C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant purchased a Scorpic Car from the second opposite party on 26-06-2009. Its doors alignment defects noticed after two days Consequently without using the remote, the alarm warning-system crupting sound. The very same complaint repeated on several occasions causing great hardships and difficulties. Once when the complainant parked the car in the N. Paravur court premises, the alarm sound crupted unexpectedly and it was stopped after some hours and thereby caused disturbance to the court proceedings. The N. Paravur Police charged a petty case and the complainant had paid Rs. 500/- towards penalty.
The making of alarm noise repeatedly without applying the alarm switch is due to the door alignment problem of the vehicle supplied to the complainant. The failure on the part of the opposite parties to rectify the said defect by normal repairing would substantiate the fact the vehicle suffers from some inherent manufacturing defect. Hence complainant filed this complaint seeking the following remedies against the opposite parties to direct opposite parties to refund the price of the vehicle or in the alternative, the replacement of the said vehicle by a defect free vehicle, compensation for mental agony and costs of the proceedings.
2. Version filed by the1st opposite party.
The transaction between the 1st opposite party and the 2nd opposite party are on principal to principal basis. The 1st opposite party never had any transactions with the complainant and therefore there is no privity of contract between the complainant and them. The complaint is bad for mis-joinder of necessary party. There is no truth in the allegations that after 2 days from the date of delivery of the vehicle, door alignment defects were noticed. The opposite party denied the allegation with regard to that warning system caused disrupting sound. The alarm system will make sound if any object forcibly hits the body of the vehicle. The alarm system is made in the vehicle for the security of the vehicle. The complainant ought to have taken special care while parking a vehicle fitted with alarm system in the court premises. The 2nd opposite party informed that said vehicle has reported at the work shop of them on 28/09/2009 for the first free maintenance service thereafter on 12/10/2009 and 06/01/2010. During these occasions there was no complaint reported by complainant, with regard to he vehicle security system. Malfunctioning of vehicle alarm system was first complained on 13/03/2010 after the vehicle had covered 1499893 kms. The dealers service personnel attended the vehicle. There was some minor complaints with the door switches and the door switches were replaced under warranty. The repair of door alignment was also carried out. The complainant on the job card expressed full satisfaction. There is no manufacturing defect in the vehicle purchased by the complainant. The complainant never approached this opposite party with any complaint. After filing the complaint and appearance of the opposite parties in the Forum, the vehicle reported for regular maintenance service on 21/06/2010. At that time there was no complaint reported by the complainant regarding Security alarm system. There is no merit in the averments that the complainant I entitled for refund of the price of the vehicle or the replacement. The complaint is liable to be dismissed with compensatory costs.
3. Version of the 2nd opposite party
The complainant has no case that there has been any deficiency in service on the part of the 2nd opposite party. The complaint is therefore liable to be dismissed for misjoinder of necessary party. The complainant having brought his vehicle to the workshop of 2nd opposite party with the complaint that the alarm system used to erupt unexpectedly. They had examined the vehicle and corrected the said complaint, being minor in nature, to the satisfaction of the complainant. There is no manufacturing defect in the vehicle purchased by the complainant. Hence the complainant is not entitled to seek refund of the price of the vehicle or replacement of the same. The 2nd opposite party being only the dealer of the manufacturer cannot be held liable or responsible for replacement of the same or refund of the price of the vehicle.
4. The complainant and the opposite parties represented through the counsel. The complainant adduced only documentary evidence. Exts. A1, A2 & C1 were marked on his side. The opposite parties did not adduce any evidence. Thereafter we have heard the respective counsel.
5. The points that came up our consideration are as follows:
i. Whether the complainant is entitled to get replacement of the vehicle under dispute or rectify the defects?
ii. Compensation and costs if any
6. Points Nos. i&ii. The grievance of the complainant is that the alarm system warning creping sound without using remote after two days of the purchase. According to him this is due to the door alignment problem of the vehicle. He stated that the said defect is due to the inherent manufacturing defect. The opposite party denied those allegations and averred that there was no such complaint reported at the time of 1st and 2nd free maintenance services. Further they contended that the 1st complaint was only on 13-03-2010 after the vehicle had covered 14983 k.ms. the same was rectified. The counsel for the 2nd opposite party relied on the following decisions to substantiate their case.
1. Venkitaramanan Potti V Travancore Devaswam Board 1993 (2)KLT 374
2. Laxmi Engineering Works Vs. P.S.G. Industrial Institute II (1995)CPJ 1 (SC)
3. Meera Industries Vs. Modern Constructions II(2009)CPJ 402 (NC)
4. Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. Anr 1 (2010) CPJ 4 (SC)
5. P.S. Kalantri (Dr) Vs. Wipro G.E. Medical Systems Ltd. 1 (2010) CPJ 135 (NC)
6. R.D. Goel & Co. Pvt. Ltd. Vs. Nitco Roadways Pvt. Ltd. II (2010) CPJ 106 (NC)
7. State of Himachal Pradesh, Vs. Jai Lal and others AIR 1999 SC 3318
8. Maruthi Udyog Ltd. Vs. Susheel Kumar Gabgotra And Another (2006) 4 SC 644
9. Hindustan “Motors Ltd. and another Vs. Sivakumar and another (2000) 10 SC 654
10. Appeal No. 1332/2000, Order dt. 2nd April 2003
11. Union bank of India Vs. M/s. Seppo Rally OY & ORS III (1999) CPJ 10 (SC)
12. Ravneet Singh Bagga Vs. M/s. KCM Royal Datch Airlines & ANR III (1999) CPJ 28 (SC).
The 2nd opposite party averred that the complainant is not a consumer as defined under C.P. Act. But there is no positive evidence before us to substantiate their allegation. Hence we are of the opinion that there is no merit in that allegation. Therefore we are not relying the following decisions submitted by the counsel for the 2nd opposite party.
1. 1993 (2)KLT 374
2. II (1995)CPJ 1 (SC)
3. II(2009)CPJ 402 (NC)
4. 1 (2010) CPJ 4 (SC)
5. 1 (2010) CPJ 135 (NC)
6. II (2010) CPJ 106 (NC) 1999) CPJ 28 (SC)
Ext. A1 retail invoice shows the transaction between the parties. Ext. C1 is the report filed by the expert commissioner. The commissioner reported that “ I did trail run near about 20kms. After 6 kms run, I heard the warning announcement from the vehicle, indicating that the driver should take care. At that time all the doors are in perfectly closed condition. No other dangerous situation is observed inside the running vehicle.
This will make irritation while driving the vehicle. The driver feel discomfort in driving”
He further reported that “ I could not hear any warning sounds while parking. But if the system is in defective condition, the warning sound is possible at any time while parking without any possible reason”.
The conclusion in Ext. C1 report is “This signal system is an electronic equipment. The electronic system and its circuit should be replaced”.
Evidently both sides have not filed any objection to the Ext. C1 report . Therefore we are not relying the decision submitted by the counsel for the 2nd opposite party reported in AIR 1999 S.C. 3318. The learned counsel for the opposite party relied the decision reported in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another. 2006 (4) SCC 644 in which the Hon’ble Supreme Court observed that the direction of the Hon’ble High court was not justified for the replacement of the vehicle instead of replacing the defective part. We are bound by the decision of the apex court.
The complainant further contended that on several occasions he had to suffer great hardships and difficulties due to the unexpected sound of alarm-warning system. For substantiating his contention he produced Ext. A2 acknowledgement of money receipt issued by Sub Inspector of police, Aluva. Therefore we are of the opinion that complainant is entitled to get Rs. 5,000/- as compensation for mental agony from the 1st opposite party. However we inclined to grant the cost of the proceedings.
There is privity of contract between the 1st and 2nd opposite parties. Hence both of them have joint liability. Therefore we are not relying the decisions submitted by the leaned counsel for the 2nd opposite party
6. Accordingly we partly allow the complaint as follows:
The opposite parties shall jointly and severally replace the alarm-warning system of the vehicle in question on free of cost and provide one year fresh warranty for the same to the complainant.
ii. The opposite parties shall jointly and severally pay compensation of Rs. 5,000/- ( Rupees five thousand only ) to the complainant for the mental agony suffered by him and also pay Rs. 1,000/- as litigation costs to the complainant. The above said amount shall carry interest at the rate of 12% p.a. from the day fixed for compliance of this order till realization.
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
Pronounced in the open Forum on this the31st day of May 2011
