Engine No.K9KE424E023223, and the registration number of the vehicle is AP-03-BD-7166. The said vehicle covers 2+2 years (total four years) of warranty from the date of purchase. As per the Certificate of Registration, the said motor car shall meet the standards of “Bharath Stage IV” emission norms. But she noticed fumes of Carbon Dioxide from the exhaust pipe of the car since long time and the same was brought to the notice of opposite party No.1, who regularly undertook service of the vehicle, as authorized service provider to the vehicle, which was sold on behalf of opposite party No.2, who is the manufacturer of the motor car. Inspite of repeated reminders by the complainant, opposite party No.1 has not taken corrective measures to solve the harmful and heavy emissions from the vehicle, contrary to quality assurance by the manufacturer - opposite party No.2, and as per the norms stipulated by law. The car was given for routine service on 14.03.2017 with complaint regarding carbon dioxide emissions, but the problem was not solved. She got tested her car on 05.05.2017 with an independent pollution checking agent, who is an authorized agent of R.T.A, and the vehicle had failed to fulfill the norms. Hence, rejected Pollution Certificate was issued by the authorized agent. There are scars found in the exhaust pipe due to harmful emission of carbon dioxide. Opposite party No.1 made the complainant believe that the car in question is free from any mechanical defect and induced her to purchase the same. But it is apparent that opposite party No.1 sold a defective car to the complainant and cheated her. The act of opposite parties amounts to deficiency in service and unfair trade practice and the complainant sustained financial loss due to drop in mileage. She was constrained to issue legal notice dt:18.05.2017 to the opposite parties. But inspite of acknowledging the same, they did not take any action to rectify the defect. Hence, the complaint.    

            3.  Separate written versions are filed by opposite parties 1 and 2.

            4.  Opposite party No.1 contended as follows – At the outset complaint allegations are denied. The specific denial is with regard to paras. 1, 2, 3, 4, 5 and 6 of the complaint. The complainant is called upon to prove the allegations made in the above said paras. The complainant failed to comply the warranty conditions. The vehicle is on par with BS-4 emission norms on the date of purchase. The complainant is bound to attend regular service with the authorized service provider from the date of sale. There is no complaint regarding emission of fumes from the exhaust pipe as alleged by the complainant. After a long gap, complainant produced the vehicle for service and did not followed conditions of the warranty. The complainant never informed opposite party No.1 regarding failure of pollution test of the vehicle at any point of time. The vehicle is free from all mechanical defects and so not defective one. When the notice was issued, staff of the opposite party No.1 attended and requested the complainant to produce the vehicle for service, but the complainant did not do so. The vehicle was tested for emission test before starting the diagnosis on 14.10.2017 and it is found HSU % is 45.93. Again the vehicle was serviced by changing of oil filters, cleaning of injectors etc., and in the evening second time emission test was conducted and it is found that HSU % is 38.48, which is within the standards prescribed under CMV Rules 1989. The vehicle was kept for observation till 18.10.2017 and handed-over to the complainant under due acknowledgement. Again the complainant brought the vehicle for general service after running 70,000 kms., and it was observed that there is no complaint of any black smoke. The emission will arise if the filters and inflaters are not changed once in a year. As per the job card, the vehicle was not placed for general service at 30,000 kms. Similarly, the vehicle was not placed for service at 50,000 kms. This shows that the complainant is irregular in placing the vehicle for general service as per the norms required. Generally for every 10,000 kms., the vehicle owner has to place the vehicle for service. Opposite party No.1 is only a dealer and not a manufacturer and if at all any defect is there, opposite party No.1 is not liable. Having availed the service of opposite party No.1, complainant, though agreed to withdraw the complaint initially did not do so. There is no deficiency in service on the part of opposite party No.1 in rendering service to the complainant. The complaint is barred by limitation as the date of purchase of the vehicle is 2013 and the complaint has been filed in the year 2017 alleging mechanical defect. This Forum has no jurisdiction to entertain the claim. The complainant has no right to claim sale price or replacing of vehicle or any compensation. Complaint is therefore devoid of merits and liable to be dismissed.   

            5.  Opposite party No.2 contended as follows – The complaint is false, malicious, vexatious and mere abuse of process of law. The claims made in the complaint are inconsistent with the material facts and are made with ulterior motive to mislead the Forum. There is no deficiency of service on the part of opposite party No.2. All the averments made by the complainant are based on conjectures and surmises without any truth in it. The complaint is liable to be dismissed for want of cause of action. Opposite party No.2 is a reputed company registered under Companies Act 1956 and it is not a necessary or proper party to the present dispute. Opposite party No.2 has stupendous track record of sustainable growth, customer satisfaction and continued innovation. Opposite party No.2 is marketing vehicles of Renault Brand and sells vehicles to its authorized dealers. Opposite party No.2 has no role or control over the dealers and sale of the vehicles by such dealers to any prospective buyer. In the instant case, opposite party No.1 is the authorized dealer of opposite party No.2, but the relationship is not that of ‘Principal to Agent’ but it is ‘Principal to Principal’ basis. Opposite party No.2 is not involved in day to day workings of opposite party No.1. They are different entities and carry their respective business dealings without each other’s interference. Opposite party No.2 is not aware of any dealings that would have taken place between the complainant and opposite party No.1. Hence, opposite party No.2 cannot be held liable for the acts of omissions on the part of opposite party No.1, if any. Opposite party No.2, in its written version,  placed reliance on the  following decisions reported in (i). III (2015) CPJ 16 (NC) between Maruti Suzuki India Limited vs. Vijayan v.Anand and Ors., (ii). R.P.No.674-677/2004 between Maruti Udyog Limited vs. Nagender Prasad Sinha and Ors. LNIND 2009 NCDRC 64, and (iii). First Appeal No.100 of 2009 Mercedes Benz India Pvt. Ltd. (Formerly known as Diamler Chrysler India Ltd.) & Anr. vs. Intercard (India) Ltd. LNIND 2013 NCDRC 482, to support its contention that the relationship of opposite party No.2 and opposite party No.1 is that of principal to principal basis. Opposite party No.2 has been wrongly impleaded as party to the present dispute. Opposite party No.2 placed reliance on the decision reported in AIR 1928 Cal 518 - Krishna Lal vs. Promila Bala to contend that “a contract cannot confer rights or impose obligations under it on any person except the parties to it.  A third person cannot be entitled to demand performance of the contract”. In another decision reported in II (1994) CPJ 21 (SC) – Indian Oil Corporation vs. Consumer Protection Council, Kerala, facts show that  complainant primarily alleged deficiency in service on the part of authorized dealer, but failed to prove that the subject vehicle is suffering from any inherent manufacturing defect. Opposite party No.2 placed reliance on (III) (2010) CPJ 130 (NC) between Sushila Automobiles Pvt. Ltd. vs. Dr.Birendra Narain Prasad & Ors with regard to replacement of the vehicle or refund of the vehicle cost. The facts of the case show that the complainant failed to get expert opinion with regard to mechanical defect of the subject vehicle. In the absence of such report, it cannot be said that subject vehicle is having mechanical defect. Opposite party No.2 also placed reliance on  AIR 2011 SC 523 between C.N.Ananthram vs. Fiat India Ltd., in which it is held that “a defect which does not make the vehicle incapable of operation and can be rectified by replacing the said component, cannot be termed as a manufacturing defect”. It is submitted that manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective part could be replaced under warranty.

            6.  The complainant has been provided with best available services by the dealer, and all the concerns of the complainant pertaining to the subject vehicle were also resolved whenever the vehicle has come for servicing. The details of servicing done in the vehicle is given below

Work Date	Vehicle reported History	Work carried out by Dealer
18.09.2013	2033 kms – Periodic Maintenance. No black smoke complaint.	First free service.
08.02.2014	10193 kms – Periodic Maintenance. No black smoke complaint	Second free service done.
28.08.2014	19831 kms – Periodic Maintenance  and black smoke	Checked all filters condition and replaced as per the service norms. After periodic maintenance, problem resolved.
06.10.2014	22379 kms – Black smoke, Remote battery not working.	Found the diesel quality not to be good and fuel tank cleaning done. After cleaning road test was done, problem got resolved.
14.02.2015	28193 kms – Body and paint work. No black smoke complaint	front & rear bumper replaced.
Default	30000 kms -  PERIODIC MAINTENANCE NOT DONE. VEHICLE NOT REPORTED	DEFAULT ON PART OF THE COMPLAINANT
25.12.2015	40641 kms – Periodic Maintenance, Black smoke	Replaced all the filters and clean the injectors. Additionally, wind shield glass replaced. After Periodic maintenance, problem got resolved.
02.06.2016	47190 kms – Brake check, front bumper check	Brake pads replaced, front bumper adjustment done.
Default	50000 kms – PERIODIC MAINTENANCE NOT DONE VEHICLE NOT REPORTED	DEFAULT ON PART OF THE COMPLAINANT
14.03.2017	61364 kms – Periodic Maintenance, Black smoke	Replace all the filters and EGR valve cleaning done. After periodic maintenance, problem got resolved.
11.04.2017	62725 kms – Black smoke	Checked all sensors Operations. Observed no abnormality.
22.04.2017	63514 kms – Body work. No Black Smoke Complaint.	Fender Liner replaced.

           

            7.  The complainant had not reported about emission of black smoke from the vehicle at any point of time, when the vehicle was brought for service. The contents in paras. 3 and 4 of the complaint are baseless, misconceived and hence denied. The dealer had got checked the emission levels of the subject vehicle from an approved agency on 14.10.2017 i.e. before and after repairs and found that the subject vehicle has passed the emission test vide Pollution Certificate dt:14.10.2017. Hence, it is prayed to dismiss the complaint.

            8.  During the pendency of the case, I.A.No.16/2018 was filed by the complainant.  This petition was allowed by this Forum directing the petitioner or opposite party No.1, whoever is in custody of the vehicle, to produce the same before the Principal, S.V.U.Engineering College, Tirupati, on or before 10.07.2018, and on such production, the Principal, S.V.U.Engineering College, directed to nominate expert in Mechanical Engineering Department, to examine the vehicle in question. Accordingly, the expert had filed his report after examining the vehicle, which is marked as Ex.C1. Opposite party No.1 had filed objections to this report.

            9.  Complainant filed chief evidence affidavit as P.W.1 and got marked Exs.A1 to A9. On behalf of opposite party No.1, one Mr.P.Sudeep Kumar, filed chief evidence affidavit as R.W.1 and got marked Exs.B1 to B5. On behalf of opposite party No.2, Mr.AbhaTiwari, filed chief evidence affidavit.

            10.  The point for consideration is whether there is deficiency in service on the part of opposite parties 1 and 2, and whether there is manufacturing defect in the subject vehicle, as alleged by the complainant? If so, to what extent the complainant is entitled for the reliefs sought in the complaint?

            11.  Point:-  The complainant counsel argued that since the subject vehicle was manufactured in the year 2012, it has to meet the standards of Bharath Stage IV (BS-IV) emission norms, but the said car emitting high volume of carbon-dioxide through exhaust pipe, and when the same was brought to the notice of opposite party No.1, who regularly undertook the service of the said vehicle, they could not rectify the defect and the same is reflected in the vehicle history produced by opposite party No.2. It is further argued that the complainant got checked the vehicle for pollution certificate and the same was rejected, which shows that high volume of black smoke is coming from the vehicle, causing pollution. Ex.A2 is Pollution Certificate issued on 05.07.2017. The fact that vehicle was purchased by the complainant is proved by Ex.A1, which is Certificate of Registration of the vehicle. During the pendency of the case, complainant sought for appointment of expert mechanical engineer to examine the vehicle with regard to defect in the engine, as opposite party No.2 in their written version contended that in the absence of expert evidence, it cannot be said that there is manufacturing defect in the vehicle.

12.  Opposite party No.2 filed its written version referring several decisions in support of its contention that without expert evidence, it is not possible to hold that there is manufacturing defect in the vehicle. Further, regarding liability of opposite party No.2 also, it is argued by the counsel for opposite party No.2 that, it is the authorized dealer, who is responsible for any lapses in the service of the vehicle.  The counsel for opposite party No.2 relied upon the following decisions - In III (2015) CPJ 16 (NC) between Maruti Suzuki India Limited vs. Vijayan v.Anand and Ors., the NCDRC held that relationship between the petitioner and opposite parties 2 and 3 (authorized dealers) was on principal to principal basis. Hence, petitioner was not liable to give any compensation for the fault of the dealer. In R.P.No.674-677/2004 between Maruti Udyog Limited vs. Nagender Prasad Sinha and Ors. Reported in LNIND 2009 NCDRC 64, the Hon’ble National Commission held that “… keeping in view the said limits of authority, the relationship between the Maruti Udyog Ltd. and the dealer is on the basis of principal to principal and as such the Maruti Udyog Ltd. would not be liable for the acts of the dealer…”.  In First Appeal No.100 of 2009 between Mercedes Benz India Pvt. Ltd. (Formerly known as Diamler Chrysler India Ltd.) & Anr. vs. Intercard (India) Ltd. reported in LNIND 2013 NCDRC 482, the Hon’ble National Commission has observed that “… We find substance in the submission made by the Ld. Counsel for the Manufacturer that the relationship between the manufacture and the dealer was on principle to principle basis…”. In MC Chacko vs. State Bank of Travancore AIR SC 504, the Hon’ble Supreme Court held as follows “… it is settle law that a person not a party to a contract cannot subject to certain well recognized exceptions, enforce the terms of the contract: the recognized exceptions are that beneficiaries under the terms of the contract or where the contract is a part of the family arrangement may enforce the convenant…”. In Indian Oil Corporation vs. Consumer Protection Council, Kerala II (1994) CPJ 21 (SC), the Hon’ble Supreme Court held that unless there is privity of contract between the petitioner and the consumer, no liability could be inflicted upon the petitioner. Further opposite party No.2 relied upon a decision reported in (III) (2010) CPJ 130 (NC) between Sushila Automobiles Pvt. Ltd. vs. Dr.Birendra Narain Prasad and Ors., wherein the Hon’ble National Commission held that “to establish a claim for the total replacement or claim of total refund, complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile / mechanical engineer that the vehicle suffered from inherent manufacturing defect”. In AIR 2011 SC 523 between C.N.Ananthram vs. Fiat India Ltd. and ors., the Hon’ble Supreme Court held that “a defect which does not make the vehicle incapable of operation and can be rectified by replacing the said component, cannot be termed as a manufacturing defect”. In Jose Philip Mampilli vs. Premier Automobiles Ltd and Anr. 2004 (1) CPC 438 (SC), it is held that “…Manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective part could be replaced under warranty…”                   

            13.  The complainant keeping in view of the principles laid down in certain decisions referred above, filed I.A.No.16/2018 under Section-13, Rule-4 of C.P.Act, for examination of the subject vehicle by Mechanical Engineer. Accordingly, the petition was allowed and the vehicle was examined by the experts in the field of automobile, and they filed report in the Forum, which is marked as Ex.C1. The opposite party No.1 has raised objections for marking the document on the ground that no notice was given to them before examining the vehicle. But on perusal of Ex.C1, it is clear that notice was given to opposite parties also before fixing the date for examining the subject vehicle on 14.08.2018. The Principal, S.V.U. College of Engineering, nominated G.Bhanodhaya Reddy and V.Diwakar Reddy, who are concerned with Mechanical Department, to examine the subject vehicle, and accordingly they submitted the report as follows “We have preliminarily examined the vehicle. We tested the vehicle visually for the smoke intensity by pressing the accelerator pedal repeatedly and found that the smoke released is very heavy and dark. The said quantum of smoke is beyond normality. We have taken a video as well as photos while we were examining the vehicle. The video is herewith enclosed in the form of a CD. Then we have tried to examine the vehicle to check the level of pollutants and smoke intensity using exhaust gas analyzer and smoke meter available in our laboratory but both the instruments were not in proper condition and could not function properly. Later we have taken the vehicle to the pollution check up vehicle approved by RTA. But the said car failed in getting pollution under control certificate, as the smoke intensity and pollutants were too high”. As per the report, the vehicle was examined on 14.08.2018. It is therefore clear that by that date, the black smoke problem of the vehicle was not resolved.

            14.  Ex.B4 dt:14.10.2017 is the Computerized Pollution Under Control Certificate, authorized by Transport Department, Government of Andhra Pradesh. On the basis of this document, it was argued that the subject vehicle was checked before the service and after the service, and Ex.B4 shows that the vehicle is free from pollution, and accordingly Ex.B4 was issued. It is the contention of opposite party No.1 counsel that Ex.B4 falsify the argument of complainant counsel that heavy black smoke is coming out from the exhaust pipe of the subject vehicle, which is causing pollution. But Ex.C1 shows that when the subject vehicle was examined on 14.08.2018, and the accelerator pedal was pressed repeatedly, it was found that heavy and dark smoke released and the quantum of smoke is beyond normality. Later the experts have taken the vehicle to the pollution check-up vehicle approved by RTA, but the subject vehicle failed in getting pollution under control certificate, as the smoke intensity and pollutants were too high. Ex.C1 is dated subsequent to Ex.B4. So, in view of Ex.C1, Ex.B4 loses its significance and hence contention of opposite party No.1 cannot be accepted in this regard. Ex.B1 is letter addressed by opposite party No.1 to the complainant. This letter is in response to the complaint given by the complainant with regard to the problem of emission of black smoke from the exhaust pump i.e. silencer of the subject vehicle. Ex.B2 is letter addressed by the complainant to the Manager of opposite party No.1 stating that they had already filed a Consumer Case before the District Consumer Forum, Tirupati. Ex.B3 is Computerized Pollution Under Control Certificate, authorized by Transport Department, Govt. of A.P. Ex.A3 are the photos showing the car with black smoke. Ex.A4 is legal notice dt:18.05.2017 issued by the complainant to opposite parties 1 and 2 alleging that there is emission of heavy black smoke from the exhaust pipe of the subject vehicle and failed to meet the stipulated emissions prescribed by BS-III norms. Further it is alleged that opposite parties 1 and 2 are guilt of deliberately and dishonestly inducing the complainant to purchase the defective vehicle and causing mental agony and causing financial loss to her due to manufacturing defect of the vehicle. Ex.A5 is acknowledgement of opposite party No.2. Ex.A6 is track consignment showing that notice was delivered on 20.05.2017 to opposite party No.1. Ex.A7 vehicle inventory shows that black smoke is coming from the silencer. Ex.A8 is invoice raised by opposite party No.1 dt:14.03.2017. Ex.A9 is extended warranty registration. The contention of complainant is that vehicle history enclosed to Ex.B5 Dealership Agreement would clearly show that on 28.08.2014 when the vehicle was given for service at 19831 kms, there was a complaint with regard to black smoke. Again on 06.10.2014 when the vehicle was at the reading at 22379 kms, there was a complaint with regard to black smoke, and again on 24.12.2015 when the vehicle reading was at 40641 kms, there was a complaint with regard to black smoke, and again on 14.03.2017 when the vehicle reading was at 61364 kms, there was a complaint of black smoke and again on 11.04.2017 when the vehicle reading was at 62725 kms, there was a complaint with regard to black smoke. Though all the filters were replaced, and E.G.R. volve and injectors were cleaned, black smoke was not arrested and the problem was not rectified by opposite party No.1 through his service. The vehicle history coupled with expert opinion, would clearly show that something is wrong with the engine, as the black smoke problem could not be resolved.

            15.  The counsel for complainant had relied upon a decision between Giriraj Koshore Bansal vs. M/s. Nissan Motor India Pvt. Ltd., delivered on 25.03.2009, the State Commission, Delhi, held as follows – “ The inference of vehicle being defective can be drawn from various job cards. Whenever a consumer goes for a brand new vehicle instead of purchasing a second and third hand vehicle, he does so to avoid any hardship or inconvenience that a second hand or third hand vehicle gives and the minimum expectation  of the consumer who goes for the brand new vehicle is that it will not give trouble for two-three years or so and if he is taking the vehicle every two or three days or once or twice a month he does so at the cost of his precious time or business loss or financial loss etc, and at the cost of emotional suffering also. In the instant case defect of the engine was of such a nature that inspite of repairing it on three-four occasions the defect could not be removed and the complainant was forced to file the instant complaint before this Commission seeking redressal of his grievance. The vehicle was purchased on 16.08.2007 and was taken for repairs for the first time on 20.10.2007 when it started emitting heavy smoke from the engine area and within a short span of four months the vehicle was taken for repairs four times. Engine is the heart and soul of the vehicle and if any defect develops so intermittently and so fast after extensive repairs the vehicle has to be declared as suffering from manufacturing defect. The amount of mental agony and harassment, physical discomfort and financial loss a consumer suffers due to such frequent breakdown of engine of the vehicle on the road or on the highway is unimaginable and unfathomable. Inspite of having the vehicle retained several days for major repairs of the engine, the vehicle remained defective and non-usable. In our view it was not a good gesture in offering the replacement of the engine of the vehicle but it was due to highly defective engine that this offer was made by the opposite party. The engine has to be imported from Japan which was again a lengthy process. It is further held that ‘thus in our view the safest and feasible course is to direct the opposite party to refund the cost of the vehicle. But since the vehicle has already run 27,000 kms and keeping in view the vehicle taken for repairs 3-4 occasions and other financial loss and mental agony and harassment suffered by the complainant, in our view, by directing the opposite party to refund the entire cost of the vehicle which shall include compensation besides Rs.20,000/- for cost of litigation would meet the ends of justice”. The complainant relied upon another decision of the State Commission, Chennai, between the Chairman, Maruthi Suzuki vs. S.Ahimsairaj, dt:11.01.2013, wherein the State Commission allowed the appeal in part and the order of the District Forum is set aside and the opposite parties are directed to replace the engine by providing a new engine of the same model and the opposite parties are directed to pay to the complainant a sum of Rs.50,000/- jointly and severally towards compensation for mental agony and stress and to pay costs of Rs.10,000/-. The complainant is directed to surrender the car to the 1^st opposite party within a month from the date of receipt of this order and the opposite parties are directed to replace the engine with a new engine of the same model and to return the car in road worthy condition within 6 (six) weeks from the date of surrender of the car by the complainant”. The complainant relied upon another decision delivered by the Hon’ble Supreme Court between Tata Engineering and Locomotive Co. Ltd., vs. Gajanan Y. Mandrekar, wherein it is held that “ According to him, the complaint was laid after 8 months from the date of the delivery, that too after the vehicle was used to cover a distance of 18000 to 18500 kms., the complaint was laid in August 1992. When the Commissioner appointed gave his report on April 10, 1993, the vehicle had covered a distance of 65000. The State Commission passed the order on September 24, 1994 by which date a further distance of more than another 25000 to 30000 kms. would have been run. Under these circumstances, proportionate deduction for use of the vehicle would have been given. We find force in the contention. It is not the case that during the said period, the vehicle was used. When the vehicle was being used with the same defects as pointed out, necessarily the purchaser is required to be compensated for not delivering the vehicle in good condition as per the warranty after deduction towards the use of the vehicle. In view of the facts and circumstances, we think that 1/3^rd of the compensation awarded by the Commission may be deducted towards the user of the vehicle for the period in question. For the rest of the amount, the order of the Commission is confirmed”.   

            16.  The complainant counsel placed reliance on the above cited decisions to contend that even if the Forum comes to the conclusion that vehicle cannot be replaced since it was put to use for 4 to 5 years, a direction may be given to the opposite parties to pay 80% of the invoice price of the said car, apart from reasonable compensation and costs of the complaint to meet the ends of justice.

            17.   On assessing the documentary evidence, written arguments and principles laid down in the citations referred above, we are of the view that there is manufacturing defect in the engine of the said car, since the problem of emission of heavy black smoke from the silencer was not rectified though the vehicle was taken for service regularly for several times. But we hold that since the vehicle was put to use for some years with the same problem, we are not inclined to direct the opposite party No.2 to replace the defective car with a new one, but instead we direct the opposite party No.2 to pay 50% of the invoice price of the car. Accordingly, the complaint is to be allowed.

            18.  In the result, complaint is partly allowed directing the opposite party No.2 to pay to complainant 50% of the invoice price of the car (original cost of the vehicle) i.e. Renault Scala bearing registration No.AP-03-BD-7166, paid by the complainant, and further to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for undergoing mental agony due to deficiency in service, and also to pay Rs.3,000/- (Rupees three thousand only) towards costs of the complaint to the complainant. On receiving the amount from opposite party No.2, as directed by this Forum, the complainant shall complete all the requisite formalities for handing-over and transfer of the vehicle in the name of opposite party No.2. Time for compliance of the order is 8 weeks, failing which the compensation amount of Rs.50,000/- shall attract interest at 9% p.a. from the date of this order, till realization.

            The complaint in so far as opposite party No.1 is concerned, it is dismissed.                            

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 28^th day of March, 2019.

 

       Sd/-                                                                                                                      Sd/-      

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

 

  PW-1: R. Vijayalakshmi (Evidence Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Mr. P. Sudeep Kumar (Evidence Affidavit filed).

RW-2: Abha Tiwari (Evidence Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original Card of CERTIFICATE OF REGISTRATION, A.P. TRANSPORT DEPARTMENT.  Regn.No.AP03BD7166. Maker’s Class: RENAULT SCALA DCI RXZ BSIV, Type of Vehicle: 4 Wheeler, Date of Registration: 18.10.2013.
	Original copy of COMPUTERIZED POLLUTION UNDER CONTROL CERTIFICATE. Date of Issue: 05.05.2017.
	CD and Photograph Submitted as a Document in Original.
	Legal Notice with regard to defective emissions-Renault Scala Car. Dt: 18.05.2017.
	Acknowledgement in Original. Dt: 22.05.2017.
	Computerized copy of Postal Track Consignment. Dt: 19.07.2017.
	Customer (Carbon copy) copy of VEHICLE INVENTORY, RENAULT TIRUPATI, Aruna Motors Private Limited, Renigunta Road, Tirupati.
	True copy of INVOICE, Aruna Motors Private Limited, Renigunta Road, Tirupati. Invoice Date: 17.03.2017.
	Original copy of EXTENDED WARRANTY REGISTRATION FORM.                                    Date of Registration: 31.07.2013.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Office copy of Letter issued in Letter Head to the Complainant from Opposite Party. Dt: 13.10.2017.
	Office copy of Letter issued to Opposite Party No.1 from Complainant. Dt: 18.10.2017.
	Original copy of COMPUTERIZED POLLUTION UNDER CONTROL CERTIFICATE bearing Serial No.994034. Dt: 14.10.2017.
	Original copy of COMPUTERIZED POLLUTION UNDER CONTROL CERTIFICATE bearing Serial No.994033. Dt: 14.10.2017.
	True copy of DEALERSHIP AGREEMENT. Dt: 21.06.2016.

 

COMMISSIONER REPORT

 

Exhibits (Ex.C)	Description of Documents
	Expert Report file by the Professors of S.V. University College of Engineering, Tirupati. Dt: 26.10.2018.

 

 

 

                                                                                                                        Sd/-        

                                                                                                                President (FAC)

    

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

 

  Copies to:-   1.  The complainant.

                        2.  The opposite parties.