KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No.674/12
JUDGMENT DATED 15.02.2013
PRESENT:
SMT. A. RADHA : MEMBER
Meeradevi.K.,
W/o. Chandramohan.K.N : APPELLANT
Kalluvilayil Ushas,
Mundapally,
Peringanad P.O.,
Adoor, Pathanamthitta.
Vs
1. M/s. Tata Motors Ltd. : RESPONDENTS
Passenger Car Business Unit,
5th Floor,
One (1) Forbes,
Dr. V.B. Gandhi Marg Fort,
Mumbai-400023.
2. M/s. Kulathunkal Motors,
Toll Junction, Bye Pass Road
Anayara, Thiruvananthapuram.
3. M/s. Kulathunkal Motors,
Branch Office
Pazhamannil Jessy Motors
Stadium Junction, Pathanamthitta.
(By Adv: V.K. Mohankumar)
JUDGMENT
SMT. A. RADHA : MEMBER
Dissatisfied by the order passed by CDRF, Pathanamthitta in C.C. No. 28/2011, the appellant/complainant preferred this appeal.
2. The complainant’s case is that he purchased a brand new Tata Indica Vista Aura Car from the second opposite party after paying the full amount on 28.12.09 After pre-delivery inspection at the second O.P’s showroom the vehicle was delivered to the complainant on 7.1.10. It is the definite case of the complainant that the vehicle delivered was not the selected one and it had many defects. He filed this complaint to direct the respondent to take back the defective vehicle and to supply a new vehicle. The complainant had suffered irreparable loss of Rs. 5 lakhs. The complainant had the allegation that while purchasing the vehicle he was not given the deduction of Rs. 2,000/- under “now or never” offer.
3. In the version filed by the first opposite party it is contended that the complainant approached the Forum below by suppressing several material facts. The complainant alleged vague and baseless defects in the vehicle supplied to him. The first opposite party is the manufacturer and was made a party to the proceedings unnecessarily and the complaint is to be dismissed for misjointer of unnecessary party. It is also contended that the vehicles manufactured by the first opposite party are with the approval from the Automobile Research Association of India and the said vehicle also had the certification as I.S.O. Ts/16949. So the allegation of manufacturing defect is not sustainable. The manufacturers are not dealing with the sale of the vehicle. All the transactions are carried out through the authorized dealers. It is stated in the complaint that he had the pre-delivery inspection at the 2nd opposite party’s showroom. Hence the complainant is not expected to raise any allegation regarding the performance of the vehicle. Further contention is that as per the rulings of the apex court the manufacturer is liable only on proving the manufacturing defects through expert opinion. In this case, no expert opinion is taken out by the complainant and the replacement of the vehicle does not arise.
4. The second respondent filed version stating that the complainant was delivered with a brand new vehicle through the 3rd opposite party at Pathanamthitta on 7.1.2010. At the time of delivery the second opposite party offered Remote Central lock, seat cover, insurance, mud flap, floor mat free of cost and to the satisfaction of the customer. All the allegations regarding the vehicle are only concocted one. It is admitted that the first opposite party announced the “now or never” offer. It is also stated that the complainant had to enter a contest through internet by entering the chassis number of the vehicle. Due to the latches of the complainant she had not entered into the contest. Suppressing this fact, the complainant instituted the complaint. Since there is no deficiency in service the defects in goods or unfair trade practice as alleged or pleaded against this opposite party is not sustainable. The complaint is filed on false and frivolous contentions and it is an abuse of process of law in order to harass the opposite parties with ulterior motive known to the complainant herself.
5. The evidence consisted of the oral testimony of the complainant as Pw1 and Pw2 and documents were marked as Exts. A1 to A10. No oral or documentary evidence adduced by opposite parties apart from the version. On hearing the parties the Forum below held that the ‘now or never’ offer was not extended to the complainant. The other allegations are not proved properly.
6. The appellant was represented by her agent and argued the matter. As per the complainant, the opposite parties delivered a defective vehicle instead of the selected vehicle. The complaint is filed for replacement of the vehicle and to take back the defective vehicle delivered to the complainant. The appellant remitted
Rs. 5lakhs as early as on 28.12.09 and the vehicle delivered on 7.1.2010. There had a ‘now or never’ offer for those who are purchasing vehicle before 31.12.2009. It is very clear from Ext. A1 that the complainant remitted the amount in due time. The complainant was not included in this offer. In that case an amount of Rs. 2,000/- had to be offered to the complainant. The complainant alleged several defects in the vehicle. Some of the defects were rectified and replaced at the time of first service. The defects shown by the complainant were noticed only after the delivery of the vehicle. Though the second opposite party cured certain defects the complainant was not satisfied other than replacement of vehicle. He also pointed out that there were defects in two twains on which the parcel tray hooked are of different length. The rubber beadings on the top of the vehicle are not properly fixed and there were many scratches on the vehicle. It was not visible at the time of delivery. Hence the complaint is to be allowed by replacing the defective vehicle.
7. The counsel for respondent/opposite party submitted that there were no manufacturing defects in the vehicle delivered to the appellant. The vehicle was issued only after pre delivery inspection. The vehicle was displayed in the showroom of the second opposite party at Thiruvananthapuram and after remittance of the invoice bill, the vehicle delivered on 7.1.2010 at Pathanamthitta. The allegation is only a frivolous one and there had no manufacturing defect rather it was not proved by any expert opinion. In the absence of expert opinion the first opposite party/ manufacturer is not at all liable for any replacement and this was based on the several decisions of the apex court. He placed reliance on the decision of the Supreme Court in Maruthi Udyog Ltd. Vs Suseel Kumar Gabgotra and another JT 2006(4) SC 113, wherein it is held that ‘the manufacturer cannot be ordered to replace the vehicle or car or refund its price merely because some defect appears which can be rectified or defective part can be replaced under warranty’. He also argued that all the vehicles manufactured in the plant are issued with Certificate of International Standard for Quality System. The counsel argued that the complainant raised the defects only after a month of delivery. He also pointed out that the defects in the head lamp was also rectified and the other defects were also rectified by re-painting during first service. This was admitted by the complainant in the complaint itself. The complaint was filed on 31.1.2011 whereas it is pointed out by the respondent’s counsel that the vehicle had 2 accidents in the month of July, 2010 and in December, 2010 respectively. Though the allegation of scratches in the vehicle happened it was not proved properly. The 2nd and 3rd respondents were always at their disposal for any replacement during the warranty period. Hence no deficiency in service can be attributed upon the 2nd and 3rd opposite party. The complainant had not proved the defects as manufacturing defect and no replacement of the vehicle is required in this case and the complaint is to be dismissed.
8. Having considered the arguments put forth by the appellant and the counsel for respondent this Commission is of the considered view that the scheme “now or never” was not extended to the complainant and the Forum below considered it favourably. Regarding the defects in the vehicle the first 2 defects alleged by the complainant were already rectified by the respondents during the first service. At the time of the pre delivery inspection the appellant could not raise or identify any defects. It is an admitted fact that there were some defects in the vehicle regarding head lamp and the bituminous type black and stiff compound in the lower part of the vehicle which were also rectified by re-painting during the first service. This shows that there had some defects in the vehicle and there is no dispute for the respondents that they have not rectified it. Further there were many scratches on the vehicle which were not proved properly and the appellant’s allegation is not sustainable. It is to be pointed out that there had no major manufacturing defects and there had no expert opinion regarding manufacturing defect and the claim for replacement of the vehicle will not sustain. It is also to be considered that the respondents have not filed any affidavit in support of their case except the version. So also the other defects alleged by the complainant were not rectified. The respondent is liable to rectify the other defects mentioned in the complaint. Since this was not considered by the Forum below this Commission find that there is deficiency of service on the part of respondent and it is to be compensated. Further the scheme ‘now or never’ was valid till 31.12.09. The appellant was not considered by the respondents in that contest. No document regarding the contest was produced to show that they were not entered in the contest through internet by entering chassis number of the vehicle. This was not proved by the respondents with any documents. Though the opposite parties contended that there had 2 accidents during July and December, 2010 it was also not proved in evidence. The matter being so, the respondents are liable to compensate the appellant/ complainant.
In the result, this appeal is allowed and while upholdng the order passed by the Forum below, this commission is of the considered view that the compensation is to be modified and enhanced. It is made clear that 1st and 2nd respondents/opposite parties are jointly and severally to pay Rs.7500/- instead of Rs.1,500/- to the appellant/complainant. The order is to comply within one month on receipt of the copy of the order. On failure of compliance of this order, the appellant is entitled to recover 9% interest per annum from the 1st and 2nd respondents, from the date of filing of the complaint.
The office is directed to send a copy of the order with L.C.R. to the Forum below.
A. RADHA : MEMBER
St
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL No.674/12
JUDGMENT DATED 15.02.2013
st
