By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
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2. The complainant’s case in brief is as follows:- The complainant is a taxi driver. He purchased a Mahindra Quanto mini Xylo car on 05.09.2013 from the Second Opposite Party for Rs.6,92,914/- by availing a car loan of Rs.4,90,000/- from the Fourth Opposite party and by accepting the claim of the Second Opposite Party that Xylo car is of a high standard car having quality and free from any sort of manufacturing defects. He registered the car and registration number of the car is KL-73-1072. Thereafter he obtained taxi permit and used the car as a taxi. He is the sole bread winner of his family and he is depending only upon the income derived from this taxi car. When the Complainant took delivery of the car, the Second Opposite Party agreed that he can get service and repair from them. But, later, he could not get these services from the Second Opposite party. Thus, he used to maintain his car properly by doing periodical services at the Third Opposite party. From the very beginning immediately after the purchase of the vehicle, it started exhibiting several sort of problems while running. The Second and Third Opposite parties said that such complaints are usual in new vehicle and it will be alright when it put to regular use. But after the third service, the vehicle started exhibiting major problems like coolant boiling. There was foul smell from the engine compartment of the vehicle. More over the vehicle was vibrating in
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excess while starting and coolant tank was also leaking. Therefore, he had given the vehicle for repair and service on 08.02.2014 to the Third Opposite party. The mechanic of the Third Opposite party told the complainant that the problem was due to a part called LOC- CONS and that part was replaced under warranty. On the very next day itself, the same problems were started and the mechanic of Third Opposite Party repaired it. But on 19.04.2014, 24.06.2014, 02.07.2014, 03.01.2015, 06.01.2015 and 18.03.2015, the same complaint as well as some new complaints were brought to the notice of the Third Opposite Party and the Complainant took the vehicle to Third Opposite Party. Several parts were changed during these periods as per the advice of Third Opposite Party. When the vehicle brought on 06.01.2015, the Third Opposite Party told that the engine was having some manufacturing defect. So, it was replaced as per the advice of Third Opposite Party. Due to the recurring problems, the Complainant was forced to cancel several trips and thus he lost his regular customers. On 07.04.2015, the vehicle was again brought to the Third Opposite Party due to some new complaints such as engine misfiring apart from total vibration, coolant tank leakage, coolent boiling etc. But, the Second and Third opposite parties were unable to identify the reasons and they blamed the manufacturer and advised the
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complainant to take up the issue to First opposite party for replacement of defective vehicle. Thereafter, the Third Opposite party never give back the vehicle after it’s repair. Now the vehicle is lying idle at the workshop of Third Opposite Party. Hence this complaint to get Rs.19,50,000/- as compensation from First to Third opposite parties towards the loss, injury, hardship and damage sustained by the Complainant on account of their negligence, deficiency in service and unfair trade practice with interest at the rate of 18% per annum from the date of complaint till payment, to direct the First to Third Opposite Parties to discontinue the manufacturing, marketing and selling of faulty vehicles and to get cost.
3. Though, the First opposite party appeared, later, due to their absence, they were declared as ex-parte.
4. The Second and Third Opposite Parties filed counter together contenting as follows:- They denied all the allegations made in the complaint. They are not liable to pay anything to the Complainant. The Third Opposite Party had repaired the vehicle as and when the complainant brought it to the garage. Usually, the complainant brought the vehicle with false complaints. The third opposite party
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cleared the genuine defects of the car and they have changed the engine once as per the direction given by the First Opposite Party. The vehicle has no manufacturing defect and there was no negligence or deficiency of service or unfair trade practice from them. Hence complaint is to be dismissed with their cost.
5. The Fourth Opposite Party filed version as follows:- They are not liable to pay anything to the complainant, if, there is any negligence or deficiency in service or unfair trade practice from First to Third opposite parties. They admitted that the complainant availed a loan from them. But, it has no connection with the allegations of the complainant. So this opposite party is totally unnecessary party. Hence, this complaint is to be dismissed with cost.
6. On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency in service or unfair trade practice on first to third opposite parties. If so, whether the complainant is entitled to get anything as claimed?
2. Reliefs and Cost.
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7. The evidence in this case consists of oral testimony of PW1 and Ext. A1 to A12 from the side of Complainant. There is no evidence from Second to Fourth Opposite Parties. Heard the Complainant and Second to Fourth Opposite Parties.
8. Point No.1:- Admittedly the complainant purchased a Mahindra Quanto Mini Xylo car and Third Opposite Party repaired the vehicle so many times. Ext.A9 series are the bills issued by the third opposite party which are related to the repair works of the car. Even then, the Second and Third Opposite Parties claimed that there is no manufacturing defects to the car. The complainant claims that he had purchased the car from Seond Opposite Party and though they agreed to give service at Wayanad, he was compelled to go to the Third Opposite Party at Calicut for service and repair. Ext. A3 is the copy of RC book. It shows that Complainant purchased the car from Third Opposite Party. So, the allegation of the Complainant against Second Opposite Party is false. Except the allegation stated above, the Complainant has no much grievance against Second Opposite Party. He has also no grievance against Fourth Opposite Party. PW1 is the Complainant. Though he alleged that there is deficiency in service and unfair trade practice upon First to Third Opposite Parties, he affirmed that the vehicle has manufacturing defects.
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9. As I already stated, It is evident that Third Opposite Party had repaired the vehicle as and when the complainant brought it to their garage. If there is any manufacturing defects to the car, definitely, the Second and Third Opposite Party are not liable for anything. Even though, here absolutely there is no direct evidence to prove that there is manufacturing defects to the car, it is to be noted that the car has been repaired so many times.
10. Admittedly now the car is in the service centre of Third Opposite Party. Even though, the Counsel appearing for the Third Opposite Party contented that the complainant has not contacted them to verify whether it was repaired or not, it is the duty of the Third Opposite Party to give back the car after repair. Any how, it is an admitted fact that they have not repaired the car thereafter. Ext. A11 is the Manual repair form dated 07.04.2015. Ext. A11 does not contained the delivery date after repair. It contains an endorsement which runs “ not promising the delivery date ”. It means that they were unable to say the delivery date. It may be because of the nature of the complaint. But evidently the Third Opposite Party had repaired the car prior to this as and when complainant brought it. The specific allegation against the Third Opposite Party is that they caused delay in
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giving back the car after the repairs. But it is the specific case of the Complainant that Third Opposite Party replaced genuine spare parts free of costs in all occasions and once they replaced the engine itself. PW1 deposed that the Third Opposite Party can replace the spare parts only if, they receive spare parts. He admitted that there were delay in getting spare parts. Therefore they cannot be blamed for the delay because they are able to repair the car only when they receive the spare parts.
11. It is to be noted that though the complainant came with a complaint, the First Opposite party is reluctant to defend the case and choose to become ex-parte. The Second and Third Opposite Party contested the case and though they contended that there is no manufacturing defect to the car, as I already stated, evidently the car has been repaired many times. Our Hon’ble National Commission held in Regent Automobiles Verses Euro Enterprises and another which is reported in III(2016) CPJ 543(NC) that even though defects pointed out may not be inherent manufacturing defects, short comings pointed out by complainant in brand new vehicle do fall within the armpit of defect. So also Our National Commission held in Abhay R. Bhatwadekar and others verses Tata
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Engineering & Locamotive Company Ltd. and another which is reported in IV (2018) CPJ 366 (NC) that number of repairs and replacement carried out on car is extremely unusual for a new car. So, as per the dictum laid in the above said decisions, we have to come into a conclusion that there is manufacturing defect to the car. Even though, the First Opposite Party is bound to come and prove that there is no manufacturing defect to the car, they kept mum. So the evidence brought in this case is not challenged by the First Opposite Party. So, as per the dictum laid in the above said cases, it can be affirmed that the car is having manufacturing defect. In this circumstances, the Third Opposite Party cannot be blamed for not repairing the car when the complainant brought it on 07.04. 2015. Therefore the First Opposite Party alone is liable and they have a duty to redress the grievance of the complainant.
12. First upon complainant wants to get Rs.19,50,000/- as compensation from Opposite Parties No.1 to 3. As I already stated, the Second and Third Opposite Parties are not liable for anything and the First Opposite Party alone is liable to redress the grievances of the complainant. But the complainant wants to get an exorbitant amount. He has not explained how he is eligible to get this
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amount. The case of the Complainant itself shows that he has not spent much amount for the repair. PW1 admitted that Third Opposite Party obtained cash only for the replacement of the spare parts which were not covered under the warranty. The value of the car is Rs.6,92,914/-. The car is now at the service center of Third Opposite party and it is kept idle. Therefore the complainant is entitled to get at least the price of the car ie Rs.6,92,914/- with interest from the First Opposite Party. Therefore we are of the view that the Complainant is only entitled to get the price of the car with 15% interest from 07.04.2015 because he used the car till 07.04.2015 even though there were complaints. The next request of the complainant is to give direction to First to Third Opposite Parties to discontinue the manufacturing, marketing and selling of faulty cars. But, it is an admitted fact that the First Opposite Party stopped the manufacturing of Xylo car. So this request cannot be allowed. Considering the nature of the case, we are of view that the complainant is also entitled to Rs.10,000/- as cost of the proceeding.
13.Point No.2:- Since we found point No.1 as discussed above, the complainant is entitled to get compensation and cost as stated above.
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In the result the complaint is allowed partly. The First Opposite Party is directed to pay Rs.6,92,914/- (Rupees Six Lakh Ninety Two Thousand Nine Hundred and Fourteen) as compensation with an interest at the rate of 15% from 07.04.2015 till payment to the complainant with cost of Rs.10,000/- (Rupees Ten Thousand) within 30 days from the date of receipt of this order. It is clarified that Complainant is not entitle to put any claim over the car kept in the garage of Third Opposite Party after receipt of the amount ordered herein.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 9th day of January 2020.
Date of Filing: 23.04.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Prince. N. K. Driver.
Witness for the Opposite Parties:-
Nil.
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Exhibits for the complainant:
A1. Copy of Driving License.
A2. Copy of Payment Chart.
A3. Copy of Registration Certificate.
A4. Copy of Contract Carriage Permit.
A5(1). Copy of Form No.22 Pollution Certificate.
A5(2). Copy of Invoice. Dt:05.09.2013.
A5(3). Copy of Invoice. Dt:05.09.2013.
A5(4). Copy of T.P. Registration Details.
A6. Owners Manual.
A7. Service Coupon Booklet.
A8(1). Copy of Tax Invoice.
A8(2). Copy of Tax Invoice.
A8(3). Tax Invoice.
A8(4). Tax Invoice.
A8(5). Tax Invoice.
A8(6). Tax Invoice.
A8(7). Tax Invoice.
A8(8). Copy of Pre- Invoice. Dt:18.07.2014.
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A8(9). Copy of Vehicle History.
A8(10). Copy of Vehicle History.
A8(11). Copy of Vehicle History.
A8(12). Copy of Vehicle History.
A8(13). Copy of Tax Invoice.
A8(14). Copy of Tax Invoice.
A8(15). Copy of Pre-Invoice. Dt:10.02.2015.
A8(16). Copy of Tax Invoice.
A8(17). Copy of Pre-Invoice. Dt:06.03.2015.
A8(18). Copy of Tax Invoice.
A9. Extended Warranty Letter. Dt:26.03.2015.
A10. Copy of Email.
A11. Manual Repair Order Form. Dt:07.04.2015.
A12. Copy of No Objection Letter. Dt:13.11.2017.
Exhibits for the opposite parties:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
