BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/02/2011

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 98/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant is the registered owner of the Tata Indigo Manza car bearing Registration No. KL-32-B-9099. The complainant purchased the car from the 2^nd opposite party on 25-09-2010, which was manufactured by the 1^st opposite party at a price of Rs. 6,11, 947/-. The vehicle showed the following serious defects, when the vehicle had plied only 3000 Kms.

1. Leakage of engine,

2. Rusting of dicky, bonnet and doors.

3. Defective power window.

4. Unbearable noise while turning right.

5. Below par cooling system.

6. Defective brakes.

The complainant caused e-mails to the opposite parties on 11-01-2011 and 15-01-2011 highlighting his grievances. Since, there was no response, she caused to issue a lawyer notice on 17-01-2011 to which as well there was no response. Thus, the complainant is before us seeking direction against the opposite parties to replace the vehicle with a new one, to get refund of the price of the vehicle and also to get Rs. 1,00,000/- towards compensation and costs of the proceedings. This complaint hence.

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

The complainant is not a consumer within the ambit of the Consumer Protection Act. The complainant pointed out certain defects of the vehicle during the 1^st service. The service personnel of the 2^nd opposite party had conducted a detailed inspection of the vehicle and did not notice any major complaint in the vehicle as alleged by the complainant. Such of those complaints noticed being minor in nature had been attended to, to the satisfaction of the complainant. Though the complainant took delivery of the vehicle expressing satisfaction over the work done, subsequently, the complainant contacted the 2^nd opposite party over telephone and once again complained that the earlier complaints had not been rectified. She had been requested to bring the vehicle to the workshop of the 2^nd opposite party, so as to enable them to carry out a thorough inspection. She had brought the vehicle only on 18-02-2001. The service personnel had once again carried out a detailed inspection of the vehicle and such of those complaints noticed in the vehicle being minor in nature, attended to the satisfaction of the complainant. The complainant has no cause of action against the opposite parties and she is not entitled to get any of the reliefs as prayed for.

3. The 2^nd opposite party filed a separate version raising the similar contentions that of the 1^st opposite party.

4. No oral evidence was adduced by the complainant. Exts. A1 to A7 were marked. The witness for the 1^st opposite party was examined as DW1. Neither oral nor documentary evidence was adduced by the 2^nd opposite party. The expert commissioner was examined as DW2 and his report was marked as Ext. C1. Heard the counsel for the parties.

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

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get replacement of the vehicle?

3. Whether the complainant is entitled to get refund of the price of the vehicle?

4. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

6. Point No. i. :- Apart from the contentions alone of the opposite parties that the complainant is not a consumer, nothing is forthcoming on their part to substantiate the same. Rejected hence.

7. Point Nos. ii. & iii. :- Admittedly, the complainant purchased a Tata Indigo Manza car from the 2^nd opposite party, which was manufactured by the 1^st opposite party at a price of Rs. 6,11,947/- evident from Ext. A1 tax invoice. According to the complainant, the vehicle suffers from inherent manufacturing defects and in spite of repeated requests and Ext. A5 lawyer notice, the opposite parties failed to attend to the same and she is entitled to get replacement of the vehicle as well as to get refund of its price. The opposite parties maintain that the vehicle is free from any defects and as and when the complainant approached the 2^nd opposite party with certain complaints, they have rectified the same to the satisfaction of the complainant.

8. At the instance of the complainant, an expert commissioner was appointed by this Forum. The expert commissioner was examined as DW2 and his report was marked as Ext. C1 which read as under :-

“1. Whether the vehicle in question is defective with the following defects :

a. Engine Leakage

At the time of inspection there was no engine oil leakage found.

b. Rusted Dickey Bonnet and Doors.

I found that the following body parts are rusted.

1. Dickey inner side joints.

2. Rear left hand side door vertical side joints;

3. Front left hand side door vertical side joints.

4. Front left hand side door bottom edge joints.

5. Left hand side fender side edge joints.

6. Right hand side fender top edge joints.

7. Bonnet inner side joints

8. Fuel lid left edge.

9. A.C. Condenser front side bracket.

c. Defunct power window.

Power window is found functioning properly.

d. Unbearable noise while turning full right.

No abnormal noise noticed while running at different road conditions-steep gradient roads, mud roads etc.

e. Below par cooling system.

Atmospheric temperature at the time of inspection was 29°C. Duct grill temperature was found 9°C at 900 r.p.m. while engine was idling. Temperature is 8°C while the vehicle was running and the engine speed at 2000 r.p.m. I also had checked the grill temperatures at different engine speeds while vehicle was running and found that the lowest temperature was still 8°C. The minimum required cut off temperature is 5 to 6°C. Duct grill temperature is proportional to the inside room temperature of the vehicle. So I found that the cooling system does not attain the sufficient cooling effect. Hence it is below par cooling.

f. Defective brakes

On road brake test was conducted at different vehicle speeds and at different road conditions; and the breaking efficiency was found satisfactory.

2. Whether the aforesaid defects are manufacturing defects?

Regarding 1 (b): The rusting of body parts at various points is only caused either due to material defect or faulty painting. Since the vehicle is a new one the corrosions are not due to rough use of the vehicle or climate conditions.

Regarding 1 (c) : The low cooling efficiency is attributable to poor compressor functioning or leakage of refrigerant at any critical points

In either case the complaints are attributable to manufacturing defect.

3. Any other relevant point in the matter.

Nil.”

9. The opposite parties vehemently disputed the findings of the expert commissioner stating that he has not adopted any scientific test to arrive at the conclusion in Ext. C1. The expert commissioner deposed that he tested the cooling of the air conditioner by placing a thermometer on the grill. He also deposed that there is no scientific methods to identify rusting. During his examination, further he clarified that the cooling complaint of the air conditioner can be rectified by replacing it. According to him, if the body of the rusting part is not corroded the same can be rectified by painting.

10. No reason is on record to reject or set aside the findings of DW2 in Ext. C1, especially when the opposite party neither submitted work memo before the commissioner nor requested to conduct scientific tests. It is to be noted that the defects have been caused within a short span of use of the vehicle. The Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (2006) 4 SCC 644, held that if the defects of the vehicle can be rectified by replacement of the defective parts, the replacement of the vehicle as such is not warranted. The above decision of the Apex Court squarely applies in this case.

11. The Hon'ble Supreme Court's decision is upheld and the reliefs are already met nothing further on that is so called for.

12. Point No. iv. :- Taking into consideration, it is only a fact that the complainant has been put to personal inconveniences, mental agony as well as some monetary expenditure, which calls for compensation and costs of the proceedings. We fix it at Rs. 10,000/-.

13. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall jointly and severally replace the defective air conditioner of the complainant's car with a brand new one.

2. The opposite parties shall jointly and severally repaint the entire body of the complainant's car after fully going through the necessary legal formalities for the same. During the said process, if the body of the car is corroded and if it cannot be rectified by painting replace the entire body of the car to the satisfaction of the complainant. The complainant is free to be present at the time of the above operation and she or her agent shall not be obstructed.

3. The opposite parties shall jointly and severally pay Rs. 10,000/-(Rupees Ten thousand only) to the complainant towards compensation and costs of the proceedings.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 21^st day of December 2013.

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 :: Nil

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