BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 30/10/2012

Date of Order : 30/04/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 684/2012

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :-

On 10-07-2011, the complainant purchased an India Vista Car from the 2^nd opposite party, which was manufactured by the 1^st opposite party. Time and again, he had to approach the authorised service workshop of the 1^st opposite party to get the recurring defects of the car rectified. The complainant had to entrust the vehicle with the authorised workshop of the 1^st opposite party at Perinthalmanna for 3 days and for 69 days with the 3^rd opposite party. The opposite parties failed to provide a standby vehicle to the complainant and so he hired vehicle by spending Rs. 1,800/- per day. In spite of the repeated repairs, the opposite parties could not repair the defects of the vehicle due to sub-standard and defective quality. The complainant caused a lawyer notice to the 1^st and 2^nd opposite parties calling upon to redress the grievance of the complainant to which there was no response. Thus, the complainant is before us seeking direction against the opposite parties to pay a compensation of Rs. 1 lakh together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

There is no expert report to prove the allegation of manufacturing defect. The complainant is not a consumer within the purview of the Consumer Protection Act. The warranty offered by the 1^st opposite party is subject to the terms and conditions of the warranty. During the period from 21-09-2011 to 26-06-2012, whenever the complainant had taken his vehicle to the workshop of the 3^rd opposite party the complaints in the vehicle were rectified to the satisfaction of the complainant. As regards, the alleged delay in delivery of the vehicle after entrusting the same on 26-09-2011, the 3^rd opposite party noticed that there was some complaint with the engine of the vehicle, and the 3^rd opposite party placed order with the 1^st opposite party for supply of a new engine. A new engine having been received by the 3^rd opposite party on 17-11-2011, they had carried out the necessary repairs and the vehicle was ready for delivery on 26-11-2011. As per the warranty, the 1^st opposite party is in no way liable or responsible for the alleged loss, if any sustained by the complainant, during the period when the vehicle was in the workshop. The complainant is not entitled to get any of the reliefs as prayed for and the complaint deserves dismissal.

3. The 3^rd opposite party filed a separate version raising similar contentions that of the 1^st opposite party.

4. Despite receipt of notice from this Forum, the 2^nd opposite party did not respond to the same for reasons not stated or explained. The complainant was examined as PW1 and Exts. A1 to A6 were marked. The witness for the 3^rd opposite party was examined as DW1 and Ext. B1 was marked. The witness for the 1^st opposite party was examined as DW2. Heard the counsel for the contesting parties.

5. The points that came up for consideration are as follows :-

1. Whether the complainant is a consumer within the ambit of the Consumer Protection Act?

2. Whether the complainant is entitled to get compensation and costs of the proceedings?

6. Point No. i. :- The 1^st and 3^rd opposite parties in their version stated that the complainant is not a consumer within the scope of the Consumer Protection Act. Apart from the averment in the version, nothing is on record to substantiate the same in this Forum. The said contention is liable to be rejected.

7. Point No. ii. :- It is not in dispute that on 10-07-2011, the complainant purchased a brand new Indica Vista Car from the 2^nd opposite party, which was manufactured by the 1^st opposite party. The 1^st opposite party provided warranty for 24 months or 75000 Kms., whichever occurs earlier from the date of sale of the car. According to the complainant repeatedly, he had to approach the service centre of the 1^st opposite party to get the defects of the vehicle rectified. The opposite parties vehemently contended that there is no expert opinion to prove the manufacturing defect of the vehicle. The opposite parties relied on the following decisions rendered by the Apex Judiciary :-

1. Union Bank of India Vs. M/s. Seppo Rally OY & Ors. III (1999) CPJ 10 (SC).

2. Delhi Electric Supply Undertaking Vs. Basanti Devi & Anr. III (1999) CPJ 15 (SC).

3. Navaneeth Singh Bagga Vs. M/s. KLM Royal Dutch Airlines & Anr. III (1999) CPJ 28 (SC).

8. During evidence, the complainant who was examined as PW1 deposed before the Forum that as of now the vehicle is free from any defect. Exts. A1 to A4 go to show that on several occasions, the complainant had to approach the opposite parties to get the defects of the vehicle rectified that too within the warranty period. Admittedly on 26-09-2011, the complainant entrusted the car with the 3^rd opposite party to replace the engine assembly and the 3^rd opposite party could redeliver the car only on 26-11-2011. The opposite parties contended that as per Ext. B1 warranty, they are not liable to pay any compensation whatsoever, if at all there is delay in carrying out the repairs of the vehicle. We are not to accept the same for the simple reason that such a clause does not find a place in Ext. B1.

9. By relying on the decision rendered by the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. II (2006) CPJ 3 (SC), the Hon'ble National Consumer Disputes Redressal Commission in Tata Motors Ltd. Vs. Navin Nishchal & Anr. III (2012) CPJ 718 (NC) (cited by the complainant), held in para 11 and 12 as follows :-

“11. It cannot be the case of the petitioner that a buyer of a new car would repeatedly go to the workshops of the dealer/manufacturer with flimsy complaints because doing so entails expenditure of considerable effort, time and money to the buyer. Moreover, the fact that the engine assembly had to be changed altogether is a clear admission of the reality in this case, viz., there was some manufacturing defect in the engine assembly leading to excessive consumption of engine oil and emission of smoke. However, as rightly contended by Mr. Narain, the liability of the petitioner under the warranty ended with replacement of the defective engine assembly and, even with the finding that the District Forum arrived at, the direction to replace the car was not warranted in view of the law on the subject as settled by the Apex Court (as in the case already cited above). On the other hand, there is no reason to hold that the complainant/respondent did not suffer physical harassment and mental agony as well as expenditure of time and money in the process of getting the defects in his new car attended to repeatedly. Therefore, in our considered opinion, the complainant/ respondent I ought to be suitably compensated.

12. In conclusion, we partly allow the revision petition and set aside the impugned order of the State Commission and that of the District Forum. However, in view of the foregoing discussion, we deem it appropriate to direct the petitioner to pay to the complainant/ respondent 1 compensation of Rs. 40,000 for the harassment, mental agony and expenditure suffered by him since the purchase of the car till the replacement of the engine assembly and cost of Rs. 10,000, including these proceedings. This payment may be made within four weeks of the date of this order.”

The above decision squarely applies to the facts of the case in hand. By respectfully following the pronouncement of the Hon'ble National Commission, we think that an order to pay compensation of Rs. 40,000/- is enough to abate the agony of the complainant. Not to mention, which includes the costs of the proceedings. The judgments cited by the opposite parties are not applicable to the facts of this case.

10. In the result, we allow the complaint and direct that the opposite parties shall jointly and severally pay a sum of Rs. 40,000/- (Rupees Forty thousand only) to the complainant by way of compensation for the reasons stated above.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till realisation.

Pronounced in the open Forum on this the 30^th day of April 2014.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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