DOF.28.11.2003

DOO14.01.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 14^th    day of   January      2011

CC.411/2003

E.M.Aravindakshan,

Anju Nivas,

P.O.Chovva, Kannur 6                                    Complainant

(Rep. by Adv.K.C.Santhoshkumar)

1.M/s.Fiat India Private Ltd.,

   Off Lal Bahadur Sasthri Marg,

   Kurla,Mumbai.

2.TVS Automobiles,

   Kaloor, Cochin                                                Opposite party

  (Rep. by Adv.Shashi D Nambiar.)

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay `1,00,.000/- towards  loss sustained to the complainant and `10,000 as compensation.

          The facts of the case in  brief are as follows: The complainant purchased a  Fiat Palio  from 2^nd opposite party. The vehicle was delivered on 20.1.2003 at Kannur. On 20.4.2003 while he was traveling to his relative’s house water was seen seeping through the left side front glass beading causing wetting of seat cover and floor carpet. The complainant contacted the service engineer of the company; they have applied gums and told him that there is no chance of leakage again.  The complainant took back his vehicle from the garage at Thottada. Since there was no rain in the next 2 months thus the complainant could not make sure whether the leakage has stopped. On 10.7.2003 noticing that water seepage still persist the vehicle was given to the workshop at Thottada to cure the defect.  The vehicle was delivered on 12/7/20-03 with a promise that the defect was fully cured. But leakage was seen again on the days when the vehicle was taken out in the rain. The vehicle was again given to the official work shop on 22.7.03. The representative who was present there told that the car will be inspected by experts from Calicut and for that purpose the vehicle has tobe kept there for 3 days.  The complainant went there on 25.7.2003 and took delivery of the vehicle. On 26.7.03 enquiry was made from TVS Calicut over the telephone regarding the complaint. Since it was not raining after delivery of vehicle on 25.7.03 the complainant requested them to call after 2 days.  But there was no further enquiry from TVS, Calciut. It was seen again that the water was seeping still. Due to imperfect service of opposite party the complainant suffered loss.  The floor carpets and seat of the car was very much damaged due to the seepage of water and the complainant was forced to replace the same. Hence the complainant sent lawyer notice on 14.8.2003. It was received by TVS and they sent letter seeking some time for reply notice. Later on 23.9.2003 reply notice of TVS Kochi was received with various allegations regarding damage. Mr.Gopala Krishnan who is the sales Executive of opposite party approached the complainant on 14.10.2003 with a request to sign letter in the form of an acknowledgement of delivery of vehicles in good condition. Complainant refused to sign, he then said that the 1^st opposite party will give a reply only on receiving such an acknowledgement letter.  The complainant actually approached the 2^nd opposite party for a brand new vehicle. He made to believe that a 2003 model vehicle is being delivered as demanded by him. In fact the 2^nd opposite party manipulated all the concerned documents to make it appear that it is new vehicle. The complainant realized after wards that the vehicle was an old one branded as a 2003 model whereby compelled the complainant to pay the price of the vehicle.  The imperfect service and inactions of opposite parties together with supply of old vehicle defeated the purpose of purchasing the vehicle. The complainant could not use the vehicle properly. Since the car was totally defective complainant has sold the vehicle and he sustained a loss of an amount of one lakh. He has also suffered much mental pain and sufferings. Hence this complaint.

                    In pursuance of notice the opposite party entered appearance and filed version separately.

          The contention raised by 1^st opposite party in brief are as follows: - There is no privity of contract between the complainant and this opposite party. This opposite party denies the allegation of water seeping through the left side front glass beeding causing wetting of seat cover and floor carpet. None of the employees of the opposite party was contacted by complainant. It is understood that 2^nd opposite party attended the complaint of the vehicle as and when pointed out. This opposite party never had any chance to inspect or attend the vehicle. Keeping of the vehicle in the work shop for 3 days for inspection, expert from Calicut and taking of the vehicle by the complainant on 25.7.2003 are of   things not with in the knowledge of this opposite party. It is also not true that the alleged defect is due to manufacturing defect. The engineer of this opposite party was not given any assistance to inspect the vehicle. In spite of several requests made to the complainant, engineers of this opposite party was not given opportunity to  attend the alleged complaint at any point of time. Hence there is no question of deficiency in service on the part of this opposite party. The complainant is not entitled for any replacement of the vehicle. He has extensively used the vehicle and this is only an attempt to trying to make unlawful gain from the opposite parties.  There is no merit in the allegation that the opposite party sold an old vehicle. The complainant was not cheated in any way. Complainant is not entitled for any compensation, hence to dismiss the complaint.

          2^nd opposite party field version contending that this opposite party is an unnecessary party since the complainant has no case of deficiency in service against this opposite party. There was no seepage of water from the front glass beeding as alleged by the complainant. The complainant had brought the vehicle to the workshop on 22.7.2003 with the complaint that seepage of water still persisted. It was retained in the work shop till 24.7.2003 and carried out a thorough check up but no seepage was noticed and then the vehicle was returned to the complainant on 24.7.2003. The vehicle was taken delivery by the complainant with full satisfaction, convincing that there is no defect at all. Opposite party had made enquiry over telephone  to know whether he had any grievances with regard to the seepage. He had informed that no seepage was noticed. There after he had never approached to this opposite party with complaint of seepage of water. This opposite party rendered necessary assistance and services to the complainant as and when required. There is no merit in the allegation that this opposite party has cheated him. It is false to say that he was sold 2002 model vehicle claiming it to be 2003 model. There is no base in the allegation of the complainant. There is no deficiency in service on the part of this opposite party as alleged by the complainant. The complainant is not entitled to get any relief from this opposite party.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complaint is entitled to get any relief?

3. Relief and cost.

          The evidence consists of the oral testimony of PW1, Exts.A1 to A7 and C1

Issue Nos. 1 to 3

          Admittedly complainant purchased a Fiat Pallio car from 2^nd opposite party on 20.1.03. The main case of the complainant is that  water was seeping through the left side  front glass beeding. It was repaired but persisted the defect even after repeated repair and there by sustained a loss of one lakh when it was sold in the year 2008. Apart from alleging imperfect service and inaction of opposite party complainant also alleged that an old vehicle but branded as a 2003 model was given to complainant though ordered for brand new vehicle. Per contra 1^st opposite party contended that the  Fiat Palio  cars manufactured by opposite party enjoy high reputation in market. Opposite party never had any chance to inspect the vehicle but it was understood that the 2^nd opposite party had attended as and when necessary inspection of vehicle and taking delivery on  25.7.03 etc.  were not within the knowledge of 1st opposite party. 1^st opposite party contended that their engineers were not given a chance to inspect the vehicle in spite of repeated requests made to the complainant. Hence there is no deficiency on the part of 1^st opposite party. On enquiry it was learned that the vehicle was attended by 2^nd opposite party as and when required by the complainant. The complainant has taken delivery of the vehicle with satisfaction. Mr. Prashant Kharkanis, who was  in charge of  After Sales Service activities contacted the complainant, but did not  even allow to inspect the vehicle. In any event the alleged defect of the vehicle is minor in nature, which can be rectified without much difficulty. Complainant is trying to make unlawful gain after the extensive use of the vehicle. Complainant was given a new vehicle, 2nd opposite party contended that complainant has no case against 2^nd opposite party. The main contention of opposite party is that complainant brought his vehicle 2^nd time with the same complaint of water seeping on 11.7.03. On inspection it was found that the beeding of the left front glass has   some loose causing seepage of water and 2^nd opposite party removed the beeding and refitted the same applying proper adhesive and vehicle redelivered. It was  brought to work shop on 22.7.03 with complaint of persistent water seepage. The vehicle was retained till 24.7.03 and carried out thorough check up but found not seepage of water and hence the vehicle was returned on 24.7.03. On enquiry on 26.7.03 complainant informed that no seepage had been noticed and there after no complaint was made by the complainant. Opposite party contended further that they rendered necessary assistance and service whenever the vehicle was brought. It is also contended that it is against the facts to say that he was sold 2002 model claiming it to be  2003 model vehicle. The main point that deserves for consideration is whether or not there was alleged leakage of water for complainant’s vehicle. Complainant filed chief affidavit in tune with his pleadings. In cross examination complainant has deposed that “h­n expert  Commisisoner ]cn-tim-[n-¨n-cp-¶p. dnt¸mÀ«n dn¸-bÀ sN¿m³ ]äp¶ XI-cmdv am{X-ta-bp-ffq F¶v ]-d-ªn-«p­v” .                

Expert commissioner who has inspected the vehicle on 23.9.04 in his report Ext.C1 has stated thus; “ During my inspection  I found that leakage problem is genuine and leakage was not found  from where it comes.There is no holes or cracks on the top of the car but the water  entering the platform  may be through the front whether strip, left side roof rubber beedidng  or rear portion of the beedings.  In the view of the above finding in my opinion  that leakage problem is genuine and it can be prevented by examining  the vehicle carefully and  necessary repair  works  done”.

          The report of the expert commission makes it clear that the defect of vehicle with respect to the leakage of water is a repairable defect. In other words it is not a manufacturing defect. Complainant has not produced any other evidence to prove that the vehicle is beyond repair since it is a manufacturing defect.

          1^st opposite party specifically alleged  that Mr. Prashant Kharkanis who is in charge of After Sales  service activities of 1^st opposite party  contacted the complainant, but the complainant did not even allow him to inspect the vehicle. It is admitted by complainant/PW1 in his cross examination by adducing that “{]im´v ImÀ¡mWnsb And-bm-T. At±-ls¯ h­n ]cn-tim-[n-¡m³ k½-Xn-¨nÔ. It is true that there is no justification for not allowing him to inspect the vehicle. Since he is the representative of the manufacturer complainant is expected to allow him to inspect the vehicle so as to get the defect cured. The complainant is entitled for replacement of the vehicle only if he could prove manufacturing defect. Complainant failed to place sufficient material before the Forum to prove that the defect is a manufacturing one. Moreover opposite party was prevented from inspecting the vehicle whereby he was denied the opportunity to solve the defect of the vehicle, under such a situation deficiency in service cannot be   put up on the shoulders of 1^st opposite party until and unless there is a reasonable explanation on the part of complainant for the denial of opportunity for 1^st opposite party to inspect the vehicle.Complainant has given no explanation for this. This is a clear situation that makes 1st opposite party free from liability as a manufacturer. The fact of not allowing the representative of 1^st  opposite party to inspect the vehicle has not been mentioned in the complaint. 1^st opposite party raised the contention as part of pleadings. But complainant kept silent in his chief affidavit about the same. But complainant admitted in his cross examination that he did not allow the representative to inspect the vehicle hence it is clear that the attempt on the part of 1^st opposite party to inspect the vehicle has been proved together with the act of preventing him from inspection by the complainant. Hence it is not possible to find deficiency in service on the part of 1^st opposite party.

          2^nd opposite party contended that on enquiry on 26.7.03 after delivery of repaired vehicle complainant informed that no seepage had been noticed and there after no complaint was made. Complainant stated that on 26.7.03 enquiry was made from TVS, Calicut over telephone regarding the complaint. Since it was not raining, after delivery of the vehicle on 25.7.03 the complainant requested them to call after 2 days,. It can be seen that no complaint has been raised thereafter by the complainant before sending the lawyer notice. In the light of enquiry of 2^nd opposite party with respect to the result of repair they had been carried out in the ordinary course,  complainant would have reported if he found any defect there after. After all,  it is come in evidence that the defect occurred to the vehicle of the complainant was one repairable. Opposite party has also offered in his version that if the complainant makes available  his vehicle at the work shop of 2^nd opposite party he will look into the grievance of the complainant and do the needful if any defect is still noticed to be existed in the vehicle. In Ext.A7 notice 2^nd opposite party makes it clear that if the complainant brings his vehicle to the work shop of 2^nd opposite party at Kannur they are willing to look into the grievance of the complainant. This is of course a positive approach on the side of the opposite party. Non utilization of this offer cannot be considered as a wise decision.

          Moreover opposite party contended that the complainant extensively used the vehicle and now  he is trying to make unlawful gain from the opposite parties. Complainant has not denied the fact of extensive use of his vehicle. The vehicle was purchased in the year 2003 and sold it in the year 2008; it reveals the vehicle had been in use for 5 years.         So naturally it can be very well assumed that the vehicle had been used extensively. How far the vehicle has been used is a mater exclusively with in the knowledge of complainant. Complainant has not mentioned even how many kilometers it has run during the period the vehicle was in his possession. Complainant alleged that it is an old vehicle but branded 2003 model where by compelled the complainant to pay the price of a new vehicle. But complainant has not produced any evidence to prove this allegation. Ext.C1 does not speak of anything with respect to the model, it can be seen that the person who was complaining had arranged the vehicle for inspection. But this fact was not pointed out to commission at the time of inspection as to get it reported. Hence it cannot be considered that the complainant has raised this allegation with enough seriousness. If it is true it could have easily prove beyond doubt. If it is proved that alone is sufficient to establish the genuinity of   complainant’s case attributing deficiency of service and unfair trade practice on the part of opposite parties. Except raising the allegation complainant has not taken any necessary steps to prove this aspect though it is a serious allegation.

          Considering the materials on record together with the oral evidence adduced by parties we are of opinion that the complainant has miserably failed to establish his case and hence issues 1 to 3 are found against complainant.

          In the result, complaint is dismissed. No order as to costs.    

                      Sd/-                     Sd/-                   Sd/-

                   President              Member                Member

APPENDIX

Exhibits for the complainant

A1.Copy of invoice issued by 2^nd OP

A2.Copy of sale certificate issued by OP

A3.Copy pf certificate cum policy schedule issued Oriental Insurance.

A4. & 5.Copy of the lawyer notice sent to OP and AD cards

A6 & 7.Reply notice sent by OPs

 Exhibits for the opposite parties: Nil

Exhibits for the court

C1.Commisison report.

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties: Nil

                                                /forwarded by order/

                                                Senior Superintendent

Consumer Disputes Redressal Forum, Kannur