PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 27th day of August 2012
Filed on : 22-02-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No.88/2010
Between
Malini Shaju, : Complainant
W/o. Shaju, (By Adv. Arun. R,
Kalarickal house, Mamala, Chakkalayil, Chittoor
Thengakkal P.O., Vandiperiyar, Road, Ernakulam)
Idukki.
And
1. M/s. International Cars and Motors Ltd. : Opposite parties
Having Administrative office at Jalandhar (1st &4th by R.S. Kalkura
road, Hoshiarpur, Punjab. ‘Srivathsa’ Judge’s
2. M/s. International Cars and Motors Ltd., Avenue, Kaloor, Kochi-
Sonalika, Pankaj Plaza-1, 682 017)
Plot No. 2, Karkardooma Community
Centre, Commercial Complex,
Delhi, Pin-110 092. (O.Ps.2&3 absent)
3. M/s. Maxim International Cars,
XXVII/546, Toll Junction, Edappally,
Kochi-24, now office at Maxim
International Cars Pipeline Junction,
Karumakadu Juma Masjid road,
Thrikkakkara P.O., Cochin-21.
4. International Auto Trac Finance
Ltd., Chak Gujaran P.O.,
Piplanwala-146 022,
Jalandhar road, Hoshiarpur,
Punjab.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
Lured by the advertisement of the opposite parties on 23-07-2008 the complainant purchased a sports utility vehicle from the 3rd opposite party which was manufactured by the 1st and 2nd opposite parties. The price of the vehicle was Rs. 7,56,000/-. The vehicle was registered as KL 37/4753. The complainant purchased the vehicle with the financial assistance of the 4th opposite party. The complainant was getting less mileage than the mileage offered by the opposite parties 1 and 2. The tyre of the vehicle had worn off even when it completed 150 k.ms. At that juncture the complainant caused a lawyer notice to the opposite parties demanding to replace the vehicle with a new one. The opposite parties issued a reply stating untenable contentions. In the meantime the show room of the 1st and 2nd opposite parties in Ernakulam was closed down. So the vehicle was taken to the show room at Trivandrum. In spite of repeated repairs various defects of the vehicle persisted. The following complaints are noted in the vehicle.
1. Mileage less than 10 km per litre
2. Frequent tyre worn off due to manufacturing defect
3. Hand break complaint.
4. Battery damage
5. reverse gear slipping
6. Excess emission of smoke
7. No pick up whilegoing upwards
8. Breaking off steering end
The vehicle suffers from recurring defects and the complainant can not ply the vehicle. So the complainant is before us seeking direction against the opposite parties 1 to 3 to replace the vehicle with a new model or refund the price of the vehicle with 12% interest together with costs of Rs. 10,000/-.
2. The version filed by the 1st and 4th opposite parties is as follows.
The vehicle manufactured by the opposite parties 1and 2 is a technically perfect and good vehicle. The mileage of the vehicle was checked in presence of the complainant and it was found 17.5 kms per liter. The mileage of the vehicle depends upon the road conditions and driving of the vehicle at the prescribed speed limit. The complainant is using the vehicle for taxi purpose and is also using the vehicle for taxi purpose and is also using the vehicle very roughly and at high speed. The alleged defects of the tyres were caused due to negligence of the complainant. The defects highlighted by the complainant were rectified by the dealer of the 1st and 2nd opposite parties. The vehicle of the complainant is in perfect running condition and there is no defect in the same. The complainant was financed by the 4th opposite party and the complainant failed to repay the loan instalments regularly in time and hence the complaint has been filed on false grounds just to escape from the liability of the loan. The complainant has no cause of action to file the complaint and the same is liable to be dismissed.
3. In spite of receipt of notice from this Forum the 3rd opposite party did not respond to the same for their own reasons. The complainant was examined as PW1. The expert commissioner was examined as PW2. Exts. A1 to A11 were marked on the side of the complainant. The expert commissioner’s report was marked as Ext. C1. The witness for the 1st and 4th opposite parties was examined as DW1. Heard the counsel for the contesting parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get refund of the price
of the vehicle with interest or to get replacement of the
vehicle with a new one?
ii. Whether the opposite parties are liable to pay costs of the
proceedings to the complainant?
5. Point No. i. Admittedly the complainant purchased a sports utility vehicle from the 3rd opposite party which was manufactured by the 1st and 2nd opposite parties and financed by the 4th opposite party. Warranty for a period of 12 months or 15000 kms which ever is earlier was provided by the 1st and 2nd opposite parties evidenced by Ext. A2 warranty card. According to the complainant time and again she had to approach the 3rd opposite party to cure the recurring
defects of the vehicle. On the contrary the opposite parties 1st and 4th opposite parties maintain that the vehicle is free from any defect and as and when the complainant approached the 3rd opposite party they duly rectified the defects. Ext. A6 series goes to show that the complainant approached the opposite party on the following occasions.
Sl. No | Exbts | Date | Nature of defects | Amount spent in Rs. |
1 | A6 | 30-08-2008 | 1. Oil filter 2. Engine oil 3. Gear oil 4.Door trim clip | 2,928 |
2 | ” | 04-10-2008 | 1. Bush Stabilizer Bar 2. Sloted HexNut M14*15 3. Breather Assy 4. Brake fluid 5. Capless Blub 6. Engine Oil 7. Door Clip 8. Clip RR Room | 157.95 |
3 | ” | 28-10-2008 | 1. Oil Filter 2. Engine Oil 3. Diesel Filter 4. Bush (Stabilizer Bar) | 2,915.29 |
4 | ‘ | 23-12-2008 | 1. Gear Oil 2. Power steering oil | 6,258.19 |
5 | ” | 30-07-2009 | 1. Engine Oil 2. Sealed Relay 3. Suction & discharge Pipe 4. Spring W.C. end | 4,339.30 |
6 | ” | 16-09-2009 | 1. Tail Lamp assy 2. Tail gate assy 3. Rear bumber LH 4. Assy tail gate guide LH 5. Rear foot rest 6. Tail gate log SDX golden 7. Spoiler 8. Assy R/F D piller LH 9. Assy glass Channel LH 10. Backlite tinted 11. Gas spring LH 12. Gas spring RH 13. A/C compressor 14.REC Drier 15. Beta seal | 77,103.90 |
7 | ” | 09-11-2009 | 1.FrontSusp/steerning Lintage 2. Less Mileage 3. Tyre wear FLH 4. Battery check up 5. Reverse gear slipping 6. Power steering oil leakage 7.Less pickup more black smoke 8. Hand break check up 9. Checking right rear S/A 10. Left side rear operator class Assy checking | ----- |
8 | ” | 27-01-2010 | 1. Charges for changing oil complete | 150 |
9 | ” | “” | Valvoline ge | 1,195 |
10 | ” | 19-04-2010 | 1. Gear not shifting/clutch problem 2. Timing belt need changing 3. Diesel Air block 4. All oil check up/change 5. Check brake 6. Gear tight. Reverse, 1st 7. RH Fog lamp loose 8. Susp. Ch | -- |
11 | ” | 19-04-2010 | 1. CMC Assy 2. Concentric Slave Cylend 3. Driven Plate 4. Oil Filter assembly 5. Cartridge fuel filer 6. Brake lever spring | 1,835 |
12 | ” | 19-04-2010 | 1. Clutch Pedal spring 2. Filter (Air cleaner) 3. Split Pin | 7,679 |
13 | ’’ | 11-05-2010 | 1. Assy Inner Handle LH-SD | 76 |
14 | ” | 27-08-2010 | 1. Oil filter assembly 2. Filter (Air Cleaner) 3. Bush(stabilizer bars) 4. FRT Brake Disc Ventilat 5. Single Tappet Roll Bear 6. Water Seal 7. Lock Washer 8. Kite Lined Shoe 9. Kite shoe Holdwon 10.Bush Kit Rear Shocker 11.Assy Inner Handle LH SD
| 9,290 |
15 | “ | | 1. Removing door front wheel Repairing from brake disc complete and setting brake 2. Removing rear wheel left side—brake shoe completion and replacing break shoekit, complete wheel drum cutting and setting break. 3. Replacing wheel bearings & greasing and fitting and charging balance rod bush & setting suspension. 4. Changing Oil –filter Gear Oil Losing oil and changing Air cleaner filter 5. Changing rear shode bar bushes & setting rear 6. Adjusting tuning wheel, belt – etc. and tuning up the engine Lathe charges Wheel drum cutting and polishing 2nos washing
| 4045 |
16 | “ | 29-09-2010 | 1.Knuckle Arm LH 2.SPL Bolt for Tuning 3.Rubber spacer | 746 |
17 | “ | 29-09-2010 | 1. LH steering knuckle refitting and setting suspension | 350 |
18 | “ | 01-10-2010 | 1.Removing down Gear box by dismantling clutch, replacing CMC rear cylinder, adapter, Hydrolio resetting & refitting Gear Box any 2. Charging rear spring belt bushes and resetting 3. Removing left S/A and replacing shock absorber break setting, fitting brake pedal, steering box oil filling | 2,470 |
19 | “ | 01-10-2010 | 1. CMC Assy 2. Concentric Slave cylinder 3. Adapter Hydraulic 4.Shock Absorber FRT 5. Rubber Bush 6. Bush Kit Rear Shocker 7. Warm Pinion | 3,648 |
20 | “ | 06-03-2010 | 1. Assy Inner Handle RH 2. Assy Inner Handle LH-SD 3. Silencer hanging Rubber 4. Door Trim clip 5. Tall gate latch | 834 |
21 | “ | 09/03-2010 | Charges for charging inverter Assy 2, setting door, rectification of shacking dickey door, replacing dickey door lock, changing silencer bracket | 150 |
22 | “ | 30-12-2010 | 1.Dismantling foot suspension cleaning component parts replacing Torsen bar assy and setting 2. Removing suspension arms, retreating arms, replacing silent blade Bushes and resetting 3. Removing ball joint assy lowarm, replacing Bill Jilam upper & Lower out Ball, both and resetting suspension complete. 4. Changing stability and set brush 5. Checking setting brake 6. Component lens 7. Door lock check up door setting complete check, notice rattling sound 8. Removing sport sett relensing changes for brushes and setting Lathe Arm – Charges, Rear spring both sett retensioning wheel alignment washing | 4,730 |
23 | “ | 13-12-2010 | 1. Torsion Bar LH 2.Bush (Stabilizer bars) 3. Silent Block Small 4. Silent Block 5. Ball joint Assy upper 6. Outer Ball Joint Assy 7. Assy Lower Ball Joint 8. Split Pin-03.2x32 9. SPL Bolt for Turning Ad 10. Rubber Spacer 11. Bonnet stay Rod bush 12. Rubber Bush 13. Inner Ball Joint Assy 14. Bush KIT Top Front Shoc | 4,954 |
6. During the proceedings in this Forum at the instance of the complainant an expert commissioner was appointed by the Forum and his report was marked as Ext. C1 and he was examined in this Forum as PW2. The findings of PW2 in Ext. C1 reads as follows:
“ Findings
1) From the results of the compression test, it is clear that the compression pressure in all four cylinders is far below the required minimum recommendations of the manufacturer, this will reduce the torque of the engine. (according to service manual, Compression pressure should be 24 bars and minimum compression pressure is 18bars. Copy of the service manual corresponding page is attached)
2) The low compression pressures of all four cylinders on dry as well as wet test and mileage tests indicates that the performance of the engine is badly affected and resulted in
a. Reduced mileage of the vehicle
b. Excessive emission of smoke due to unburned or
partially burned fuel supplied in he cylinder
c. No pick up for the vehicle while going upwards or less
pulling felt in gradient due to reduced out put torque of
the engine
d. Make uneven power generation in the engine cylinder and create vibration
SUMMARY OF DEFECTS AS ALLEGED BY THE COMPLAINANT AND FINDINGS
1) Mileage less that 10 Kilometer : The average mileage
Per liter obtained is 13.3 KM/
Liter.
2. Frequent tyre worn off : Now SIXTH set of tyre is with the vehicle. Remedial measures like knuckle arm replacement and wheel balancing were done. But still the problem of frequent tyre worn out exists.
3) Complaint in the brake : There is no severe pro-
system including hand brake blems found in the braking system hand brake is found to be in a defective condition.
4) Battery damage : Complainant herself had replaced the damaged battery with new one of make AMARON on 6/4/2009 from her pocket, even though it was damaged during warranty period.
5)Reverse gear slipping : Reverse gear is slipping
Badly
6)Excess emission : Compression test is conducted. Found that
7) No pick up while going
Upwards : Engine is in a failure stage
8) Breaking of steering end : There is a problem in the
power steering gear box
9) Complaint in the Air : A/C system is not working
Conditioner effectively
10. Complaint in the turbo
Charge of the engine : Turbo Charge is not working effectively.
7.The expert commissioner was cross-examined at length. Nothing that goes against his opinion has been proved. The expert commissioner unequivocally came to a conclusion that the vehicle suffers from manufacturing defects noted in Ext. C1. It is pertinent to note that the complainant had to run from pillar to post to get the vehicle repaired during the warranty period and thereafter evidenced by Ext. A6 series. However the opposite parties vehemently contented that the vehicle is free from any defects and the defects if any had been caused due to the improper, rash and negligent driving of the complainant nothing is on record in proof expert for the averments. Moreover he is plying the vehicle as a taxi not proved either in evidence grounds lost. DW1 who is an employee of the opposite party No. 1, who is a mechanical engineer by profession in spite of his lengthy deposition submitted that he had no occasion to examine the impugned vehicle himself. We think that the evidence of DW1 does not help the opposite parties to absolve from themselves their liability on any account especially in view of Ext. C1 conclusively. In the above circumstances we have no hesitation to hold that the vehicle of the complainant suffers from inherent manufacturing defect especially since the opposite parties do not have a case that the defects noted by the expert commissioner are repairable.
8. The decision rendered by the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Anr. (2006)4 SCC 644 constrains us from taking a moderate view in deciding that the matter at hand only be set out by the following order. The opposite parties are liable either to replace the vehicle with a new one or to refund the price as per the original invoice (not produced in this Forum). Since the opposite party in their version stated that they have closed down their dealership in Ernakulam the replacement of the vehicle is not feasible there. It has come out in evidence that at present the vehicle had covered nearly 90000 kms. In that view of the matter it is not proper on our part to direct the opposite parties 1 to 3 to refund the price of the vehicle in toto. We consider that 30% of the price in depreciation need also be be deducted from the original price of the vehicle to set things right costs of Rs. 5,000/- is also awarded necessarily. Since it has been established that the complainant has had to in this case succumbed to difficulties to unreasonable extend for which the opposite parties have no explanation.
9. In the result, we partly allow the complaint and direct that
i. the opposite parties 1 to 3 shall jointly and severally refund
Rs. 7,60,000/- after deducting 30% of the same. The
complainant shall return the defective vehicle of the opposite
parties 1 to 3 simultaneously.
ii. The opposite parties 1 o 3 shall pay Rs. 5,000/- to the complainant towards costs of the proceedings.
The above said 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 amounts shall carry interest at the rate of 12% p.a. till payment.
Pronounced in the open Forum on this the 27th day of August 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of brochure
A2 : Brochure
A3 : Report of P. Chandran
A4 : Brochure
A5 series : Bills
A6 series : Sales Order, bills etc.
A6(1) series : Bills
A7 : Job sheet
A8 : Bill dated 06-10-2009
A9 : Legal notice dt. 10/03/2009
A10 series ; Copies of bills :
A11 : Satisfaction note
C1 : Commission Report
Opposite party’s Exhibits : : Nil
Depositions:
PW1 : Manoj Sebastian
PW2 : P.J. James
DW1 : Muraleedharan V
