PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2011
Filed on :18/12/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 664/2010
Between
Shankaran Unni R.V : Complainant
S/o. Velayudhamenon, (By Adv. Thomas T. Varghese,
Ramat Housing, T.D. Road, Ernakulam,
Keraleswarapuram, Kochin-11)
Mulavukad P.O., Ernakulam.
And
1. M/s. Maruthi Suzuki India Ltd., : Opposite parties
Nelson Mandela road, (1st O.P. by Adv. V. Santharam,
Vasant Kunj, V. Santharam & Associates,
New Delhi-110 070. Advocates & Solicitorsm Srilakshmi,
40/8709, Sreenivasa Wallan road,
Ernakulam, Kochi)
2. M/s. Popular Vehicles and (2nd O.P.By Adv. George Cherian
Services Ltd., Karippaparambil, HB-48,
Kuttukaran Centre, Panampilly Nagar, Kochi-36)
Mamangalam-682 025.
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant purchased a Maruti Swift VDI car
on 29-12-2008 for an amount of Rs. 5,75,000/- from the 2nd opposite party, which was manufactured by the 1st opposite party. The 1st opposite party had provided warranty for a period of two years from the date of purchase. When the vehicle had hardly run 843 kilometers, an abnormal noise could be heard from rear right side of the vehicle when the vehicle crossed speed of 40 kms per hour. The complaint immediately brought to the attention of the 2nd opposite party. They carried out the welding during the first service of the vehicle for correcting the said defect. However, the same problem persisting the vehicle had run about 8105 kms. The 2nd opposite party attended to the complaint during the third service of the vehicle on 21-10-2009. Thereafter on 03-11-2009, 04-01-2010 and 06-07-2010 they attended to the same complaint during services but they failed to rectify the rectify the defect. The vehicle has remained in garage of the opposite parties for several days. On 06-09-2010 the vehicle was put to test running in the presence of representatives of 2nd opposite party, but they could not identify and correct the problem. According to the complainant the above defect of the vehicle still remain uncured and it is due to the manufacturing defect of the vehicle. The complainant is unable to take the car beyond the speed of 40 kms per hour due to the noise. Hence the vehicle cannot be put to proper use even now. From the repeated defects in the vehicle it is evident that the vehicle supplied by the opposite parties is of substandard and defective quality. The complainant caused to issue a lawyer notice to the opposite parties. The 2nd opposite party had issued reply. But the opposite parties have not cared to cure the defect in the vehicle till date. Hence the complainant approaches this Forum seeking the following reliefs against the opposite parties.
a. to direct the opposite parties to replace the disputed Maruti Swift car with a defect free model.
b. to direct the opposite parties to pay a sum of Rs. 1,00,000/- as compensation for loss and damages
c. to pay compensation for mental agony and costs of the proceedings.
2. Version of the 1st opposite party
The 1st opposite party sells vehicles so manufactured by it to its dealers under the dealership agreement. The 1st opposite party has no involvement in the transaction of sale of vehicle to the individual customer the relationship between the 1st opposite party and the dealer is that of principal to principal basis and governed by dealership agreement. The warranty is not absolute and is subject to certain terms and conditions provided. The complainant bought the vehicle from opposite party No. 2 on 29-12-2010, hence the warranty obligation of this opposite party has concluded on 29-12-2010 by efflux of time. The present case is barred by limitation. The vehicle manufactured by the 1st opposite party undergo stringent quality checks at all levels of production and the 1st opposite party has ISO/TS16949 certification for maintaining international manufacturing standards. The complainant sent the vehicle at the workshop of opposite party No. 2 for obtaining 1st free service on 30-01-2009 at 843 kms. At the time of obtaining said services the complainant neither reported alleged problem nor any abnormality was observed by the expert service engineer of the workshop during maintenance service. During said service, minor noise was observed which was immediately corrected. At the time of obtaining 2nd free service the complainant did not report the alleged problem. The complainant brought the vehicle at the workshop of opposite party No. 2 on 21-10-2009 at 8105 kms. The complainant reported LH front door pad sound upon which the vehicle was thoroughly inspected and all doors were lubricated. The complainant reported check rear sound upon which the vehicle was sent at the 2nd opposite party on 03-11-2009, the 2nd opposite party thoroughly inspected and no abnormality was observed in the vehicle. The complainant after general checkup and extensive trials & test drive took the delivery of the vehicle to his entire satisfaction as evident from his signatures on the job card. The complainant brought the vehicle at the workshop of opposite party No. 2 for obtaining accidental repairs on 14-05-2010, 06-07-2010 and 21-07-2010 along with carrying paid services which substantiate negligent and careless use of vehicle in question. There is neither any manufacturing defect in the vehicle nor alleged problem remains as alleged by the complainant. The false and frivolous complaint of the complainant shows his malafide intentions and to make unjust gains and the same deserves to be dismissed with exemplary costs.
3. Version of the second opposite party
The averment that when complainant’s vehicle had covered 843 kms. there was abnormal noise from rear right hand side of the vehicle and that second opposite party has welded the defective part etc. is not correct. Complainant has brought the vehicle for first service on 30/01/2009 at 843 kms. The complainant demanded the first service only. Whereas the 2nd opposite party had found rear seat sound which was corrected by adjusting the rear seat locks. Complainant has brought the vehicle on 21/10/2009 at 8105 kms. for checking front left hand side door pad sound. The same was corrected by lubricating all the doors. The complainant has brought the vehicle on 07-11-2009 at 8477 kms. for minor body repair. Thereafter complainant has brought the vehicle on 04-01-2010 at 10178 kms for periodic service and for accident work. Complainant’s vehicle was not having any defect and is in perfect condition. Complainant has no cause of action against the 2nd opposite party.
3. The complainant and the opposite parties 1 and 2 represented through counsel. The complainant was examined as PW1. Exts. A1 to A13 were marked on his side. The witness for the 1st opposite party was examined as DW1. Exbts B1 to B12 were marked. Witness for 2nd opposite party was examined as DW2. We have heard the respective counsel.
2. The points that emerges for consideration are as follows:
i. Whether the complainant is entitled to get replacement of the
vehicle in question from the 1st opposite party?
ii. Compensation and costs if any.
3. Points Nos. 1 & 2. The case of the complainant at the very out set is that he has been hearing an abnormal noise from rear right side of the disputed vehicle. Though on different occasions the 2nd opposite party’s service engineers rectified that problem, the defects is still persisting and he alleges manufacturing defects in the vehicle.
Both the opposite parties refuted the said contention of the complainant. According to them only once the complainant reported with the complaint ‘rear sound’ it was corrected. When he complained Front Left hand side door pad sound also was rectified. Thereafter he brought the vehicle for accident repairs and periodical services. On all these occasions vehicle was serviced to the utmost satisfaction of the complainant. Even though the complainant alleges manufacturing defect in the vehicle nothing is on record to substantiate the same.
No dispute with regard to the purchase of the vehicle. Ext. A1 is the tax invoice dated 29-12-2008. The warranty for the vehicle is for a period of 24 months or 40,000 kms from the date of purchase. According to the complainant the abnormal noise noticed when the vehicle had hardly run 843 km. the opposite parties admitted that during the 1st free service such abnormalities were corrected. The complainant contented that there after it persisted. Since the complainant has been filed with the warranty period the contention of the opposite parties that the complaint is barred by limitation is not at all sustainable.
Ext. B1 is the copy of dealership Agreement. Exts. B2 to B12 are job cards
Job cards submitted by the complainant.
Sl. No. | Exhibits | Date | Demanded repairs | Amount | Re marks |
1. | A3 | 30-01-2009 | Engine Oil 15W40 | 4,41,08132 | Done 1st service engine oil replaced, rear seat sound corrected |
2 | A4 | 21/09/2009 09/07/2009 04/06/2009 | Replace RR bulb Mud Flap Set | | |
3 | A5 | 21/10/2009 07/10/2009 | Check ft lh door pad sound Dicy pad sound | | Done dickypad setting |
4 | A6 | 07/11/2009 03/11/2009 | 1.Minor repair body repair 2.head rest rusting check roof check rear sound | | |
5 | A7 | 04/01/2010 | 1.Minor repair painting,LH trim gap 2.Abnormal Noise- RR RH side Sound 3.Horn check RH sometimes not working 4.Seat lock check.LH trim gap check painting check | | |
6. | A8 | 06-07-2010 14/05/2010 | 1. Paint touch up 2. Minor repair | | Lh quarter panel leveling painting |
7. | A9 | 06/09/2010 | 1. Running repair 2. Abnormal noise- pillar sound check | | |
8. | A10 | 30-09-2010 21/07/2010 | 1. Door pad check 2. Denting/painting Repair | | Rh quarter panel & rr bumper rhcomr painting |
The above documents go to show that the complainant had to approach the opposite parties on 03/01/2009. 07/10/2009 and 03/11/2009 for correcting the abnormal sound of his vehicle.
During cross-examination the complainant deposed that Ext. A10 is the job card which is just before the complaint. In which he demanded only for routine services in April and May. After the filing of the complaint the vehicle sent only for routine services in April and May. The learned counsel for the complainant relied on the decision laid down by the Hon’ble apex court in C.N. Anantharam Vs. Fiat India Ltd AIR 2011 SC 523 Para Nos. 16 and 17 read as follows:
16.“In such circumstances, the order passed by the National Commission, impugned in these Special Leave Petitions, does not appear to be unreasonable. For whatever reason, except for a mere 800 kilometers the Petitioner has not used the vehicle after it was delivered and has, on the other hand, made several complaints in an attempt to prove that there were manufacturing defects in the vehicle. The National Commission has taken all these matters into consideration in giving the impugned directions regarding delivery of the vehicle to the Petitioner after having the same properly checked by an independent technical expert who would have to certify that the vehicle was free from any defect when it is delivered.
17. From the facts as disclosed, it appears that apart from the complaint relating to noise from the engine and the gear box, there was no other major defect which made the vehicle incapable of operation, particularly when the engine was replaced with a new one. However, in addition to the directions given by the National Commission, we direct that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the life time tax and EMI along with interest @ 12% per annum and costs, as directed by the State Commission.
The impugned order passed by the Hon’ble National Consumer Disputes Redressed Commission is extracted for conveniences which reads as follows:
“…..Therefore, while we hold that the complainant has not been able to prove any manufacturing defect, all the same, the dealer and the manufacture are directed to remove the defect, if any, in the vehicle make it road worthy, if necessary be reconditioning the vehicle and deliver it to the complainant in the presence of any independent technical expert mutually agreed upon by the complainant and opposite parties and for this purpose any of the party may apply to the District Forum for appointing such expert if it is not mutually agreed upon by the parties. The expert shall certify that the vehicle is free from any defect which shall be final for all purpose. This should be done within a period of three months. The opposite parties, thereafter, to provide a warranty for one year from the date of delivery. The revision petitions are accordingly disposed of in these terms. Under the peculiar facts of the case, there would be no order as to costs.”
In conformity with the dictum laid down by the Hon’ble Supreme Court and the Hon’ble National Consumer Disputes Redressal Commission in the above case, we direct the opposite parties to appoint an independent expert in tune with the observation made by the Hon’ble National Consumer Disputes Redressal Commission and the Hon’ble Appex Court. It is made clear that the parties at liberty to approach this forum to get the expert commission appointed. Ordered accordingly.
The above said order shall be complied with within a period of two months from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of December 2011
Sd/-
C.K. Lekhamma, Member.
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of tax invoice
A2 : Copy of statement of accounts
A3 : Copy of vehicle history 30/01/2009
A4 : Copy of vehicle history
dt.09/07/2009
A5 : Copy of vehicle history
dt.07/10/2009
A6 : Copy of vehicle history
dt. 03/11/2009
A7 : Copy of vehicle history
dt. 04/01/2010
A8 : Copy of vehicle history
dt. 14/05/2010
A9 : Copy of job card dt. 06/09/2010
A10 : Copy of vehicle history
dt. 21/07/2010
A11 : Copy of letter dt. 01-11-2010
A12 : Copy of reply notice
dt. 12/11/2010
A13 : A.D. card
Opposite party’s Exhibits :
Ext. B1 : Copy of Agreement
B2 : PDI job card 26/12/2008
B3 : Copy of warranty policy
B4 : Copy of Job card
dt. 30/09/2009
B5 : Copy of job card
dt. 04/06/2009
B6 : Copy of job card
dt. 07/10/2009
B7 : Copy of Job card
dt. 21/10/2009
B8 : Copyof Job card
dt. 03/11/2009
B9 : Copy of job card
series dt. 21/01/2010
B10 : Job card dt. 14/05/2010
B11 : Copy of Job card
dt. 06/07/2010
B12 : Job card dt. 11/12/2016
Depositions:
PW1 : Shankaran Unni R.V.
DW1 : Gainda Raja. K
DW2 : Rajesh Kumar N.
