By Smt. C.S. Sulekha Beevi, President,

Complainant is aggrieved by the defects to Chevrolet-Travera vehicle purchased from second opposite party. First opposite party is the dealer of the vehicle at Calicut and third opposite party is the manufacturer.

1. Facts:-

Complainant purchased a new Chevrolet Travera vehicle and took delivery of the same from second opposite party. Though the purchase price was paid on 31.08.2006 the delivery of the vehicle was delayed. Opposite parties offered 2 years warranty. Within days of purchase the vehicle exhibited jerking and vibration. The complaint was reported to second opposite party. The foreman/supervisor who checked the vehicle also said that there is vibration. He said that they would consider and get it rectified in the next service. Complainant reposed confidence in this representation and took delivery of the vehicle after service half heartedly and continued to use the vehicle. During the second service also the very same complaint was reported. The mechanic checked the vehicle and drove the vehicle for a considerable distance. Then some parts of rubber tubes were inserted in the leaf set. The mechanic then told the complainant that the vehicle can now be driven smoothly. Within a short time these rubber tubes got worn off and the defect again appeared. Complainant reported the defects and informed opposite party his inability to continue with the vehicle. He requested for replacement. He was consoled saying that opposite party has ordered for a new leaf set and on replacing the leaf set the defect can be rectified. As the vehicle could not be driven smoothly it was taken to second opposite party who kept the vehicle in their garage for observation for 3-4 days. On 26-10-2006 opposite party informed that the vehicle is ready after service. Complainant had to pay Rs.8,071/- as service charges. Though leaf set was added and leaf beading was done no extra amount towards this was collected from the complainant. This is because the vehicle had manufacturing defects. The person who was in charge of the service department Sri. Thameem, made an endorsement on the bill to the effect that the grievances of the complainant are not rectified/satisfied. Sri. Thameem then told that the defect may be to the chassis. The matter has been reported to the manufacturer and that opposite party will let know if any replacement is needed in regard to this. But complainant did not receive any communications from opposite party. Complainant was constrained to use his vehicle due to his pressing needs. The vehicle was again serviced on 07-11-2007. But the manufacturing defects were not attended or rectified. On 28-07-2008 while going to Cochin the vehicle collided with a Maruthi car and sustained damage. The accident occurred due to manufacturing defects of the vehicle. On 31-10-2011 complainant was informed that the vehicle is ready after accident repair. Complainant was asked to take delivery of the vehicle. Opposite party demanded to pay Rs.16,000/- towards repair charges. Complainant paid the amount for which a receipt with No.208000 dated, 31-10-2008 was issued. The endorsement made by the Service Manager, Sri. Sandeep.R.Nair would show that the vehicle has inherent manufacturing defects. Apart from this complainant had to spend Rs.17,786/- towards service charges. The vehicle is still in the garage of second opposite party from 30-10-2008 onwards. On 04-11-2008 complainant send an e-mail to third opposite party stating all these details. Third opposite party replied that they are taking steps to rectify the defects. Till date nothing is done to rectify defects. Complainant then issued a lawyer notice to opposite parties together with the e-mail addressed to third opposite party. First and second opposite parties send reply stating untenable contentions. Third opposite party did not reply. Hence this complaint praying to direct opposite parties to replace the defective vehicle with a new one or in the alternative to pay the purchase price that as paid by the complainant together with interest and costs.

2. First and second opposite parties filed a combined version. It is admitted that complainant purchased a Chevrolet Travera vehicle on 31-08-2006. Opposite party denied the allegation of delay to deliver the vehicle. It is stated that the vehicle was delivered on 06-9-2006. Opposite party admits that the vehicle has a two years warranty or 50,000 Kms whichever is earlier. Complainant has taken delivery after inspecting the vehicle and being fully satisfied. The allegation that within days of purchase there was jerking/vibrating and that the complaint was promptly reported to second opposite party is denied. The allegations regarding the defects and manufacturing defects are specifically denied. Opposite party submits that the vehicle was brought for service on 07-11-2007. On that date the vehicle was brought for it's 25000 KMs service to the service center of second opposite party. No major complaints were reported for the vehicle. The vehicle was returned to the complainant on the same day itself. After 07-11-2007 the vehicle was brought to the service center of second opposite party for an accident repair on 30-07-2008. Complainant reported that on route Cochin the vehicle collided with another car and sustained damage. The vehicle was seriously damaged. Second opposite party repaired the vehicle and informed the complainant to receive the vehicle after paying the cost of repair. But for reasons best known to the complainant, he did not take delivery of the vehicle after repair even after repeated reminders. The vehicle is still in the service center of second opposite party. Opposite parties then received a lawyer notice. A proper reply was send. There is absolutely no manufacturing defect to the vehicle. After purchase of the vehicle on 31-8-2006, the complainant put the vehicle to maximum use. When the vehicle was brought for accident repair on 30-7-2008 the vehicle had completed 51520 Kms of running. This means the vehicle covered about 75 Kms on an average per day. No vehicle with inherent defect would run for such aggregate mileage on sustained basis. The complainant used the vehicle extensively and at the same time did not bother to do regular services of the vehicle. From 07-11-2007 till 30-7-2008, the date on which the vehicle was entrusted for accident repair, the vehicle was not brought to these opposite parties for it's regular service. The warranty is applicable strictly as per conditions in the warranty agreement. The booklet was supplied at the time of delivery of the new vehicle. Complainant did not do the periodical services.

3. After purchase of the vehicle it was first brought for service to second opposite party on 20-10-20006 for accidental repair. The work done was Rear LH Quarter panel denting and painting. At that time the vehicle had completed 1867 Kms. Complainant had not done the first service of the new vehicle which ought to have been done on completion of 1000 KMs. Complainant told opposite party that he is not in a position to entrust the vehicle for the first service on that day as he is busy. Complainant then brought the vehicle for the first compulsory service only on 31-01-2007. No complaints were reported by the complainant when the vehicle was entrusted for the first service. He received back the vehicle on the same day. He signed the job card as fully satisfied. The second compulsory service was to be done on completion of 5 months or 5000Kms whichever is earlier. But he brought the vehicle for second service only after completion of 6580Kms. At that time no major complaints were reported. He received back the vehicle on the same day. The third compulsory service was to be done on completion of 10000 KMs. But he brought the vehicle on 03-04-2007 and the vehicle had covered 12066 KMs. No major complaints were reported. The fourth service was done on 05-05-2007. Even though it was to be done at 15000 KMs, the vehicle was brought after completion of 17,604 KMs. As per the request made by the complainant an additional leaf was added to the leaf spring sets to make the vehicle more comfortable when overloaded and driving on rough roads. The allegation that the leaf set was fully replaced is not at all true. The vehicle was brought for 5^th service on 24-10-2007. This service ought to have been done on completion of 20,000/- KMs. But the vehicle was brought after completing 20,103 KMs. The complaints reported were front body noise, low A/c cooling and unusual noise while starting the vehicle in the morning. He also requested to do the roof cleaning. The vehicle was promised to be returned on 29-10-2007. On inspection it was found that noise in the morning was because of loose A/c fan belt. It was checked and corrected. Leaf bending was done. The vehicle was ready after servicing on 26-10-2007. Though it was informed to the complainant, he came to take back the vehicle after service only on 29-10-2007. At that time opposite party advised to do the wheel alignment and wheel balancing. He refused to heed to the advice. On 29-10-2007 while taking the vehicle he told the mechanic that there was a pulling towards the right side which he forgot to report. The mechanic told that no such complaint was noticed while checking and told that he could bring again if he experienced any such complaint. When the vehicle was entrusted for the service at 25000 Kms the complainant was happy and did not report any complaints. The 6^th service was done on 07-11-2007 when the vehicle had completed 25000 Kms. Service was done and vehicle returned to the complainant the same day itself. On this occasion also opposite party advised to do the wheel alignment and balancing. This is necessary for smooth running. Complainant has not done the wheel alignment and balancing from it's 20000 Kms. After servicing on 07-11-2011 the vehicle was not brought to opposite parties for the services to be done at 30,000 Kms, 40,000 Kms, 45,000 Kms. and 50,000 Kms. These services are conditions of the warranty. The vehicle was last brought to second opposite party on 30-07-2008. It was for the last accident repair. By this time the warranty had expired, on checking it was noticed that the four bushes that connects the chassis with the body of the vehicle are misplaced. The reason was the poor maintenance of the vehicle. If the complainant had brought the vehicle in time for service, the same would have been noticed and rectified by second opposite party. It was due to the negligence on the part of the complainant to do periodical services. This was explained to the complainant. But he took an adamant stand that the misplacement of bushes is due to manufacturing defects. The Service Manager Sri. Sandeep.R.Nair explained to him that the bushes were misplaced either due to accident or due to poor maintenance of the vehicle. Complainant was in no mood to accept the reality and insisted to get something in writing to the effect that he had made a complaint of manufacturing defect. In order to end the unnecessary arguments, Sri. Sandeep.R. Nair, finally agreed to give an endorsement on the receipt that a complaint had been made regarding manufacturing defect. The complainant is now trying to exploit the endorsement alleging that second opposite party has admitted manufacturing defect. That no vehicle with manufacturing defect can be used to run 51,520Kms, in less than two years time. Even without timely services the vehicle has covered 51,520Kms. The defects if any are due to poor maintenance. There has been no deficiency. Even though complainant flouted the warranty conditions opposite parties have never refused the benefits of warranty during warranty period. The complainant is only trying his luck to reap undue advantage by raising false allegations. The vehicle met with accident only due to carelessness and negligence of complainant. There is no manufacturing defect and that complainant is not entitled for any reliefs.

4. Third opposite party filed a separate version denying the allegations. It is admitted that third opposite party is the manufacturer and also admits the warranty issued for the vehicle. The services were done by second opposite party. That from second opposite party it is known that the vehicle came for first service/repair on 20-10-2006 and that too after an accident. Therefore the contention of the complainant that there was jerking/vibrating within a few days of purchase is untrue. Complainant brought the vehicle for service after completing 1000Kms. He had not whispered any thing about the allegations now raised by him. The second free service was done on 03-04-2007. The vehicle had covered a distance of 12000Kms. The vehicle alleged to have manufacturing defects was not brought to second opposite party reporting any defects except for the free services. The first time the complainant reported complaint of noise from rear side was on May, 2007. The vehicle then had run17,600Kms. An overall evaluation was made by second opposite party and an additional leaf was placed. This can not be construed as defect to the vehicle or manufacturing defect. The vehicle has thereafter reported for paid service on October, 2007. The vehicle had then covered 20100Kms. Even then the complainant has not lodged any sort of complaint. The vehicle again reported for paid service after successfully completing 25,000Kms. There was no complaint about the overall performance of the vehicle. Thereafter the vehicle was not brought for service or repair to any of the serving centers of third opposite party for a period of about 8 months. Then after running another 25,000Kms. The vehicle was brought for accident repair. After repair the complainant was informed to take delivery of the vehicle. Complaint came and took the vehicle for test drive and he was satisfied. He also made an endorsement that he is satisfied and is taking delivery of the vehicle. However for reasons best known to him he changed his mind and left the vehicle with second opposite party. Complainant has thereafter not turned up to take the vehicle despite several reminders. Thereafter complainant chose to saddle opposite parties with wild accusations. Complainant has not done the necessary periodical servicing of the vehicle. The complainant is under misconception that putting a leaf set would amount to inherent manufacturing defect. It is noteworthy that the leaf was added after the vehicle had covered 17,6000KMs. The amounts collected from the complainant was for overall servicing and not for replacement of any parts. As for the endorsement of Sri. Thameem it is stated that it has no binding nature to third opposite party as Sri. Thameem is not an employee under third opposite party. The contention that the accident occurred due to mechanical defect, that too after such prolonged use of the vehicle is denied as false and unsustainable. On receiving e-mail third opposite party had instructed second opposite party to do the needful. Third opposite party has left no stone unturned to make the complainant realize the actuality and to take delivery of the vehicle. The relief sought cannot be granted as the allegations are false. Complainant is only trying to take benefit of the low court fee. The complaint is an illustration of exploitation of process of law.

5. Evidence consists of the oral evidence of complainant who was examined as PW1. Exts. A1 to A9 marked for him. Ext.C1 is the report of expert Commissioner. DW1 was examined on behalf of first and second opposite parties. Exts.B1 and B2 marked for them. DW2 was examined for third opposite party and Ext.B3 and B4 marked for third opposite party.

6. Points for consideration:

1. Whether opposite parties are guilty of committing unfair trade practice or deficiency ?

2. If so,reliefs and costs.

7. Point(i):-

According to the complainant the vehicle exhibited jerking/vibrations within days of purchase. This allegation is stoutly denied by opposite parties contending that the complainant had not reported any such defects and that the vehicle was brought to the service center first time only on 20-10-2006 for attending an accident repair. The work done on that day was, rear LH Quarter panel denting and painting. The vehicle had then completed 1867Kms. The first free service of the vehicle ought to have been done on completion of 1000KMs. It is submitted by opposite parties that when this aspect was brought to the notice of complainant he said that he was not in a position to entrust the vehicle on that day, for it's first service and told that he would bring the vehicle on another day. The complainant then entrusted the vehicle for first free service on 31-01-2007. It is further submitted that the complainant had not reported any complaints while entrusting for first free service. Ext.B2 is the computerized Vehicle History Card produced by first and second opposite parties. On perusal of Ext.B2 it is seen that the vehicle was brought for accidental repair on 20-10-2006 and on this day Rear LH Quarter panel dent and painting was done. It is also noted that the vehicle had covered 1867 Kms. prior to this the vehicle was brought on 06-9-2006. The vehicle then had covered 12KMs. On this day Floor mat and mud flap were fitted. The vehicle was brought on 31-01-2007 for reassurance check up. The vehicle then had covered 1870 Kms. The vehicle was delivered after service on the same day. The first free service is noted to be done on 01-02-2007. The vehicle had then covered 6580 KM. The details of job to be done noted on this day are: check a/c cooling, check hand brake, check seat sound and door sound, do 5000Kms service, fix chrome m plate properly. Wheel Alignment and Wheel balancing was done. The vehicle was next brought on 03-04-2007 for second free service. The vehicle has then covered 12,066 Kms. The main jobs noted are check rear sound, check door sound. The vehicle was then reported for paid service on 05-5-2007. The vehicle had covered 17,604 KMs. The jobs noted are add additional leaf, de -carbonizing. Ext .B2 document reveals that the contentions put forward by second opposite party regarding repair/service is consistent with the submissions made by opposite parties in the version and counter affidavit. The complainant does not deny that the vehicle was taken for repair due to accident two months after purchase. So also there is nothing to show that he had approached opposite parties after purchase of vehicle repeatedly complaining of jerking/vibration. Apart from the schedule/periodical services the complainant has not taken the vehicle for any repairs to opposite parties except for the accident work. If the vehicle had inherent manufacturing defect from the date of purchase making it impossible for the complainant to use the vehicle satisfactorily, then definitely the vehicle would have been taken for repairs in between the free and paid services. So also he would not be able to use the vehicle so extensively.

8. To establish defect of vehicle complainant contends that, when the vehicle was taken for service on 05-5-2007 after the vehicle covered 15000 Kms, the leaf set was replaced . This contention is controverted by opposite parties stating that leaf set was not replaced, but that only an additional leaf was added. That this was done not due to any defect to the vehicle but only on customer request to carry heavy load in rough roads. That opposite parties have not charged him for this. On perusal of Ext.B2 it is seen that on 05-5-2007 additional leaf was fitted. Thereafter service was done only on 24-10-2007 which was paid service at 20,000Kms (5^th service). The vehicle had covered 20103 Kms. It is seen noted as wheel balancing and alignment not done. After servicing the vehicle was returned to complainant and thereafter the vehicle was brought for service only on 07-11-2007. The vehicle had then covered 25007Kms. No specific complaint is seen reported on that date in Ext.B2. Complainant has not specifically stated that he reported any defects on this date. It can only lead to the conclusion that the vehicle was running smoothly or that the addition of a further leaf was not due to any major defect. Thereafter on further dates when the vehicle was brought by complainant for service it is seen noted as wheel balancing and alignment not done. On perusal of the history of the vehicle as exhibited in Ext.B2 there is not even a single occasion when the complainant has taken the vehicle to opposite party other than the periodical services. If the vehicle had any major complaint as alleged making the complainant totally abandon the vehicle as he has done in this case, the vehicle would have undergone repeated repairs. Complainant has not produced any documents in this regard. Apart from the vague allegation there is nothing to substantiate that the vehicle was repeatedly defective and repeatedly repaired.

9. It is also the case of the complainant that opposite party inserted rubber bushes between the leaves. That this was done by opposite party due to manufacturing defects of the vehicle. He also contends that Sri. Thameem who worked in second opposite party service center had endorsed to the effect that the customer complaints are not rectified and that the vehicle is kept for observation. Complainant lays further thrust on a letter issued by Sandeep.R.Nair attached to second opposite party service center which is Ext.A9.

10. Ext.C1 is the commission report submitted by the Assistant Motor Vehicle Inspector who was appointed as Commissioner in this case. He has reported that no abnormal or excessive noises, vibration or jerking was found in the vehicle. His observations are as under:

“Complaint of petitioner : Excessive Vibration and Jerking in the Vehicle

OBSERVATIONS. On Stationary Inspection and Test Drive the following were noticed

a) ENGINE: The Engine was found working satisfactorily. No abnormal sounds or vibration were noticed. There was no loss of Power or Torque.

b) DRIVE TRAIN: The gears and the drive were working perfectly. No abnormal sound or vibration noticed

c) BODY: No dents or cracks noticed. No abnormal sound or vibration noticed d) CHASSIS: No cracks, dents, misalignment or any damage noticed on visual inspection. No abnormal sounds or vibration were noticed.

e) STEERING SYSTEM: The steering system was found working satisfactorily. No abnormal sounds or vibration noticed.

f) SUSPENSION SYSTEM: The suspension system was found working satisfactorily. No abnormal sounds or vibration were noticed.

g) TYRES: the front tyres were partially worn-out, the rear tyres were completely worn out.

h) A set of twelve rubber bushes placed at various points in between the Chassis and Under Body were found to be replaced with a set of new ones. On one bush on the right side of the vehicle, the top part of the rubber bush was found to be misplaced while fitting. Pieces of rubber were seen fitted in between the leaves of both rear leaf sets.

i) On inspection of the twelve replaced bushes, submitted by the petitioner, it is seen that none of the bushes were worn out, cracked, damaged, or deformed”

11. It was argued on behalf of opposite parties that the complainant was an insatiable customer and was making repeated complaints though he was using the vehicle well. The documents relied by complainant are Ext.A6 and A9. On Ext.A6 which is an invoice issued on 26-10-2007 after the service at 20013 Kms, it is seen endorsed by Sri. Thameem as “Customer complaint was rear side jumping on normal and rough roads. Additional leaf added, leaf beading done. Customer test drive. Customer told mentioned complaint not rectified. vehicle delivered. This vehicle under observation few days”.

12. It was argued on behalf of complainant that the vehicle was under observation due to manufacturing defects. We cannot agree with this submission because, after taking delivery on 26.10.2007 the vehicle was next brought to second opposite party only for its periodical service on 07-11-2007 when the vehicle has covered 25007 Kms. Only because the complainant alleges that the vehicle is not satisfactory it cannot be inferred as defect of vehicle. The condition of defect of the vehicle should be proved by repair, replacement etc. Ext.A9 is a letter issued by Sandeep R. Nair to complainant after completing the last accidental repairs of the vehicle. It is stated in Ext.A9 as under:

“ For your information we observed at the time of doing service regard your repeat complaint that the body vibration; the bushes comes over chassis are found to be misplaced. We renewed those bushes takes test drive and found OK with these time as per customer request we completed the accident work. The misplacement of bushes may be occurred at the time of manufacturing or at the time of repair. The vehicle taken test drive by the customer and the customer complaint found to be rectified”

In this regard it is sworn by opposite party that on 30-07-2008 when the vehicle was brought for last accidental repair, on inspection it was found that four bushes that connect the chassis with the body of the vehicle were found to be misplaced. That it might have happened when the complainant entrusted the vehicle for repair in some other workshop as the vehicle was not brought to second opposite party between the period 07-11-2007 to 30-07-2008. That though opposite party explained this to the complainant, he took an adamant stand that the misplacement was due to manufacturing defect and wanted something in writing to the effect that he has made a complaint of manufacturing defect. That therefore Ext.A9 was given. But instead of taking delivery of the vehicle complainant abandoned the vehicle not responding to the request to take the vehicle. There after he send e-mail and lawyer notice and this case was filed. The commissioner has also reported that a bush was misplaced. Opposite parties vehemently contend that the bushes were placed between the leaves only to satisfy the complainant's request and that the vehicle would run smoothly with or without the bushes. It is brought out from evidence that while bringing the vehicle for the last accidental repair, two years after purchase had elapsed and the vehicle had covered more than 50,000Kms. The complainant paid the repair charges for the accidental repair and then abandoned the vehicle. This act of the complainant is not at all justifiable. After using the vehicle for two years and running more than 50000Kms, and sustaining a major accident the complainant has abandoned the vehicle at the service center requesting for replacement of the vehicle with a new one. The warranty of the vehicle was over when the vehicle was brought for last service. Further complainant had not done the warranty condition services from 07-11-2007 to 30-7-2008. The evidence adduced does not establish any manufacturing defect. On the totality of the evidence placed before us we are able to hold that there is no manufacturing defect to the vehicle much less any defect. The expert has opined that the vehicle is in good condition. We therefore cannot find any unfair trade practice on the part of opposite parties. But the proved fact of misplacement of bushes is deficiency on the part of opposite parties. We find opposite parties deficient in this regard.

13. Point(ii):-

The complainant claims for refund of purchase price which cannot be allowed. We consider that payment of Rs.8,000/- as compensation together with costs of Rs.2,000/- would meet the ends of justice. First and second opposite parties who have attended to services of the vehicle are responsible to compensate the complainant. Third opposite party being the principal/manufacturer is also liable.

14. We therefore allow the complaint and order that all three opposite parties shall jointly and severally pay to the complainant a sum of Rs.8,000/-(Rupees Eight thousand only) together with costs of Rs.2,000/-(Rupees Two thousand only) within one month from the date of receipt of copy of this order. Complainant is directed to take delivery of the vehicle from opposite parties within one month from the date of receipt of copy of this order.

Dated this 12th day of October, 2011.

Sd/- C.S. SULEKHA BEEVI, PRESIDENT

 

 

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Sri. Sivadasan, complainant.

Documents marked on the side of the complainant : Ext.A1 to A9

Ext.A1 : Photo copy of the Invoice dated, 31-8-06 issued by first opposite party to complainant.

Ext.A2 : Photo copy of the Brochure.

Ext.A3 : Photo copy of the email letter dated, 04-11-2008 from complainant to first opposite party. .

Ext.A4 : Photo copy of the email reply letter dated, 04-11-2008 from first opposite party to complainant.

Ext.A5(series) : Registered lawyer notice dated, 16-12-2008 and registered reply notice dated,

14-01-2009.

Ext.A6 : Computer print of proforma invoice dated, 26-10-2007 from 2^nd opposite party.

Ext.A7 : Letter dated, 30-10-2008 from Service Manager of 2^nd opposite party to complainant.

Ext.A8 : Computer print(carbon copy) of proforma invoice dated, 31-10-2008 from 2^nd opposite party.

Ext.A9 : Letter from Service Manager of 2^nd opposite party to complainant.

Witness examined on the side of the opposite parties : DW1 and DW2

DW1 : Sri. Subash.S., Regional Manager(service) of first opposite party.

DW2 : Sri. G. Padmanabhan, Zonal Manager of opposite party No.3

Documents marked on the side of the opposite parties : Ext.B1 to B4

Ext.B1 : Photo copy of the letter from Service Manager of 2^nd opposite party to complainant.

Ext.B2 : Photo copy of the vehicle history card.

Ext.B3 : Photo copy of the Retailership agreement dated, 01-01-2010 entered between Chevrolet Sales India Pvt Ltd. And 2^nd opposite party

Ext.B4 : Photo copy of the Warranty Coverage.

Court documents marked : Ext.C1

Ext.C1 : Commissioner's report dated, 19-12-2009.

Sd/- C.S. SULEKHA BEEVI, PRESIDENT

 

 

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER