BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 12/12/2011

Date of Order : 31/01/2013

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 685/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :-

On 23-05-2009, the complainant purchased a TATA INDICA VISTA car from the 1^st opposite party from the 2^nd opposite party, which was manufactured by the 1^st opposite party at a total price of Rs. 4,80,369/-. At the time of purchase, the 2^nd opposite party offered Rs. 4,000/- towards discount applicable to Central Government employees by way of corporate bonus. The opposite parties did not pay the same. The complainant had notified the 1^st opposite party the following irregulairities, defects and flaws in the vehicle and moreover, deficiency in service which have not been rectified till date in spite of repeated requests.

1. The manufacturing year of all the 5 tyres are found to be 2008.

2. All the glass and mirror items were manufactured in 2008.

3. Poor head lamp visibility (replaced within the warranty)

4. Low mileage of 13 kmpl against 22.4 kmpl as assured by the opposite parties.

5. Tyres became defective when the vehicle just covered 14000 kms.

6. Pitting and Corrosion indicating careless use prior to sale.

7. Power window switch is not working.

8. The vehicle was fitted with low quality and defective spares.

9. Vibration of steering and rattling of whole body.

10. Brake pedal without accelerating manually gets self accelerated.

Thus, the complainant is before us seeking the following reliefs against the opposite parties :

1. To direct the opposite parties either to replace the car with a new one or to refund its price with interest together with insurance and registration charges.

2. To direct the 2^nd opposite party to pay the corporate bonus of Rs. 4,000/- with interest @ 12% p.a. till payment.

3. To pay compensation of Rs. 2 lakhs and costs of the proceedings.

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

The complaint is barred by limitation. The complainant is not a consumer within the ambit of Section 2 (1)(d) of the Consumer Protection Act. The vehicle is free from any manufacturing defect. During the period from 17-10-2009 to 21-05-2011, whenever the complainant had taken the vehicle to any of the authorised workshops with any complaint, they had rectified such of those complaints to the satisfaction of the complainant. The mileage in a vehicle would vary from vehicle to vehicle depending upon the driving habits of the driver, proper servicing of the vehicle, condition of the roads etc. the complainant has no cause of action against the 1^st opposite party. The complaint is liable to be dismissed.

3. The defense of the 2^nd opposite party :

The only averment alleged against the 2^nd opposite party is concerning a denial of discount on 23-05-2009 for an amount of Rs. 4,000/-. The transaction is hopelessly barred by limitation as per Section 24 A of the Consumer Protection Act. The 2^nd opposite party paid the amount to the complainant along with other additional benefits. The 2 year warranty expired on 22-04-2011. So, the complaint is barred by limitation. The 1^st opposite party is liable for the manufacturing defects, if any of the vehicle and the 3^rd opposite party is liable for the alleged deficiency in service on their part. After the sale of the car on 23-05-2009, the 2^nd opposite party had not provided any of the services requested by the complainant. The complaint is devoid of any merits and is liable to be dismissed.

4. The contentions of the 3^rd opposite party is as follows :

The defect of the power window switch was rectified by the 3^rd opposite party. The normal rattling and vibration which occur due to the bad road conditions were rectified. The alleged trouble regarding the accelerator was found to be a problem with the cable and the same was also rectified. The complaint regarding low fuel efficiency was thoroughly checked and fuel mileage test were conducted and he had been fully satisfied with the test results. All the complaints pointed out by the complainant in his vehicle were thoroughly checked and rectified by the 3^rd opposite party and the complainant was fully satisfied at the time of taking delivery. The allegations of the complainant are against the 1^st and 2^nd opposite parties. The complaint against the 3^rd opposite party is only liable to be dismissed.

5. The complainant was examined as PW1 and Exts. A1 to A7 were marked. The witness for the 2^nd opposite party was examined as DW2 and Exts. B1 to B3 were marked. The witness for the 1^st opposite party was examined as DW1. Neither oral nor documentary evidence was adduced by the 3^rd opposite party. The export commissioner' s report was marked as Ext. C1. Heard the complainant who appeared in person and the learned counsel for the opposite parties.

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

1. Whether the complainant is a consumer?

2. Whether the complaint is barred by limitation?

3. Whether the complainant is entitled either to get replacement of the car or to get refund of its price with interest?

4. Whether the complainant is entitled to get corporate bonus from the 2^nd opposite party?

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

7. Point No. i. :- From the cases that are brought before this Court, it seems that the opposite parties take a fancy to contend or to argue that the matter in question does not come within the purview of the Consumer Protection Act. Few are the instances, when they have been allowed. Here is a case which comes squarely within the purview of the Consumer Protection Act. Uncontrovertedly.

8. Point No. ii. :- Admittedly, the complainant purchased the vehicle on 23-05-2009 with 2 years warranty. The date of purchase of the vehicle cannot be considered as the date of cause of action, especially since there is an additional 2 years warranty continuing which binds the parties contractually and legally. So, it is clear that there is no expiry of the warranty period as claimed by the opposite parties. The approach of the complainant within the purview of Section 24 A of the Consumer Protection Act is so sustained.

9. Point No. iii. :- The complainant purchased the car in question from the 2^nd opposite party on 23-05-2009, which was manufactured by the 1^st opposite party and purchased at the cost of Rs. 4,70,369/- evidenced by Ext. A1 tax invoice. A two year warranty has been provided to the vehicle by the 1^st opposite party evident from Ext. A5 warranty terms and conditions.

10. According to the complainant, the vehicle suffers from inherent manufacturing defects for reasons stated and he had to run from pillar to post to get his grievances redressed. It is contended that in spite of repeated requests and reminders, the opposite parties failed to rectify the defects of the vehicle.

11. The opposite parties vehemently and vigorously argued that the vehicle is free from any defects and as and when the complainant approached the 3^rd opposite party to get the defects rectified, they duly attended to the same and rectified them to the satisfaction of the complainant. The learned counsel for the 1^st opposite party relied on the following decisions rendered by the Hon'ble Apex Judiciary :

1. State of Himachal Pradesh Vs. Jai Lal & Ors. AIR 1999 Supreme Court 3318.

2. Maruti Udyog Ltd. Vs. Suseel Kumar Gangotra and Another (2006) 4 Supreme Court Cases 644

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

4. Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr. III (1999) CPJ 28 (SC).

12. The complainant and the witnesses for the 1^st and 2^nd opposite parties deposed in tune with their respective contentions. The oral testimony of these witnesses cannot help this Forum to dispose of this complaint, because they are prima-facie unilateral. At the instance of the complainant, an expert commissioner was appointed by this Forum. His report was marked as Ext. C1. While admitting Ext. C1 in evidence, the 1^st opposite party orally raised objection against the report though failing to file their objection. Belatedly, the 1^st opposite party filed objection against Ext. C1 which this Forum need not consider, especially for lack of even a delay condonation petition. In short, Ext. C1 was accepted in evidence as per law. Ext. C1 reads as follows :-

“Details of inspection :

1. Determine the fuel efficiency against 22.4 kms/1 assured by advertisements in leading dailies and representations by the opposite parties.

    

   The fuel efficiency is tested between Vembayam and Chadayamangalam in the MC road. During the initial and final diesel filling at Vempayam fuel pump, lot of entrapped air found coming out from fuel tank. The diesel was filled full tank at Vembayam and the vehicle driven by Mr. Jacob Koshy – AGM Service, Mohandas Motors, Thiruvananthapuram to a distance of 67.3 km. The diesel 3.57 litters is again filed at the same fuel pump at Vembayam to fill the tank. The fuel efficiency is 67.3/3.57 = 18.85 KMPL.

   The KMPL for the vehicle published in the advertisement is 22.4 where as the actual found is 18.85 which is less than the advertised.

2. Assess the year of manufacture of all the 5 tyres of the car and its condition and report whether the tyres worn out disproportionate to the use of the vehicle. Normally what should be the life of a tubeless tyre? How much kilometre it will cover?

    

   All tyres are printed with manufacturing year Dec.08. The life of the tyre is depend up on condition of the vehicle, road and driving condition however for a new private vehicle more than 45000 km can obtain.

    

3. Determine whether all the glass and mirror items of the car show '2008' as the year of manufacturing.

   In all the glasses, .....08 is printed.

    

4. Report whether different parts of the Body of the vehicle showed pitting and corrosion indicating careless use prior to sale, verify through service history. Note the number of parts replaced due to corrosion within an year.

The following parts of the car found corroded.

1. Bottom side of rear left door, both internal and external portions (page c & d).

2. Between rear left door and the running board up to the back wheels side (page b & c).

3. Left door rubber beading is projected in two places due to internal corrosion (page d).

4. All door switch mounting assemblies (at 4 Different location) (Page h).

5. All door locking clamps are corroded (at 4 Different location) (page h)

6. Right front door bottom corner (page i).

7. Right front door glass assembly welded joint (page i)

8. Right back door mounting hinges.

9. Right back door child lock assembly mounting (page i)

10. Dickey door upper portion near the glass assembly (page b)

As per the service history provided by Mr. Jacob Koshy – AGM Service, Mohandas Motors, Thiruvananthapuram, The following parts of the car found replaced under warranty due to corrosion and poor performance.

1. Left rear door panel

2. Right rear door panel

3. Dicky balancer assembly (2 Nos.)

4. Head light assembly both left and right.

5. Fog lamp assembly both left and right.

e) Report whether Power window switch is working

properly or not and check whether replacements made.

The LED on the switches are not functioning and left rear Power window switch is not working properly. As per service history it has been replaced more than one time.

f) Whether the service history data provided by TATA, the manufacturer showing parts replaced by M/s. Mohandas Motors is true while inspecting the age of the so replaced. And also note whether on the reported date the vehicle was in the custody of the consumer or in the works of the dealer.

On 4-5-2011, a service history in the computer printed format is provided by Mr.Jacob Koshy – AGM Service, Mohandas Motors, Thiruvananthapuram. It is showing that eight items are replaced, but the customer told the vehicle was not admitted to any of the workshops for service. Mr. Jacob Koshy – AGM Service, Mohandas Motors, failed to produce the particular job card having signature of the customer.

g) Whether the vehicle was fitted with low quality and defective spares and function properly and satisfactorily.

Some of the parts like front driver and passenger side rear view mirror adjusting handle system found to be attacked by fungus and many parts of the car found to be corroded.

h) Note whether severe Vibration of steering and whole body rattling exists.

Front portion having severe Vibration of suspension and steering.

i) Whether the car get self accelerated, if brakes are applied and the brake pedal released without accelerating manually and report as to its dangers.

The car get self accelerated, if brakes are applied and the brake pedal released without accelerating manually. During city driving in heavy traffic, this type of sudden acceleration may lead to accidents.

j) Whether head lamp is found replaced on 3^rd November 2009 or not within the warranty as per records and reason thereof.

As per service history, head lamp is found replaced on 3^rd November 2009 due to poor visibility. It is because of the covering on the glass which cannot be remove manually.

k) Whether the time stipulated for wheel balancing and alignment noted in the owner's Manual at 20,000 KM is technically justified.

The owner's manual shows the wheel rotation to be done at 20,000 KM.

l) Any other matter, which may be brought to the attention of the commissioner during inspection.

The vehicle condition, the service quality and customer relation are found very poor.

Summary

The vehicle fuel efficiency is not satisfying the advertisement value. The vehicle corrosion is very high.

Only one tyre showing abnormal wear, it is fitted in the spare condition but vehicle history is not having major wheel unbalance problem, again there is no tyre having similar wear hence the original tyre might have been replaced.

The vehicle condition, the service quality and customer relation are very poor.”

13. The expert commissioner has filed a comprehensive and exhaustive report including the photographs of the defective part showing the excessive corroded parts of the vehicle to go apart, we highly appreciate the extend to which he has gone in preparing Ext. C1. The opposite parties did not have a case that the defects of the car as noted in Ext. C1 can be repaired or rectified. So, the decision rendered by the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (Supra), does not apply in the case at hand because it is not just one part that has got to be repaired or replaced. Moreover, the fuel efficiency of the car is only 18.85 Kmp/ as against 22.4 Kmp/ as provided by the opposite parties in Ext. A4 advertisement. There is no answer to this point either from the opposite parties. The 1^st opposite party having failed to controvert any of the points made out in Ext. C1 compels this Forum to accept Ext. C1 as conclusive compulsively. The 1^st opposite party even failed to respond to Ext. A7 series communications before approaching this Forum for reasons not explained or stated. On an overall evaluation of evidence on record, the circumstances of the case and the findings of the expert commissioner in Ext. C1 go to show that the vehicle of the complainant suffers from inherent manufacturing defect. The complainant is entitled to get a hassle free vehicle instead of the vehicle under dispute. Since the complainant had plied the vehicle for 25000 Kms., he has to bear 10% of the price of the vehicle by way of depreciation.

14. Point No. iv. :- The 2^nd opposite party dealer contended that they have paid the corporate bonus to the complainant. But nothing is on record to show that they have paid Rs. 4,000/- to the complainant towards corporate bonus. The complainant is entitled to get the same from the 2^nd opposite party.

15. Point No. v. :- The grievance of the complainant having been met squarely and adequately, we refrain from ordering compensation and costs of the proceedings.

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

1. The 1^st opposite party manufacturer shall replace the car of the complainant with a new one according to the choice of the complainant. The complainant is directed to pay 10% of the price of the value as per Ext. A1 to the 1^st opposite party. The difference in price shall be met by the complainant or the 1^st opposite party as the case may be. The complainant is also directed to return the defective car to the 1^st opposite party simultaneously at the cost of the 1^st opposite party.

2. The 2^nd opposite party shall pay Rs. 4,000/- to the complainant towards corporate bonus with interest @ 12% p.a. from the date of purchase of the car till realisation.

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 31^st day of January 2013.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, 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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