SRI.K. VIJAYAKUMARAN, PRESIDENT. Complaint seeking replacement of the car purchased by the complainant from the opp.parties or to refund the sale consideration compensation for mental agony, costs etc. The averments in the complaint can be briefly summarized as follows: The complainant has purchased a Baleno VXI Minor -05 car with chassis No.133300 and Engine No.527396 with Pearl Silver color on 31.12.2006 from the first opp.party who is the authorized dealer of the 2nd opp.party at Kollam. The complainant was induced by the first opp.party who said that the vehicle is a prestigious product of Maruthi Udyog Limited and that a major part of the people uses the same because of its wholesome convenience durability and comfort and believing the words of the 1st opp.party, the complainant booked the vehicle on 912.2006 and later took delivery of the same on 31.12.2006 on payment of a sum of Rs.6,50,550.61 towards the sale consideration. A sum of Rs.18,800/- was spent towards registration fee and Rs.21,495 as insurance fees. The vehicle has been registered with the transport authorities with the registration No. KL-25-4006. The warranty of the vehicle was 24 months or 40,000 kilometers which ever occurs first. The vehicle has traveled less than 4000 kilometers The complainant has been using car for personal purpose for the last so many years and he is using the vehicle himself without any driver The complainant has some health problems and so he used the vehicle very carefully and with utmost attention whose normal speed is between 40 – 50 kilometers per hour.. On 1.6.2007 on his way back home from Ernakulam at Changanassery Kavala in Alappuzha the crank shaft of the vehicle suddenly broke and as he was driving the car slowly and with utmost care and attention no untoward accident occurred. It was about 2 p.m. it was a shock to the complainant. The accident occurred in the day light, shattering the trust the complainant had on the said vehicle and to some extent on the opp.parties. The complainant immediately contacted the 1st opp.party who asked the complainant to wait till a mechanic sent by him take custody of the vehicle. The complainant was forced to wait in the open up to 9 p.m. when a mechanic came who introduced himself as a mechanic sent by the 1st opp.party. By 9.30 p.m. the complainant left the place after entrusting the vehicle to the mechanic. The shock and mental agony and the continued waiting at the main road for the mechanic to come to take over the vehicle has resulted in a serious physical torture on the person of the complainant and he had to be admitted in a hospital for several weeks for treatment and the treatment is even now continuing Thereafter the complainant visited the 1st opp.party and requested them to replace the said vehicle with a new one having no manufacturing defects. Though they had promised to arrange a new vehicle in consultation with the 2nd opp.party nothing tangible was done . The vehicle had manufacturing defect which has lead to the breaking of crank shaft. The opp.parties failed to attend the complaint of the complainant promptly, seriously and carefully which amounts to deficiency in service. Hence the complaint. The first opp.party filed version contending that the complaint is illegal, irregular and improper There is no consumer dispute involved in the complaint as against the first opp.party. The allegations in paras 1 and 2 of the complaint are false and hence denied. The first opp.party is the authorized dealer of Maruti Suzuki in Kollam district and the complainant purchased a Baleno VXI, Minor – 05 car having Chassis No.133300 and Engine No.527396 having Pearl Silver Colour on 31.2.2006 on usual accepted terms and conditions as per allotment paper No.C701-0017845. The complainant has purchased the said vehicle upon utmost satisfaction regarding running and showroom conditions of the said vehicle and this vehicle was accepted by the complainant to be in super condition at the time of delivery. The averments in para 3 and 4 are false and hence denied. The allegation in para 5 of the complaint are false and hence denied. Everything relating to the vehicle would be depending upon the manner in which the vehicle was driven and condition of the road in which the vehicle was put to use by the complainant and any damage could happen due to reckless driving of the vehicle by the complainant or the agent and due to the rough condition of the road through which the vehicle was driven.. All the allegations in para 6 and 7 of the complaint are false and denied. The first opp.party had got information over the phone regarding the alleged damage caused to the vehicle and immediately the first opp.party informed the complainant about the regional help line established by the 2nd opp.party and also been informed to seek assistance from the Regional Help Line and accordingly the complainant contacted the Indus Motors, Kayamkulam another authorized dealer of the 2nd opp.party who had taken the vehicle to their service station and the vehicle was properly attended to by the authorized dealers and service center The first opp.party is not in any way liable to pay any compensation to the complainant as the vehicle was in good manufacturing condition, running condition and show room condition at the time of delivery and no manufacturing defect or deficiency in service could be attributed against the first opp.party. The complainant is not entitled to get any compensation from the first opp.party. Hence the first opp.party prays to dismiss the complaint. The 2nd opp.party filed a separate version also contending that the complaint is frivolous and vexatious. The complainant has failed to set out any case for deficiency in service or unfair trade practice against this opp.party. The warranty which is part and parcel of the sale contract is specific as set out under clause 3 of the owner’s manual and service booklet. The complaint is without cause action against this opp.party. The complainant has no case for deficiency in service or unfair trade practice as defined under section 2[1][o] and [r] of the Consumer Protection Act The compensation under section 14[1][d] of the Act can be awarded to the complainant for any lossor injury suffered by the complainant due to the negligence of the opp.parties The complainant has failed to place any material on record in order to substantiate his claim for compensation. The relief thus asked for by the complainant falls outside the ambit of clauses [a] to [i] in Section 14 [1] of the Act. The relief sought by the complainant is also not covered under the warranty. The complainant has not approached this Forum with clean hands. The complainant has bought the vehicle in question subject to warranty terms and conditions which are part and parcel of the contract for sale of vehicle. The after sale service obligation of the manufacturing are specific as described in the owners manual and service booklet supplied to the complainant at the time of the delivery of the vehicle. The obligations of this opp.party are governed by clause No.3 of the service booklet. .The owner of the vehicle is liable to produce the complete vehicle for obtaining warranty obligations from the dealers of this opp.party under clause 6, The complainant could approach any of the authorized dealer as per the list attached with the owner’s manual and service booklet across the country for obtaining warranty service. The complainant could also contact Maruti on road service in all the major cities including the city in question for immediate relief in case of breakdown. In the present case the complainant preferred to contact the opp.party 1 which is 100 K.Ms away from the place of alleged incident. However the first opp.party organized warranty service to the complainant from the nearest dealer Indus Motor, Kayamkulam who brought down the vehicle to their workshop and replaced the component under warranty free of charge to the complainant. But the complainant has no taken possession of the car after repair. The opp.parties have discharged their duty as per the terms and conditions of the warranty. The replacement of the vehicle sought for by the complainant is unwarranted and untenable. It is empathically denied that the opp.parties failed to attend the complaint promptly seriously and carefully as alleged. There is no negligence or deficiency in service on the part of the opp.party. Hence this opp.party also prays to dismiss the complaint. Points that would arise for consideration are: 1. Whether the complainant is entitled to get replacement of the vehicle 2. Whether there is deficiency in service on the part of the opp.parties 3. Reliefs and costs. For the complainant PW.1 is examined. Exts.P1 to P7 are marked. For the opp.party DW.1 to 3 are examined. Ext. D1 to D17 are marked. Points: The complainant’s case is that he purchased the car involved in this complaint Baleno VXI, Minor-05 manufactured by the 2nd opp.party on 31.12.2006 induced by the verbal promises made by the first opp.party who is the authorized dealer paying Rs6,50,550.61 towards sale consideration. After purchase the car ran less than 4000 Kilometres and on 1.6.2007 while he was on his way back home from Ernakulam the crankshaft of the car suddenly broke and so the so called prestigious luxury vehicle was entrusted with a mechanic who was sent by the first opp.party for repairs. According to the complainant the vehicle had manufacturing defects and therefore he demanded replacement of the vehicle, or to refund the price of the car paid by him which was not complied with.. The definite contention of the complainant is that this vehicle Baleno VXI, Minor -05 car has been withdrawn by the 2nd opp.party from the market because of the poor performance and manufacturing defects and low feed back from customers and the first opp.party has sold the vehicle to him, after the same was withdrawn from market which is deficiency in service and unfair trade practice. The contention of the opp.party is that this type of vehicle have no manufacturing defect has alleged. It is argued that the warranty conditions in respect of this vehicle does not allow replacement of the vehicle as a whole but enable replacement of defective parts during the warranty period subject to restrictions and limitations. According to the learned counsel for opp.parties though the car has been repaired and intimation given to the complainant to take back the vehicle from Indus Motors, Kayamkulam who had taken the car for repairs. It is argued that all the repairs and replacements were made free of charge in accordance with the warranty conditions. There is no dispute that the Baleno VXI,Minor-05 cars have been withdrawn from the market. However the reason for such withdrawal is not forthcoming. DWs 1 to 3 the witnesses examined on the side of the opp.party have stated that the withdrawal of the car was considering the feed back from customers. It is also pertinent to point out that DW.1 to 3 who are high officials of the Maruthi Suzuki Company could not give the reason for the withdrawal of such cars nor the date or the month from which such cars have been withdrawn from market. In the absence of such details the contention of the complainant that this car was sold to him after the withdrawal of the same from the market cannot be ignored. A prestigious car manufactured by a manufacturer would be withdrawn only if there were same major draw backs which resulted in poor response from the customers. In the absence of convincing explanation for such withdrawal the complainant’s case that the same was withdrawn because of the poor performance and manufacturing defect of the car has to be accepted. DW.1 is the works manager of the first opp.party. He has stated that prior to the present posting he was working as customer care manager and that he is a mechanical engineering diploma holder . In cross examination he has admitted in page 3 that the crankshaft of a vehicle is an integral part of the engine and it is one of the parts which governs performance of a vehicle . In further cross-examination at page no.4 he would state that from Ext. D6 it could be said that the car involved in this case has major defects, in answer to a pointed questions “clgalu fdglG Kxx engine Llujgkr\rksur\rk TfjH rjr\rk S>lp\PUah\Sh [a] Cgjulnk. It is argued by the learned counsel for the complainant that when DW.1 himself has admitted that the engine of the vehicle had serious defects no expert opinion is required to come to a conclusion that the vehicle is having serious manufacturing defects. DW.2 who is the manage of the Indus Motors, Kayamkulam has also stated in cross examination page 4 that the breaking of crankshaft is a major defect. DW.3 is the Deputy Manager of Maruthi Suzuky India Limited . In cross examination he has stated that 5 items of parts were changed and jobs were done with respect of the engine of the car. He has also stated in cross examination that they are not manufacturing this type of vehicle any more. It goes without saying that the demand for a car depends on its performance and if demand for this type of car has been poor, it is due to the defects and poor performance of the vehicle The learned counsel for the opp.party would argue that the warranty condition Ext. D4 does not authorize replacement of a car as a whole but it enable replacement of parts free of charge during the warranty period. In this case the evidence would clearly indicate that this car has major manufacturing defects. It is also come in evidence that this type of car has been withdrawn. In the light of the fact that the car developed serious defects within a short period of purchase and the manufacturing of the car has been stopped and the remaining cars withdrawn from market it is only just and proper to replace the vehicle and the refusal to replace the same amounts to deficiency in service and unfair trade practice. The limitation imposed in the warranty condition will not help the opp.parties. Point found accordingly. In the result the complaint is allowed directing the 2nd opp.party to replace the car involved in this case with a new vehicle or to refund the price of the vehicle after deducting Rs.50,000/- for use for the period from 1.1.07 to 31.5.2007. The opp.parties are also directed to pay Rs.5000/- towards compensation and costs. The order is to be complied with within one month from the date of this order. Dated this the 25th day of September, 2010. I N D E X List of witnesses for the complainant PW.1. – K. Karunakaran Pillai List of documents for the complainant P1. p Booking receipt dt. 9.12.2006 P2. – Receipt dated 31.12.2006 P3. – Delivery cheque list P4. – Registration certificate P5. – Certificate of insurance P6. – Adv. Notice P7. – Copy of Reply notice. List of witnesses for the opp.party DW.1. – Ajithkumar DW.2. – Rajeshkumar DW.3. – Sameer Jayan List of documents for the opp.party D1. History of card D2. – Service record D3. – Service invoice from Sarathy motors D4. – Warranty clause D5. – Job card D6. – Bill D7. – Warranty details document D8. – Letter dt. 7.7.2007 D9. – Advocate notice D10. – Final Inspection D11. – Service coupon D12.- Warranty policy D13. – Job card D14. – Job card from Karunagappally D15. – Job card from Indus motors D16. – Letter sent by Indus motors to customer dt. 7.2.2007 D17. – Suit notice by Adv. Suresh Babu to Indus motors | 
