By Sri. A.A. Vijayan, President.

              The complaint is in respect of defects of the body of the car.  The averments in the complaint in brief are as follows.

           Complainant purchased Ford Figo Car for Rs. 5,47,604/- (Rupees Five lakh forty seven thousand six hundred and four only) on 26-12-2013  from 1^st  opposite party.  The complainant had availed  warranty for two years  and extended warranty for one year.  The Registration  number of the vehicle is KL/53/G /5105 .  Even on the date of delivery of the vehicle,   the defects started to be manifested.  The engine of the car had jerking . Though  complainant approached 1^st opposite party  they did not render  any considerable assistance to solve the problems .  Then the body of the car   began to rust.   The   door glasses  were not in a position to  move upward or down word .  When these defects were brought to the notice of  1^st opposite party   they  directed  the complainant  to take action against 2^nd opposite party.  The service of both opposite parties  was defective  and that caused severe  mental agony and financial loss to complainant. Therefore the complainant prayed for giving a direction to opposite parties to replace the rusted body of car and to pay Rs. 5,00,000/-(Rupees Five lakh only) as compensation to complainant  and also to pay cost of the proceedings.

                     1^st opposite party filed version  as follows.  The averments in the complaint that  immediately after delivery of the car  the engine of the vehicle  developed jerking   and no positive assistance  was obtained from  1^st opposite party   and the body of the vehicle was rusted etc are baseless allegations.  The complaints reported  to this opposite parties  were rectified .  There was no repeated complaint and corrosion of the body  as claimed by complainant.  The allegations of the complainant that   the door   glasses could not be lifted   and when complainant  informed the 1^st opposite party  they insulted him and directed him to make  complaint to 2^nd opposite party , the manufacturer  also are baseless allegations.  All defects  revealed to the opposite party No.1 are informed to  the 2^nd opposite party on line. If any  unexpected complaints  are reported, that would be repaired  under the instruction and the advice of  the manufacturer .     All   necessary  normal services were done by this opposite party.     On

19-02-2015  the body repair was also carried out on payment of Rs. 17204/-(Rupees Seventeen thousand two hundred and four only) and the repairs were carried out  at 13763 kms on rear bumper right corner and front bumper both corners and right side quarter panel .  On 10-03-2015 left -hand side shock absorber mounting  was replaced under warranty  for the benefit of complainant. Free service campaign  was attended on 18-09-2015. On the above occasions  the complainant  had never disclosed engine jerking  or  rusting of the body .  On 22-09-15 the complainant reported door handle tights  at both  winders.  Those defects were caused by improper garaging of the vehicle during day and night. It is also  revealed  that   the complainant never kept the vehicle properly under  coverage.  Since the car was exposed to hot sunlight and heavy rain, door beadings were damaged and winders of the vehicle were rusted. To rectify the above defects  the permission of manufacturer was essential   otherwise  the complainant would have to  meet the expenses.  But no permission was obtained from the manufacturer.  Thus the complainant was bound to  meet the expenses for getting those  parts repaired for which complainant was not ready.  On 05-12-2015 the complainant approached this opposite party with a complaint of  front wheel with a humming noise  for which  wheel bearing  was changed  and defect was rectified  at  25,136 kms. During December 2015,  the corrosion was noticed by opposite party  and reported to the manufacturer,  it was the result of  improper keeping of the vehicle without coverage.  So the complainant is responsible for that.   Without  permission of the manufacturer, this opposite party cannot repair the vehicle to rectify those defects.  Thus there is no deficiency in service  on the part of this opposite party. Hence complaint is to be dismissed.

               2^nd opposite party filed version stating as follows.  This opposite party is engaged  in the business of manufacturing/assembling and selling passenger cars  and related spare parts in India.    This opposite party is not a necessary party in this case.  No allegations were raised  against this opposite party.    This opposite party has never rendered any service to complainant. The main grievance of complainant is  regarding service rendered by opposite party No.1.  The relationship between opposite party No.1 and 2 is on principal to principal basis.   The ancillary  services are exclusively  provided by  the dealers , that means opposite party No.1 .  Each opposite party is liable for its own respective actions. The complainant has no claim  as to manufacturing defect of the vehicle.  Thus this opposite party is not liable for  the deficiency of services  of opposite party No.1.   There is no privity of contract  between complainant and this opposite party.  Since  this opposite party  has neither sold car nor rendered any service  to the complainant.  Therefore, the complainant does not come within the purview of  consumer.  This opposite party manufactured the cars and sold to dealers . Thereafter the dealers sell those cars to their customers according to their independent marketing strategies.  The complainant has made the payment to  the opposite party No.1.  There is no consideration  to the opposite party No.2  Thus the liability of this opposite party arises  when  manufacturing defect of the car is noticed.  This Forum has no territorial jurisdiction  to entertain  the complaint filed by complainant against this opposite party, since he has not sought prior permission of  the Forum to file case against this opposite party, because this opposite party does not work for gain within  the jurisdiction of this Forum.  No cause of action arose against this opposite party.  The complaint involves several questions of fact and law which warrants   detail enquiry and thus Civil courts alone will get the jurisdiction to entertain the complaint.  No loss or injuries were caused to complainant by the act or omission of this opposite party.  So this forum has no jurisdiction to entertain the complaint.  The rusting of the car  alone is not sufficient to prove the manufacturing defects .  No complaint is received by  this opposite party from anybody with respect to rusting of the car.  Complaint is frivolous  and vexatious and there is no cause of action against  this opposite party. Thus complaint is to be dismissed.

            Complainant and opposite parties are filed affidavits and Ext.A1 to A7 and Ext.B1 to B3 and Ext.C1 and Ext.C2 are marked. Points arise for consideration.

1.  Whether there  is  any manufacturing defects for  the car as claimed.
2. Whether there is any deficiency  in service on the part of opposite parties.
3. Whether complainant is entitled to any relief .
4. Whether complaint is maintainable.
5. Reliefs and cost.

Point No. 1 to 4

         The 2^nd opposite party raised a claim that the complaint is not maintainable  because  for the deficiency in service of 1^st  opposite party , 2^nd opposite party will not be liable.  This assertion is made  holding that  the claim of the complainant is only regarding the  deficiency in service of 1^st opposite party in rendering service  and  the relationship of 2^nd opposite party with 1^st  opposite party is on  principal to principal basis.  It is significant to note that apart from deficiency of service of 1^st  opposite party  the complainant has also alleged that  the vehicle has got manufacturing defect because many parts of vehicle got rusted  within a short period. 2^nd opposite party admitted  in the version that,  if  there is  manufacturing defects for the vehicle 2^nd opposite party will be liable.   Under these circumstances  the objection raised by the 2^nd opposite party challenging the maintainability of the complainant  can be found baseless. 

             The 2^nd opposite party has raised the contention that the complaint is not maintainable since this forum has no territorial jurisdiction to entertain the complaint.  The contention  is not maintainable  prima facie because  the vehicle was purchased  from 1^st opposite party who is doing business within the jurisdiction of the Forum and  the cause of action alleged is  the reluctance  of 1^st opposite party in conducting proper repairing of the vehicle and that also what happened within the jurisdiction of the Forum.  So the contention of the 2^nd opposite party regarding territorial jurisdiction is  liable to be rejects.

                The main grievance of the complainant is that the body of the vehicle got rusted due to the manufacturing defect.  To prove the above fact  an expert commissioner was taken out and he filed report which is marked as Ext C1 and C2 .  In the report the Expert categorically reported that on inspection of the vehicle, he noticed rust formed inside  of all doors and outer door panels were also found rusted and in deteriorated condition.  Dick door  and bonnet   were also  found rusted.  A hole  also  was  found developed  on rear left door  due to rusting of the door outer surface.  According to expert, the rust was developed due to faulty painting during manufacturing of the car.  The photographs of the car taken by the expert are marked as Ext.C2. The photographs reveal  that  many parts of the vehicle  were badly affected by rust.  The defense taken by the opposite parties  was that  the complainant   exposed the car to heavy rain and sun  without making any covering  and  on account of that reason  the  parts of the vehicle were rusted.  Apart from  the above mere  allegation no convincing evidence  is available to substantiate  the above claim.  More over  the expert has  categorically  asserted in his report that  the rusting was   the result of manufacturing defects.  The opposite parties did not even request for  disproving the finding of  the expert by cross examination.   Therefore we find  no reason to reject Ext. C1  report and Ext.C2 photographs.  More over from the contentions raised by opposite parties, it is seen that    they also admitted the presence of the rust but the reasons for the rusting revealed by the expert  was not admitted by   the  opposite parties and they  alleged that  the rust was developed by exposing the car  to  heavy rain and sun light .  Hence  in the absence of   any evidence to establish that  the rust noticed by expert  was the result of   exposure of the car  to rain and sun ,  it can be safely concluded that  it is the result of manufacturing  defect as noted by the expert.

           The  prayer of the complainant is seen  confined to  the remedy  on account of manufacturing defects.  Though some other defects  of the vehicle  were also  narrated by complainant in the complaint,  he did not seek any  remedy  in this complaint .    His main prayer is   for replacing the body of the vehicle because on number of places of the body  rust appeared  and  the body has become fragile and ugly.   Since  the claim of complainant is supported by  the finding  of expert, we find no reason to disallow that prayer .  Hence we find that the prayer for replacing the body of the vehicle  is to be allowed. 

               From the pleadings of the 1^st opposite party,  it is clear that   they are the agent of the manufacturer.  At the time of the inspection of the vehicle by the expert  severely damaged  part  of the vehicle due to corrosion  had been noticed by the expert.  Thus we cannot assume that  no complaint was raised  by complainant  on those aspects  before the 1^st opposite party.   The 1^st opposite party also  did not render any assistance  to complainant to bring  that to the notice of the manufacturer. On the other hand they were refusing the service to  complainant.  Hence  the 2^nd opposite party also  is  liable . 

            Since  the body of  the vehicle  was rusted giving a bad shape to the vehicle  within a short period after purchasing the vehicle, definitely  that will  cause mental agony  to complainant. Complainant prayed for Rs. 5,00,000/- (Rupees Five lakh only) as compensation for mental agony.  From their circumstances we find that  Rs. 1,00,000/-(Rupees One lakh only) is sufficient  to redress the  grievance of the complaint.  Points are decided accordingly.

Point No.5

  On the basis of the finding  on the above points  the complaint is allowed as follows.

1.  The  opposite parties  are directed to replace the body of the vehicle of the complainant involved in this case with a defect  free  body within the  30 days from the date of receipt  of this order failing which  the opposite parties should pay Rs.  3,00,000/- (Rupees Three lakh only)  for  replacing the body .
2. Opposite parties  are also directed to pay  Rs. 1,00,000/- (Rupees One lakh only) to complainant as compensation for deficiency in  their service.
3. Complainant is also entitled to Rs. 25000/- (Rupees Twenty five thousand  only) as the cost of the proceedings. 
4. The directions given above   shall be complied by opposite parties within 30 days from the date of receipt of the copy of this order failing which they shall pay the amount as stated above with opposite parties Liability of Opposite party No.1 and Opposite party No.2 is joint and several.

                   Dated  this 31^st    day  of August  ,  2018.

A.A.VIJAYAN, PRESIDENT

R.K.MADANAVALLY , MEMBER                                                        

  MINI MATHEW, MEMBER                                      

APPENDIX

Witness examined on the side of the complainant                           :   Nil

Documents marked on the side of  the complainant                        :   Ext.A1to A7

Ext.A1     : Photo copy of R.C.                                                                  

Ext.A2     : Contract  Certificate(Original).                                                             

Ext A3     : Vehicle Report Card.

Ext A4     : Interactive Reception Check Sheet dated 22-09-2014.                                                          

Ext A5     : Interactive Reception Check Sheet dated 05-12-2015.                       

Ext A6     : Vehicle Report Card dated 10-03-2016.                                                                                  

Ext A7    : Cash/Credit receipt.                                                                                           

Witness examined on the side of the opposite party                         :   Nil

Documents marked on the side of the opposite party                       :   Ext. B1 to B3

Ext.B1     :  Dealer Sales and service Agreement.

Ext.B2     : Vehicle Repair History dated 22-06-2016.                                 

Ext.B3     : Copy of Board Resolution.

Ext.C1     : Expert Commissioner Report (Suresh Babu.T, Assistant Motor Vehicle

                   Inspector, RT Office, Malappuram).

Ext.C2     : Photographs (10 Nos.).                                                                                     

A.A.VIJAYAN, PRESIDENT

R.K.MADANAVALLY , MEMBER                                                        

  MINI MATHEW, MEMBER