<br /> COMPLAINT FILED: 27.06.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 23rd SEPTEMBER 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> COMPLAINT NO.1434/2008<br /> <br /> <br /> COMPLAINANT Dr.J.Shivaprasad,S/o Jayaramaiah,Aged 41 years,No.10, 4th Main,SBM Colony, Anand Nagar,Bangalore – 560024.Advocate – Sri.Ian LewisV/s.<br /> OPPOSITE PARTIES 1. M/s. Cauvery Motors Private Limited,Survey No.13, 11th KM,Kanakapura Road,Bangalore – 560062.Represented by itsManaging Director.Advocate – Sri.S.V.Srinivas.2. M/s. Ford India Private Limited.,Block – 1B, 1st Floor,RMZ Millenia Business Park,143, Dr.MGR Road,North Veeranam Salai,Perungudi,Chennai – 600 096.Represented by itsManaging Director.Advocate – Dua Associates.<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to replace the defective Car KA-03-MF-4581 with a brand new defect free vehicle or refund the cost of the Car with interest and pay a compensation and damages of Rs.7,50,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant being lured away with the Ford Fiesta automobile Car thought of purchasing the same. In that regard he approached OP.1 and purchased the Car for a total cost of Rs.5,69,000/- on 30.05.2006, it bears the No.KA-03-MF-4581. Unfortunately complainant is not a position to utilize the proper service of the Car, because of the inherent manufacturing defect in the said Car. The said vehicle began to malfunction every now and then. There are so many defects with regard to mileage, low pickup, horn problem, clutch defect etc. All these complaints were brought to the notice of the OP within warranty period. Complainant was made to take his vehicle for the repairs not once but for 9 to 10 times in a year or two. Complainant being the medical practitioner most of the time the said Car was not available at his service because of its defects. Thus complainant felt the unfair trade practice and deficiency in service on the part of the OP. Though he invested his hard earned money OP failed to supply him defect free vehicle. Due to the hostile attitude of the OP, complainant is forced to face the mental agony and financial loss. His repeated requests and demands made to OP either to replace or refund the cost of the Car went in futile. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, both OP.1 & 2 filed their respective version. The defence set out by both the OP’s is identical and similar. It is contended by the OP that the said Car is purchased by the complainant for commercial purpose. Hence he can’t claim himself as a ‘consumer’. As and when vehicle was brought for free service with certain complaints, it was promptly attended. Not only that as a good gesture some of the spare parts were replaced free of cost. With all that complainant has made some false and frivolous allegations. Within a span of two years complainant run the said Car for more than 39000 kms. If there is any inherent manufacturing defect in the said Car as alleged by the complainant, complainant would not have extensively used the said Car to complete nearly 39000 kms journey. Though OP attended to all the defects and kept ready the vehicle for delivery, complainant failed to take the same. Thereby OP is obliged to cause the notice to the complainant claming parking fees. As a counter blast this false and frivolous complaint is filed, which is devoid of merits. Complainant is not entitled either of the relief. There is no deficiency in service or unfair trade practice on the part of the OP. Under the circumstances, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced their documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant being lured away with the modernized Car and its performance namely Ford Fiesta manufactured by the OP.2 thought of purchasing the same for his personal use as a medical practitioner. The fact that he purchased the said Car from OP.1 showroom and authorized dealer on 30.05.2006 for a total cost of Rs.5,69,000-00 is not at dispute. The said Car bears No.KA-03-MF-4581.<br /> <br /> 7. Now it is the grievance of the complainant that within a span of a week or two he started experiencing one or the other defect in the said vehicle. The said vehicle began to malfunction every now and then. There were problems with the low mileage, horn, low pick up, clutch defect, leaking in wiper fluid tank, abnormal sound, Hydraulic system having been failed, clutch shuddering, knocking sound, miss-alignment etc. As and when complainant faced the problems, he took his vehicle to OP and made complaints. OP attended to the repairs but unable to detect the defect and cure the same.<br /> <br /> 8. Of course the fact that the said defects were pointed out during the warranty period is not at dispute and on some occasions OP replaced some spare parts free of cost also. The said vehicle was taken for the free service and other services as contemplated periodically but every time there is one or the other problem with the said vehicle. The said vehicle ceased in the middle of the road. When complainant and his family members are traveling. It was to be toed to OP.1 garage. The documents like repair order and job cards produced in this case goes to show that complainant is made to take the said vehicle at least for 10 times to OP.1 on one or the other complaints and defects. This speaks to the mechanical conditions of the said vehicle.<br /> <br /> 9. We have also gone through the vehicle repair history produced by the complainant. The said history also speaks to several complaints including engine rough noise, horn defect, meter reading erratic, slow pick up, mileage not as per the brochure, unbearable noise inside the vehicle, engine unnecessary got heated, problem with a dash board, indicator, wiper tank, clutch system, starting problem, radiator problem so on and so forth. The repair history itself discloses that none of the parts of the vehicle are perfect.<br /> <br /> 10. Due to the said defects complainant was compelled take his new Car to OP.1 garage very frequently that is evident from the job cards. The said Car being a new one is bound to be mechanically perfect but having gone through the documents and records produced there are defects with so many parts of the vehicle. It is less said the better. We are satisfied that there is an inherent manufacturing defect with the said vehicle. <br /> <br /> 11. The evidence of the complainant finds full corroboration with the entries made in the documents referred to above. The vehicle appears to be defective right from the date of purchase at least within warranty period. On the close scrutiny of the version and the evidence of the OP they have not seriously disputed the defect pointed out by the complainant not on one occasion with regard to one part but on many occasions.<br /> <br /> 12. The contention of the OP is that as and when complainant brought the said vehicle with certain complaints they attended to it and they have replaced the spare parts and the vehicle was kept ready for delivery. Complainant drove the said vehicle for more than 35000 to 39000 kms in a span of two years. Under such circumstances there cannot be any defect. In our view unfortunately complainant is made to take risk in running the said vehicle due to dire requirement as a medical practitioner who needed it for his personal use. As and when he noticed the defect he got it repaired and started using the same but result is one and the same. Hence complainant must have suffered both mental agony and financial loss that too for no fault of his.<br /> <br /> 13. Taking the said vehicle to the OP.1 garage for 10 times and keeping it for repairs at least for 2 – 3 days at a time speaks to the defects in the vehicle. OP has taken the strange defence that complainant purchased the said vehicle for commercial use. It is unfortunate. It may amounts to repetition if we say job cards, repairs history, frequent visits to the workshop proves that the vehicle could not be properly used by the complainant to his satisfaction.<br /> <br /> 14. It is further contended by the OP that they have kept ready vehicle after due repairs but complainant failed to take delivery of the same. That is why they caused the notice claming damages. This kind of defence itself speaks to their ulterior motive. When OP is unable to detect the defect and cure the same complainant being fed up with the inaction on the part of the OP and so also keeping in mind the safety of his life in driving such a defective vehicle on a public road must have thought of not to take delivery of the same. That can’t said as a sin. <br /> <br /> 15. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake just to shirk their responsibility and to save their skin out of sin. Under such circumstances complainant deserves the relief to some extent as prayed. Accordingly we answer point Nos.1 & 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to replace the defective vehicle bearing No.KA-03-MF-4581 Ford Fiesta with a brand new defect free vehicle within four weeks from the date of communication of this order. Failing in which OP is directed to refund the cost of the said vehicle for Rs.5,69,000/-. It is further ordered OP to pay compensation of Rs.15,000/- and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within four weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 23rd day of September 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> Vln* <br /> <br />