KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NOS.633/10 & 730/11
COMMON JUDGMENT DATED 23.6.2012
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
SRI.S.CHANDRAMOHAN NAIR -- MEMBER
APPEAL NO.633/10
The General Motors India Pvt.Ltd,
6th Floor, Tower, Global Business Park,
Mehrauli-Gurgaon Road,
Gurgaon 110 002, -- APPELLANT
Reptd. by its Managing Director.
(By Adv.V.Shankar & Ors.)
Vs.
1. M/s.Global Education Net,
Thamath Bhavan, Ambalapuzha P.O,
Alapuzha, rept by its Secretary.
2. Geeyam Motors (P) Ltd; 1/336,
N.H.47 bye Pass, -- RESPONDENTS
Nettoor P.O, Cochin,
rep. by its Managing Director.
(R1 By Adv.G.S.Kalkura)
APPEAL NO.730/11
Geeyam Motors (P) Ltd; 1/336,
N.H.47 bye Pass, -- APPELLANT
Nettoor P.O, Kochi,,
Ernakulam.
(By Adv.Aswin Gopakumar & ors.
Vs.
1. M/s.Global Education Net,
Thamath Bhavan, Ambalapuzha P.O,
Alapuzha, rept by its Secretary
2. The General Motors India Pvt.Ltd,
6th Floor, Tower, Global Business Park,
Mehrauli-Gurgaon Road,
Gurgaon 110 002, -- RESPONDENTS
Reptd. by its Managing Director.
(R1 By Adv.G.S.Kalkura)
COMMON JUDGMENT
SHRI.K.CHANDRADAS NADAR, JUDICIAL MEMBER
These appeals arise from the judgment of the CDRF, Alappuzha in CC.No.177/07 FA 633/10 is filed by the first opposite party and the other appeal is filed by the second opposite party. The complainant was M/s. Global Education Net represented by its Secretary. The complainant had purchased a new Optra model car from the opposite parties for an amount of Rs.9,34,912/-. The vehicle was bearing registration No.KL 4-V.7. The complainant claimed refund of the price of the vehicle and compensation on the following allegations. Though the opposite parties assured excellent performance by the car, the complainant noticed while using the car abnormal wear to the tyres and noise in the vehicle. The fact was intimated to the second opposite party at the time of service. The defect was not cured even after repeated services. Due to manufacturing defect in the vehicle the tyres got completely worn out. The complainant demanded the value of the tyres. But the second opposite party finding that the grievance of the complainant was true, changed all four tyres; however charged 40% of the cost of the tyres, though there was no mistake on the part of the complainant. After replacing the tyres the wear and tear continued seriously affecting the security of the passengers in the vehicle. Though the opposite parties assured that the problem could be rectified, they could not do so. The complainant bonafide believes that the vehicle delivered to him was a defective one. Alleging unfair trade practice and deficiency in service on the part of the opposite parties, the complainant claimed refund of the value of the car and compensation.
2. Opposite parties 1 & 2 filed version separately. The first opposite party contended that detailed evidence is necessary for the adjudication of this case, hence the forum lacks jurisdiction. The complainant had no locus standi to file the complaint. The first opposite party admitted that they had given assurance about the performance of their product. As per the terms and conditions of waranty, the first opposite party is liable to cure the defects in the vehicle only. They denied the allegation that there was manufacturing defect in the vehicle.
3. The second opposite party contended that there was no deficiency in service on their part. For maintaining a better customer relation, they had given 60% discount of the value of the tyres. At the time of service, an engineer attached to the second opposite party inspected the vehicle and he found no defect. However, the second opposite party offered replacement of 2 tyres free of costs, that offer was not accepted by the complainant. He had not come forward to take delivery of the vehicle and did not respond to the letters sent to him. There is no manufacturing defect in the vehicle as alleged by the complainant. The complaint was liable to be dismissed.
4. The CDRF, Alappuzha recorded the oral evidence of one witness on the side of the complainant and marked Exts.A1 to A11. One witness was examined on the side of the opposite parties and Ext.B1 was marked on their side. A Commissioner had inspected the vehicle and filed report. That report was marked as Ext.C1. The expert was examined as PW2. The Forum considered the evidence adduced by the parties and their arguments and held that the vehicle in question was proved to have manufacturing defects. Hence, the Forum directed the opposite parties to refund the value of the vehicle. In case of failure to refund the price of the vehicle within 45 days they were directed to pay interest for the amount at the rate of 12% per annum. No other relief was granted. Aggrieved by the order of the CDRF, Alappuzha, both the opposite parties have approached this Commission with separate appeals.
5. In these appeals, the correctness of the finding of the Forum that the vehicle suffered from manufacturing defect is questioned.
6. Admittedly, the appellant in FA.633/10 was the manufacturer of the Optra model car bearing Registration No.KL.4 V 7 purchased by the complainant for an amount of Rs.9,34,912/-. The appellant in FA.730/11 was the authorized dealer of the car from whom the complainant purchased the vehicle. According to the complainant, the common respondent in these appeals, from the very beginning there was abnormal wear to the tyres of the vehicle. Abnormal noises were also heard. Repeated repairs could not remedy the defects. So, alleging manufacturing defect, refund of the value of the car is sought. The allegations are denied by the opposite parties. Ext.A5 is a letter written by the Manager, Customer service of the appellant in FA.730/11 to the complainant. From the letter, it is evident that the vehicle was reported to have front tyre wear. It is mentioned that on thorough check up, it was observed that for both front tyres, the wear was on centre portion which was observed to be due to higher inflation pressure. The tyre was inspected by the tyre manufacturer, who confirmed that there was no manufacturing defect. However, offer was made to replace the front 2 tyres. In Ext.A7 the readyness to replace the front 2 tyres was repeated. Exts.A8 and A9 requested the complainant to take delivery of the vehicle. It is an admitted case that even earlier wear to the tyres happened and were replaced realizing 40% of the value of the tyre from the complainant. The allegations in the complaint will have to be appreciated in the above back ground and the main piece of evidence available is Exts.C1 report of the commissioner and his evidence as PW2. The commissioner was appointed to look into the consistent and persistent problem of abnormal tyre wear allegedly due to manufacturing defect in the vehicle. The commissioner conducted detailed test to identify the nature, severity and reaction at the time of the complaint. He conducted a series of tests covering 6510 kms to establish the cause of the defect pointed out by the complainant. His observations were that the Vehicle History Card confirmed the complainant’s references of “tyre humming noise”. The commissioner also noticed strange humming noise from the rear tyres of the vehicle during road trials conducted on 31.7.08 and 20.9.08. The Commissioner also noticed the earlier replacement of front tyre due to defects connecting humming noise and the replacement of the 4 tyres on costs sharing basis on account of humming noise. The Commissioner specifically noticed an abnormal tyre wear on the rear left tyre compared to the rear right tyre. Abnormal Heel & Toe wear was noticed on the outer treads of both rear tyres. No Heel & Toe wear was noticed in the rest of the tyres. The commissioner was of the opinion that the uneven/abnormal Heel & Toe wear at the rear tyres pointed fingers to the defective rear suspension geometry and thus affected the dynamic traction parameters of rear tyres adversely. Further this kind of abnormality along the tyre treads generate humming noise and would lead to unreliable behavior of vehicle steering system. When these tyres are being used especially at the front and while negotiating curves at relatively higher speed bands . The magnitude of toe wear was found more at the rear tyres. The gravity of humming noise was more at the rear left tyre where the average tyre tread wear and heel and toe were was maximum compared to the rear right tyre. The presence of heel and toe wear reduced the safe permissible tread depth (tyre life) of the tyres though the degree of tyre depth wear was satisfactory at the time of filing the report at 6510 kms. The conclusions of the commissioner were that the evidence from the tests corroborated potential defects in the rear suspension system of the vehicle which was considered as the source of uneven/abnormal rear tyre wear of the vehicle and humming noise generated from the rear tyres. The defect mentioned is serious in nature in terms of safety and cost per km. of tyres. The correctness of the report of the commissioner was not challenged by any of the parties. The argument advanced by the learned counsel for the appellant in FA.633/10 was that the complainant was persistently complaining of wear to the front tyres whereas the commissioner found that wear problem was with the rear tyres. I have referred to the report of the commissioner in detail and this argument cannot be fully accepted and the cause of complaint was clearly due to the defect in the rear suspension system of the vehicle which caused safety problems for the passengers in the car. I was also contended that the tyre manufacture was not made a party. But this is not necessary because the wear to the tyres happened clearly due to defects in the rear suspension system of the vehicle. Obviously the appellants have no tenable contention to reject the report of the expert commissioner. There is also no evidence to indicate that the problem arose merely due to the failure of the complainant to sustain the optimum tyre pressure. So the forum below relying on the report rightly found that there was manufacturing defect in the vehicle. The conclusion of the forum cannot be assailed particularly because there was risk to the safety of the passengers in the vehicle involved due to the defect noticed by the commissioner.
7. The only question that remains to be considered is whether the forum below rightly directed refund of the value of the car. In Hindustan Motors Ltd Vs. N.Sivakumar & Another (2000) 10 SCC 654 the Hon. Supreme Court upheld the order of the National Commission to refund the value of the car particularly because replacement of the defective car became impossible as the manufacturer stopped manufacturing that particular model. In A.M.Dinesh kumar Vs. Hindustan Motors Ltd. & Ors III (1995) CPJ 398 this Commission directed replacement of the vehicle on finding various defects in the vehicle. In National Manufacturers Ltd & Anr Vs. Anjum Rizvi IV (2008) CPJ 130 the National Consumer Disputes Redressal Commission, New Delhi ordered replacement of a new pump. In C.N. Anantharam Vs. M/s.Fiat India Ltd & Ors 2010 STPL (CL) 1802 SC, the Hon. Supreme Court of India ordered refund of the vehicle which had inherent manufacturing defects. In Bhopal Motors Pvt.Ltd. Vs. Saudan Singh & Anr II (2008) CPJ 174 the National Consumer Disputes Redressal Commission held that if manufacturing defect in the vehicle is proved the dealer is liable either to replace the vehicle or to pay its costs.
8. The Forum below ordered refund of the price of the vehicle holding that replacement may not be to the satisfaction of the customer and that may relegate the parties to a second set of litigation. That was one of the options available with the forum and we find no reason to interfere with the order of the forum. However, the learned counsel for the appellants pointed out that the forum failed to order the complainant to return the vehicle once he receives the value of the car. This aspect can be clarified in the order in this appeal. It was also pointed out that after the report of the commissioner the complainant took back the vehicle and thereafter he has not raised any complaint. However the forum has not awarded any interest for the said period. So, the appellants can have no grievance on that aspect. In the light of the above discussion, we are inclined to dismiss both appeals but with a direction to the complainant to return the vehicle in question once the appellants/opposite parties satisfied the order of the CDRF, Alappuzha to refund Rs.9,34,912/- within a period of one month from the date of this judgment. The parties shall bear their respective costs in these appeals.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER
S.CHANDRAMOHAN NAIR -- MEMBER
SL
