BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 21/12/2004

Date of Order : 29/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

O.P. No. 614/2004

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant had purchased a Fiat Palio car from the 2^nd opposite party on 24-05-2003, which was manufactured by the 1^st opposite party for an amount of Rs. 4,61,000/- which includes tax and insurance. The car began to show all sorts of complaints within a period of 8 months form the date of purchase. Each time, the defects were repaired but the same persisted. The car showed defects of starting problem, low cooling, battery over charging, entire rathling sound, fuel pump defect etc. within the first six months. The complainant had to take the vehicle for repairs on 01-10-2003, 05-12-2003 19-01-2004, 05-05-2004, 09-06-2004, 23-08-2004 and 23-09-2004 and for review check ups on various occasions. The complainant had to spend about Rs. 35,000/- for change and rep[airs of defective parts of the vehicle, within one and a half years of purchase of the vehicle. The opposite parties could not rectify the manufacturing defects in the complainant's car, which was occurring repeatedly. On account of all these recurring problems, the complainant was not able to use his car for personal use and family needs as the car stopped or failed to perform abruptly in the mid way. Since, the genuine complaints and claim raised by the complainant has not been attended to properly by the opposite parties. The vehicle had to be kept in the opposite parties's premises for more than one month their claim being they are awaiting spare parts. After getting the car back, the complainant found that the steppiny tyre and jacky sere missing. There was deficiency in service on the part of the opposite parties. This complaint hence.

2. The version of the 1^st opposite party :

There is no privity of contract between the complainant and the 1^st opposite party. The complainant is not a consumer as defined under Section 2 (1)(d) of the Consumer Protection Act. It is informed by the 2^nd opposite party that during the period 01-10-2003 to 02-11-2004, whenever the complainant had bought his vehicle to the workshop of the 2^nd opposite party, they had inspected the vehicle and such of those complaints noticed, being minor in nature, attended to, to the satisfaction of the complainant. There is no manufacturing defect in the vehicle as alleged by the complainant. The complainant is not entitled to get any of the reliefs, since he has already sold the vehicle and Mr. V. Radhakrishnan of Mannarkkad is in possession of the vehicle. The 1^st opposite party requests to dismiss the complaint.

3. The 2^nd opposite party as well raised the very same contentions of the 1^st opposite party.

4. At the outset, proof affidavit has been filed by the complainant and Exts. A1 to A18 have been marked on his side. Thereafter, the complaint was allowed by the Forum vide order dated 15-03-2005. Aggrieved by the said order, the 2^nd opposite party preferred appeal before the Hon'ble Kerala Consumer Disputes Redressal Commission, Thiruvananthapuram. The Hon'ble Commission allowed the appeal vide order in Appeal No. 454/2005 dated 10-06-2011and remitted the complaint to this Forum with a direction to this Forum to permit the opposite parties to contest the matter, provided the 2^nd opposite party pays Rs. 10,000/- to the complainant towards costs. The 2^nd opposite party complied with the above order. The complainant was examined as PW1. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the counsel for the parties.

5. The points that arose for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get refund of the price of the vehicle?

3. Whether the opposite parties are liable to pay compensation of Rs. 50,000/- and costs of the proceedings to the complainant?

6. Point No. i. :- Apart from the averments in the version of the opposite parties, nothing is on record to substantiate the contention of the opposite parties that the complainant is not a consumer as per the provisions of the Consumer Protection Act. The complainant squarely comes with the ambit consumer as defined in Section 2 (1)(d) of the Act. This point is found against the opposite parties.

7. Point No. ii. :- Admittedly on 28-05-2003, the complainant purchased the car being Registration No. KL-7 AM 9308 from the 2^nd opposite party which was manufactured by the 1^st opposite party at a price of Rs. 4,26,182/- evidenced by Ext. A3 invoice. Exts. A5 to A8, A10 to A12, A15 and A16 go to show that the complainant had to approach the 2^nd opposite party to rectify the following defects of the vehicle which has been charted as below :

Sl. No.	Date	Exhibits	Nature of complaint.
	19-01	A5	Carry out 2nd service. Remove all plastics from seats, body polishing, internal rattling, Rear hatch tray rattling,Left both door glass rattling. Antirust coating (Doors & Dikky).
	20-01-2004	A6	Oil, Oil filter.
	20-01-2004	A7	Body polishing
	05-05-2004	A8	22500 Km. Service – Engine oil cast supply, Replace Left side carpet (Repeat complaint), check for engine over hearing, replace cool and check up all rattlings.
	23-08-2004	A10	Knocking sound while starting – check with Examiner. Pegboard rattling. General check up. Water wash. Check battery. Rat has been removed, check for alteration in timing. Checkup battery for leakage, Jerking-check engine timing.
		A11	Replace coil spring sleeves (front) . Remove oil scrap, Align silencer main pipe. Battery is overcharged. Dashboard noise. Battery container badging.
	23-08-2004	A12	Wash vehicle. Knocking noise while starting. Dashboard rattling. General checkup', check engine jerking, R & R alternator, Overhaul removed alternator.
	23-09-2004	A15	Knocking sound (cold start). A/c not working. Battery overcharging & Bulging. Replace coil spring sleeves (Front). Remove oil scarp, darts, rejite. Align Silencer main pipe. Wheel alignment & wheel balancing.
	02-11-2004	A16	Breakdown ATT at Kadavanthra, knowing so, fill up gas in A.C. (Dehidrats and reload). R & R A.C. Bok. R. & R. A.C. Evaporator, R. & R. dashboard trim. (instrument facia). R & R A.C. Compressor (includes oil level checkup and top up).

8. According to the complainant, one year warranty has been provided by the 1st opposite party for the car, uncontroverted. The above recurring defects of the vehicle seem to show that the vehicle suffers from inherent manufacturing defect, uncontroverted. The Hon'ble National Consumer Disputes Redressal Commission in Nachiket P. Srigaonkar Vs. Pandit Automotive Ltd. And Another 2008 (2) CPR 369 (NC) held in para 14 as follows:

“14. In today's world there are several manufacturers and they have flooded the market with several brands of vehicles. They are also alluring the consumers by issuing advertisements in the print and electronic media making huge claims about the capacity and good quality of their vehicles introduced by them in the market. Hence, the gullible consumer who is lured by these advertisements, expects defect free smooth service at least in the first year of purchase of the car. In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the consumer Forum in the written submissions filed by OP1 there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitor i.e. facts speak themselves hence there is no deed to refer the vehicle to a third party for giving an opinion.”

The findings of the Hon’ble National Commission is squarely applicable in this case as well.

9. In view of the above, the opposite parties are jointly and severally liable either to replace the defective car with a new one or to refund the price of the vehicle. However admittedly, since the complainant had sold the disputed vehicle in 2005 or 2006 itself his claim for replacement or refund of the price does not arise or is sustained in law. This issue is answered accordingly.

10. Point No. iii. :- Admittedly, the complainant had possessed the vehicle for 3 years during which period time and again, he had had to approach the opposite parties to get the defects of the vehicle repaired, but to no avail where from it is clear that the consumer has been put unnecessary expenses, inconveniences and mental agony which too is not answered for. That seems to have compelled the complainant to sell the vehicle for no unavailable remedies. The mental agony the situation which the complainant had been put to calls for remedial compensation. Eventhough, the 2^nd opposite party dealer had tried their level best to redress the grievances of the complainant when he approached for the same admittedly and evidently the 1^st opposite party manufacturer turned a deaf year and a blind eye towards the complaints of the complainant for which they are inexcusably answerable to the consumer. This necessarily calls for compensation, we fix it Rs. 25,000/-

11. In the result, we partly allow the complaint and direct that the 1^st opposite party shall pay a compensation of Rs. 25,000/- (Rupees Twenty five thousand only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest at the rate of 12% p.a. till payment.

Pronounced in open Forum on this the 29^th day of February 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

=========