By G. Yadunadhan, President:<br /> <br /> <br /> The complainant, who is a Doctor in Government Service has preferred the above complaint alleging that Tata Indica Car purchased by him on 9.2.2000 from the 2nd opposite party, manufactured by the 1st opposite party, after availing loan from Bank of India, Kasaragod Branch, is suffering from different defects and seeks the relief of replacement of the said vehicle and also compensation and costs. According to the complainant, within two months of purchase the vehicle started exhibiting several defects such as front suspension sound, wheel alignment mistake, joint cut and tyres becoming defective. It is his case that in spite of repeated repairs by the 2nd opposite party as well as the 3rd opposite party, the service center, they were unable to rectify the defects. The 3rd opposite party had collected a sum of Rs.7460/- but still did not rectify the defects. It is further contended that the complainant had visited the showroom of the 3rd opposite party several times and requested them to rectify the defects. The vehicle that was given for service on 28.8.2001 to the 3rd opposite party. It was returned only on 25.10.2001 and that vehicle was misused. At the time of entrustment the total running kilometers were 15451 and while returning after service the same was 16891. The complainant had filed a complaint before the Adhur Police Station. The complainant contends that on account of the non-delivery of the car by the opposite party No.3 on time, the complainant was put to serious hardships and had to hire a taxi. The 3rd opposite party had collected a sum of Rs.2400/- while giving delivery of the vehicle as parking charges. A lawyer notice dated 17.9.2001 was sent, but only the 3rd opposite party issued a reply. It is contended that collection of amount during the warranty period is not proper or correct. The complainant alleging deliberate suppression of the defects at the time of purchase and manufacturing defects seeks replacement of vehicle with a new one and also compensation.<br /> <br /> The opposite parties filed their version disputing and denying the case and claim of the complainant. Opposite party No. 1 and 3 would contend that the complaint is barred by limitation, that this Forum lacks territorial jurisdiction, that the vehicle is having warranty for 18 months only from the date of purchase, that the complainant had taken delivery of the vehicle after each service after being satisfied about its performance, that the vehicle is not having manufacturing defects, that it at all there are any defects only repair and no replacement can be ordered, that the complainant did not take delivery of the vehicle in spite of being asked to do so, that if at all there are any manufacturing defects the 2nd opposite party is not liable or responsible for the same being only an authorized service center. The 2nd opposite party in the version contended that the complaint is not maintainable, that the amount was collected as the service was done beyond the warranty period.<br /> <br /> The evidence in the matter consists of Ext. A1 to A16 and Ext. C1 besides Ext. B1 series to B3. The Commissioner was examined as CW1 and RW1 and RW2 were examined on the part of the opposite parties.<br /> <br /> The issues that arise for consideration are (1) is the complaint maintainable? (2) Is there any defect in the vehicle purchased by the complainant? (3) Is there any deficiency in service or unfair trade practice on the part of the opposite parties? and (4) What is the relief?<br /> <br /> Issue No.1: The opposite parties would contend that the complaint is barred by limitation. But a proper appreciation of the pleadings and evidence in the matter would reveal that the defects are persisting in spite of the repairs and that there is continuous cause of action. The contention that once the warranty period is over the consumer is not entitled to any relief does not appeal to us. Moreover the records reveal that the defects were noticed during the warranty period itself. The Hon’ble Kerala State Commission in II (2000) CPJ 285 (Kerala) has held that when there are recurring defects, there can be no bar of limitation. When defects arose during the warranty period and continued recurrently the complaint is maintainable as laid down in II (2001) CPJ 270 (Kerala). The other contention that this Forum lacks territorial jurisdiction also cannot stand because admittedly the opposite parties carries on business and has office in Kozhikode district within the jurisdiction of this Forum. Hence we find that the above complaint is maintainable.<br /> <br /> Issue No.2: The complainant alleges several defects with the vehicle. In Ext. A16, it is seen that complaints regarding the suspension sound is seen raised by the complainant during the 1st service itself when the vehicle had run only 5510 kms. Ext. A7 and A8 also reveal that there were complaints with the vehicle within the warranty period itself. RW1 also in cross examination admits that there were defects during the warranty period itself but would contend that all such defects were rectified. RW1 would state that there is sound in gear liver while running and wear and tear of the tyre occurred due to defect of suspension. RW1 would also contend that defect even if cured once can recur again. RW2 also in the cross examination would admit that there were complaints within 2 months of purchase. The same are recorded in the job card and manual. To prove the defects the complainant had taken out an expert commission and Ext. C1 report reveals that there is unusual sound from the suspension especially when the break is applied to slow/stop the vehicle and that there is abnormal noise from the engine, while the engine working. The defect in the suspension is reported to be there from 7500 kms. onwards. It is specifically reported that the opposite parties were unable to rectify the defects in the suspension and that due to the defects of the suspension wear and tear of the tyres normally occur. RW1 and RW2 has admitted that they were present when the expert examined the vehicle. Even though objections to the report of the expert is seen filed by all the parties the fact remain that the vehicle is having defects which were not able to be rectified by the opposite parties in spite of repeated repairs indulged in by them. The expert is examined as CW1. He has spoken to that there is no indication of any rash or negligent driving. The opposite parties except for raising objection to the report of the expert has not taken any steps to adduce any expert evidence or to have the vehicle examined by some other expert to contradict the findings of the CW1. It is really unfortunate that reputed establishments like the opposite parties are taking shelter under the abstract principle of burden of proof, when they had to knowledge, expertise and resources to assist the Forum and show what exactly are the defects and whether the same are rectifiable/repairable, if so how. When both parties adduce evidence, the abstract principle of burden of proof loses significance and the matter is liable to be decided basing on the materials available on record without unnecessarily insisting that the burden of proof is on the complainant. RW1 has admitted in cross examination that when the same defect occur again and again even after repair, it means that there is manufacturing defects.<br /> <br /> In view of the above facts and circumstances we find that the vehicle purchased by the complainant is defective, that the defects arose within the warranty period and the opposite parties were unable to rectify the defects in spite of repeated repairs.<br /> <br /> Issue No.3: As indicated above, the defects in the vehicle arose during the warranty period and continued through out. The Hon’ble Kerala State Commission in Solidire India Ltd. and Another VS. Smt. K. Indira, III (1995) CPJ 529 has held that repeated repairs itself would amount to deficiency in service. In this case the opposite parties appear to have acted under the impression that once the warranty period has expired, all their liabilities ceases. They have also collected charges for the repairs. It has also come out in evidence that the wear and tear of the tyres occurred on account of defect in the suspension, which is demonstrated, to be defective from the very inception onwards and not rectified till date. Likewise no explanation is forthcoming from the part of the opposite parties regarding the allegation of the complainant that there was misuse of the vehicle entrusted for service as the kilometer reading while entrustment was 15451 and while giving delivery it was 16891. Besides the above, the 3rd opposite party had also collected Rs.2400/- as parking charges. Thus in view of the above discussion we hold that there is deficiency in service and unfair trade practice on the part of the opposite parties.<br /> <br /> Issue No.4: The Counsel for the complainant has relied on II (1992) CPJ 454 (NC) Ashok Kumar Singh Vs. M/s. Gujarat Cycles and another wherein it has been held that the reason stated by the lower Forum that the complainant has not adduced any detailed evidence furnishing particulars of the nature of inconvenience caused to him and hence not entitled to any relief is not correct or sound and that the Forums constituted under the Act has to take a realistic and pragmatic view in matters coming before them and where it is manifest that real inconvenience has been caused to complainant, it is the duty of the Forum to determine and award reasonable compensation without insisting that the complainant should perform the impossible task of furnishing particulars in regard to the nature of inconvenience suffered by him. The Hon’ble Supreme Court of India, in Charansingh Vs. Healing Touch Hospital and others 2000 (III) CPR 1 (SC) has held that while quantifying damages, Consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded in an established case, which not only serves the purposes of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. In paragaraph 13, it is further held that it is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary etc. suffered by the complainant, which is in issue, it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence. Thus keeping in view the above principles laid down by the Hon’ble Supreme Court of India and Hon’ble National Commission and upon consideration of all the relevant matters in issue and especially conduct of the opposite parties we grant the following reliefs. The vehicle purchased by the complainant is found to be defective. The main defects appears to be with the suspension and the engine also appears to be defective as there is abnormal noise emanating from it. That there is wear and tear of the tyres on account of defect of suspension is also proved and established. It requires no protracted reasoning to conclude that a vehicle of this nature cannot be used for comfortable driving by a consumer. The opposite parties No.1 and 3 have filed notes of arguments wherein they have relied on the decisions of the Hon’ble National Commission and the Hon’ble Kerala State Commission to contend that only a direction to rectify such of those defects found in the vehicle can be made. At this juncture it is pertinent to point out that the opposite parties have not let in any evidence to show that the defects found in the vehicle can be rectified or that by replacement of the defective parts the vehicle could be set right. In the absence of any such evidence from the part of the opposite parties, we find it difficult to accept their contention that only a direction to rectify the defects found could be given, especially when in spite of repeated repairs the opposite parties were unable to set right the defects in the vehicle. The defects are shown to be there from the stage of the 1st free service onwards. The complainant has relied on 1995(3) CPR 20 (Kerala) V.R. Reghunathan Vs. Kerala Automobiles Ltd. as well as 1998(3) CPR 65 (Madhyapradesh) Mahendrakaur Khanuja Vs. Sipani Automobiles Ltd. & another to support his contention that he is entitled to refund of the purchase amount. Admittedly the purchase was on 9.2.2000 and the defects started exhibiting itself within 2 months of purchase. The complainant has discharged the initial onus of establishing that the car is suffering from different defects. Then it is for the opposite party to prove and establish with expert evidence as well that the said defects are on account of any negligence or carelessness on the part of the complainant, or that the said defects can be set right by repairs or by replacement of certain parts. No such evidence is forthcoming from the part of the opposite parties. In the above circumstances we find that a direction to rectify all the defects including by replacement of the defective parts and render the vehicle absolutely defect free and the said vehicle shall be inspected by the expert (CW1) and a report regarding the satisfactory completion of the repairs be obtained and all expenses for the same shall be borne by the opposite parties. The Opposite parties shall also be liable and responsible to pay a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) as compensation for the loss and injury sustained by as the complainant on account of the negligence, deficiency in service and unfair trade practice on the part of the opposite parties. The complainant shall also be entitled to his costs which we quantify at Rs.10,000/- (Rupees ten thousand only). The opposite parties shall comply with the direction contained in this order within a period of one month from today and in the event of the expert (CW1) filing a report to that the opposite parties are unable to rectify the defects, they shall be liable and responsible to refund the purchase price of the vehicle with 12% interest thereon from the date of the complaint, ie., 12.5.2003 till realization.<br /> <br /> Hence complaint is allowed.<br /> <br /> Pronounced in open Court this the 4th day of August 2008.<br /> <br /> Sd/- Sd/- Sd/-<br /> PRESIDENT MEMBER MEMBER<br /> <br /> APPENDIX<br /> <br /> Documents exhibited for the Complainant:<br /> <br /> A1 Photocopy of lawyer notice dated 17.9.2001. <br /> A2 Reply to the lawyer notice dated 17.9.2001.<br /> A3 Copy of letter dated 15.10.2001 addressed to the Advocate of the complainant.<br /> A4 Postal acknowledgement No.2631 dated 18.9.2001.<br /> A5 Postal acknowledgement No.2632 dated 18.9.2001.<br /> A6 Postal acknowledgement No.2630 dated 18.9.2001.<br /> A7 Customer’s complainant – Invoice No.3139.<br /> A8 Customer’s complainant – Invoice No.4113.<br /> A9 Customer’s complaint dated 28.8.2001.<br /> A10 Cash Bill No.5312 dated 30.8.01 of Auto Matrix.<br /> A11 Cash Bill No.5312 dated 30.8.01 of Auto Matrix.<br /> A12 Receipt dated 25.10.2001 issued by SI of police, Adhur.<br /> A13 Receipt dated 25.10.2001 for Rs.2400/- from Auto Matrix.<br /> A14 Cash Bill No.4224 dated 20.12.01 from Koyenco Motors.<br /> A15 Cash Bill No.5291 dated 20.12.01 from Koyenco Motors.<br /> A16 Owner’s Manual in original.<br /> <br /> Documents exhibited for the Opposite parties:<br /> <br /> B1 Job Card in respect of the complainant’s vehicle.<br /> B2 Copy of the letter dated 10.9.01 sent by the 3rd OP to the complainant.<br /> B3 Copy of the reply dated 15.10.2001 sent on behalf of the 3rd OP to the<br /> Lawyer notice sent on behalf of the complainant.<br /> B4 Photocopy of Repair Order No.5804 dated 19.12.200.<br /> <br /> C1 Expert commission report dated 12.2.2005 of Sri. C. Venugopal, Expert<br /> Commissioner.<br /> <br /> Witness examined for the Complainant:<br /> <br /> None.<br /> <br /> Witnesses examined for the Opposite parties:<br /> <br /> RW1 Sunil Ram, S/o. P. Mohan Rao, “Auto Matrix”, Near KSRTC stand, Mangalore.<br /> RW2 Thirumal Marayan, S/o. Mr. A. Kandappan, Tata Mostors Ltd.<br /> <br /> CW1 C. Venugopal, S/o. K. Ramankutty Nair, ORION, Thiruthiyad, Calicut-4.<br /> <br /> -/True copy/-<br /> <br /> Sd/-President<br /> <br /> (Forwarded/by order)<br /> <br /> <br /> <br /> <br /> Senior Superintendent.<br /> <br /> <br /> <br /> <br />