Tamil Nadu

StateCommission

A/386/2014

K. DURAI - Complainant(s)

Versus

NISSON MOTORS INDIA PRIVATE LTD - Opp.Party(s)

T. RAVI KUMAR

09 Jul 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

                          BEFORE        Thiru. A.K.ANNAMALAI            PRESIDING JUDICIAL MEMBER 

                                                     Tmt. P. BAKIYAVATHI                                                    MEMBER

F.A.NO. 386/2014

(Against order in C.C. No.34/2013

DCDRF, Chennai(South) Dated 13.11.2014)

DATED THIS THE 9^th DAY OF JULY 2015

K.Durai

22/5 Vembuliamman koil street

K.K.Nagar

Chennai 600 092                                                                                  .. Appellant/Complainant   

                                                                       Vs

1. Nissan Motors India Private Ltd

ASV Ramana Towers

37 and 38, Venkatanarayana Road

T.Nagar, Chennai 600 017  

Rep by its Director

 

2. Srinivasa Cars Private Ltd

68-D SIDCO Industrial Estate

Korattur, Chennai 600 098

Rep.by its Director                                                                    .. Respondents/ opposite parties

 

Counsel for the Appellant/Complainant         : M/s T.Ravikumar

Counsel for the 1^st  Respondent/ 1^st opposite party : M/s Lavanya Shankar     

 2^nd   Respondent/ 2^nd  opposite party :  Served called absent

 

    The complainant is the appellant.  The District Forum dismissed the complaint. Against the said order, the Appellant/complainant filed this appeal praying to set aside the order of the District Forum, Chennai(South)  in CC.No. 34/2013 dated 13.11.2014.

         This appeal coming before us for hearing finally on 29.6.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, Chennai(South), this commission made the following order.

 

THIRU.A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

1.         The unsuccessful complainant is the appellant.

2.          The complainant purchased a Nissan-Micra XV a Diesel run car bearing Registration TN-10-AC-2526 manufactured by the 1^st opposite party from the 2^nd opposite party dealer on 11.4.2011 and the 2^nd opposite party known as Sheriff Motors Pvt Ltd. At that time, the car was left for 1^st free service on 9.11.2011 having a warranty for two years. At the time of delivery of the car, he was instructed that if the warning light flashes in the car it should be delivered to the authorised service station and accordingly the car had such warning light and on delivery to the service station for check up, they used to undertake for repairs after preliminary check up, even without assigning job card. Accordingly on 20.5.2012, the car has developed some problems and because handed over to the 2^nd opposite party, he came to know the parts in the engine have to be replaced and also under warranty, necessary repairs to be carried out and on 21.9.2012, the 2^nd opposite party informed that the estimate for the repair was to be made for Rs.94,845/- which was informed only after four months though the vehicle was idle in the workshop with the 2^nd opposite party till the date of identifying the complaints and further the complainant using an alternative car by paying Rs.10,000/- for the same and the opposite party is liable to replace the car with new brand car and to pay Rs.5 lakhs as compensation for mental agony and further cost of Rs.10,000/- per month from 20.5.2012 till delivery of the new car.

3.       Both the opposite parties denied the allegations and the opposite party contended that the vehicle was entrusted to them on 9.11.2011, he was charged Rs. 3592/- for consumable parts and on 30.5.2012 whom the car was given for repair, the 2^nd opposite party requested the complainant to give approval to dismantle the engine to inspect the details with regarding the exact damage and for which the complainant did not give permission till September 2012 and after his permission, the inspection was done and estimated a sum of Rs. 94,845/- to carry out the repairs. The Engine was ceased due to the negligence of complainant and the delay caused as he had not given approval for assessment and the vehicle run for 6719 kms, the complainant informed that he filled up coolant and he started the engine and was driving of the car and the damage of the cylinder head gasket affected the cylinder head and related parts like valves which is a consequential damage due to the negligence of the complainant and thereby the complainant cannot permitted to be a beneficiary on his own wrong and thereby the complaint to be dismissed.

4.       Based on both side materials, after an enquiry, the District Forum accepting the contention of the opposite parties, dismissed the complaint.

5.     Aggrieved by the impugned order, the complainant filed this appeal contending that the lower forum erroneously dismissed the complaint even according to the 1^st opposite party’s document, the coolant needs to be checked only when the vehicle has run for 40,000 kms and to replace only when the vehicle  has run for 80,000 kms. In this case, the coolant has been replaced even at the time of the vehicle had run for only 300 kms and for the 2^nd time when the car had run only for 6719 kms. The coolant had reduced considerably, heating the engine indicating that there was inherent defect in the coolant and the vehicle, more particularly the radiator. The Lower Forum had failed to look into the principle laid down in the judgment reported in 2012 (1) CPJ 1 (SC) National Seeds Corporation Ltd Vs Madhusudhan Reddy and another and also the District Forum failed to appreciate the Principle of Res-ipsa-lockitur. When the facts itself are sufficient to prove the defect there need be no separate expert evidence, to prove the defect and thereby the appeal to be allowed.

6.         We have heard both side arguments and considered relevant materials carefully in this regard.

7.          It is not in dispute that the complainant entrusted the car for certain repairs while covering the kilometers about 6719 kms alleging that the warning light often flashed expressing the defects in the system for which the car has to be entrusted to the service person only could do the repair by making proper repair and if the car is running with such condition continuously it may cause expensive damages to the engine and other consequential repairs for this, the complainant alleged that he used to  entrust the car for such defect, then and there and the 2^nd opposite party even without preparing job card used to do repair and accordingly one such occasion, the car was entrusted for repairs on 20.5.2012 and for which the estimate was given on 21.9.2012 to the complainant and to pay the same , even though the car was in repair within the warranty period of two years and since the complainant alleged an inherent manufacturing defect in the engine requiring replacement of new car. Whereas the opposite party contended admitting the entrustment of vehicle on 30.5.2012 and stated that the complainant had failed to give an approval for opening of the engine to inspect the same and only approved after 4 months and the delay was caused only by him and also the car was used with such defects by the complainant, he himself filling replacement of coolant water and which caused the defects in cylinder head and related parts like valves for which no warranty could be given.  It is the only contention by the opposite party that because of negligence that the damages was caused on its own and not due to defective parts of the car. Further the complainant not proved the defects by way of expert evidence for which they relied upon the ruling reported in

           I (2010) CPJ 235 (N.C)  Classic Automobiles Vs Lila Nand Mishra & another  

        further the complainant had not used the vehicle as per the instruction given in the owner’s manual and since the complainant had not proved the manufacturing defect in the vehicle. Against the same the complainant relied upon the ruling reported in 2012 (1) CPJ  1 (SC) National Seeds Corporation Ltd Vs M.Madhusudhan Reddy and Another

which is not applicable to the facts of the case in hand as the complainant obviously proved that the car purchased by him is having manufacturing defect. The complainant states in this complaint that he was instructed that if the warning light flashes, the car must be delivered at the authorized service station who are only competent to perform repairs on the vehicle and as the warning light was glowing continuously he used to deliver the car for check up, even without assigning any job card they used to undertake for repairs and after preliminary check up it was delivered immediately   which was not acceptable by the District Forum while considering these aspects, the complainant stated that the defective in the vehicle was apparently shown by glowing of warning light itself. These symptom for defects in the car and when the car was running  for 300 kms and a change of coolant at this point eventhough coolant to be checked only after running 40,000 kms and replacing of it after 80,000 kms, even at 300 kms the coolant become reduced and filled up is a defective one, therefore it has a manufacturing defect, and also same defect was happened, even though the coolant water had to be changed after 300 kms and even from the beginning the defect was in existence would sufficient to show the defect is inherent and there is no need for any expert’s opinion and these contention can be acceptable  when the defect is apparent, though the opposite parties contended that only because of the complainant’s negligence, it was happened that he had failed to prove the same and they had not produced the job card and any other materials for the service for the car entrusted on 20.5.2012 or at the earlier and subsequently for the request for approval of the complaint to open the engine for inspection except to produce the copy of the warranty information and maintenance booklet.

8.        On perusal of the documents relied upon by the complainant under Ex.A.3 to A.8, and A.9 for the service rendered necessary cash amounts were paid by the complainant including pick up, drop that shows that he could not have driven the vehicle even after finding the warning light glowing and only after giving the estimate under Ex.A.11 for Rs.94,845/-. The complainant has come forward with this complaint stating that it is also covered under the warranty thereby by considering the facts and circumstances of the case, the car purchased by the complainant even within six months from the date of purchase and before not even covering 10,000 kms having covered only 6719 kms having warranty for 24 months or for 50,000 kms which ever comes first having defects in the cooling system and engine and thereby we are of the view that the opposite parties are liable to replace the engine of the car and to attend the repair within the warranty irrespective of the alleged negligence on the part of the complainant and thereby this complaint ought to have been allowed to that extent and the District Forum without going deep into crust of the complaint, dismissed the same erroneously which is liable to be set aside, accordingly,

           In the result, the appeal is allowed by setting aside the order of the District Forum, Chennai(South) in CC. 34/2013 dated 13.11.2014. The complaint is allowed in part and the

         opposite parties 1 and 2 are jointly and severally directed to replace the engine of the defective car with cooling system without charging any amount from the complainant except for the  chargeable parts as per warranty  and also

    directed to pay a sum of Rs.3000/- as cost.

          The Directions shall be complied within two months from the date of this order.

         No Separate costs in this appeal.

 

 

 

 

P.BAKIYAVATHI                                                                     A.K.ANNAMALAI 

  MEMBER                                                                    PRESIDING JUDICIAL MEMBER