IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

                  Friday the 22^nd day of February, 2019.

                                  Filed on 17-03-2016

Present

1. Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)

2.  Smt. Sheela Jacob, B.com,LLB (Member)

                                                                       In

CC/No.83/2016

   between

Complainant:-                                                                    Opposite parties:-

Sri. Mohanan,                                                               1.       Sri. Jeffin .P. Varghese   

S/o Mani,                                                                               Sales Executive

Prince Bhavanam,                                                                  Geeyam Motors Pvt. Ltd,

Pattankkad Panchayath Ward-9,                                           26/578B,Kooayil Annex

Kadakkarappally Village,                                                      Opp. Bhattahiripurayidam

Pattanakkad.P.O, Cherthala.                                                 M.O Ward, Alappuzha-688 001

(By Adv.Anilakumar.G)                                               2.     The Manager

                                                                                                Geeyam Motors Pvt. Ltd

                                                                                                26/578B,Kooayil Annex

                                                                                                Opp. Bhattahiripurayidam

                                                                                                M.O Ward, Alappuzha-688 001

                                                                                       3.    The Manager

                                                                                               General Motors India Ltd.

                                                                                               Chandrapura Industrial Estate

                                                                                               Halol-389 351, District Panchamahals

                                                                                               Gujarath State.

                                                                                               (Adv..T.G.Sanal kumar,Rep by OP3)

                                                                                       4.     The Manager,  Geeyam Motors Pvt.Ltd

                                                                                               11/336/NH-47 Bypass, Netoor.P.O,

                                                                                               Cochin.

                                                                                O R D E R

SRI.E.M. MUHAMMED IBRAHIM (PRESIDENT)

          This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.

1. The averments in the complaint in short are as follows:-

Complainant is a taxi driver by profession.  The 1^st  opposite party is the sales executive.  Second opposite party is the authorized dealer, 3^rd opposite party is the manufacturer and 4^th opposite party is the authorized service centre.  The 1^st Op represented and made the complainant to believe that the vehicle by name Enjoy Chevrloet company has low price, high fuel efficiency, low maintenance cost and is a seven seated vehicle.  Attracted by the offers made  assurance by the 1^st OP the, the complainant purchased one car and the 1^st opposite party had arranged finance from Mahindra & Mahindra company and the vehicle was delivered on 23/8/2013 but it has low pulling capacity and unable to ply the vehicle through the slopy areas.  There was sudden breakdown immediately after the purchase of the vehicle.  The 4^th Op had not recorded all the complaints in the job card and did not mention even the date in the job card and it was not intimated to the manufacturer.  The 4^th Op misrepresented that all the defects will be cured after completing the services of the vehicle but the opposite parties did not initiate any steps to cure the manufacturing defect of the vehicle.  The vehicle in question is in the possession of the 4^th Op since 15/5/2015 and the complainant had issued lawyer’s notice to the opposite parties on 30/5/2015 but the 4^th OP had neither cured the defects nor sent any reply.  As the vehicle is in the custody of 4^th OP the complainant has no earnings and he couldn’t remit the loan instalments. The interest of the loan amount is increasing day by day in sky rocketing speed.  It was happened due to the inaction and unfair trade practice of the opposite parties.  Now the vehicle lies in an abandoned stage and it became a junk.  There is legal obligation and liability upon the opposite parties to replace the defective vehicle.  The defects are not curable since it has been caused during the manufacturing time.  The opposite parties have no manner of right to flinch from the offer and assurance already given to the complainant and they ought to have replaced the vehicle or return the price of the vehicle to the complainant.  The warranty or the extended warranty had no role in this matter.  Even without warranty, the complainant is entitled to get replacement of the vehicle in question since the vehicle has manufacturing defects. Even now having warranty but opposite parties without consider that fact has failed in the duty in replacing the vehicle and thereby by committed grave deficiency in service and as a result complainant has sustained loss of several lakhs as 4th opposite party has failed to return the vehicle after carrying out necessary repair work and has been keeping the same at the premises from 15/5/2015 onwards.  Therefore complainant could not pay the loan installment and on that count also the complainant has sustained heavy liability and he has also lost his avocation and unable to maintain his family.  He has been getting repeated intimation from the finance company to pay the loan instalments.  Hence complainant filed present complaint seeking the following the relief.  (1) Directing the opposite parties to replace the Chevrolet enjoy vehicle bearing  Reg.No KL.32 F 3114  in the alternative the opposite parties have to pay the price of the vehicle amounting to Rs. 7,95,115/- along with interest at the rate of 12% per annum from the date of the receipt of the above amount till realization.

 (2)  Opposite party shall be directed to pay Rs. 5,00,000/- as compensation towards mental agony disgrace loss of earning inconvenience etc. caused to him.

 (3) Complainant further prays to award costs of the proceedings.

3.       The opposite party No.1,2 and 4 filed joint version.  3^rd opposite party remains ex-parte and has not taken part in the trail.

4.       The main contention of the opposite party No.1,2 and 4 in short are as follows:-

          The complaint is not maintainable either law or in facts.  However the above opposite parties would admit that complainant had purchased vehicle bearing Reg.No.KL.32 F 3114 on 21/8/2013 through the 2^nd opposite party, it is further contented that as per records the opposite party on 25/8/2013 on attended the breakdown of the vehicle at Pookkattupadi and clutch fluid reservoir tag was replaced under warranty by the opposite party.   After carrying out necessary check up bull bar fixing was done as per customer request.  On 24/2/2016 necessary service has been carried out arm rest, left hand assembly where replaced under warranty. On 28/8/2015 opposite party advised the complainant to overhaul the engine under warranty.  But the complainant denied doing the work at the delivery of the vehicle without carrying out the same.  It is also brought out in evidence that over a period of 2 years complainant has availed of service of opposite party at about 8 times and except  in one case the vehicle was returned in one day from the date of the delivery of the vehicle for repairs to be done.  The defects pointed out might be attributable to manufacturing defect and opposite parties cannot to be liable for the same.  The complainant is not entitled to get any relief sought for.

5. In view of the above pleadings the points that arise consideration are:

1) Whether there is any deficiency in service on the part of the opposite parties?

2) Whether the complainant is entitled to replace the Chevrolet Enjoy vehicle bearing  

    KL.32-F-3114 or in the alternative whether the complainant is entitled to get back the

    price of the vehicle along with interest as claimed ?

3) Whether the complainant is entitled to get compensation and cost as claimed.

4) Relief and costs?

6.  The complainant has been examined as PW1 and got marked as Ext.A1 to A5 documents. The 4^th opposite party has been examined as RW1 and got marked as Ext.B1 document The commissioner has been examined as CW1and he proves Ext.C1 report filed by him.

 The complainant and contesting opposite parties have filed notes of argument.  However the learned counsel appearing for both parties have not turned up and advanced any oral argument.    

7.  Points No. 1 to 2:- For avoiding repetition of discussion of materials point No,1 to 2 are considered together.  This specific case of the complainant is that the complainant who is a driver by profession purchased one Chevrolet Enjoy car for earning his lively hood but unfortunately he could not ply the vehicle due to manufacturing defect. The engine of the vehicle has become defective on several occasions and he brought and entrusted the car to 4^th Op who failed to repair it.  The contesting opposite parties 1, 2 and 4 resisted the case by contenting that they had made all earnest efforts in attending customers complaint.  On getting complaint regarding starting trouble the 4^th opposite party rushed the spot taken the vehicle to the service centre of the 4th opposite party cured the defect then and there.   They have attended the complaint on sevral occasions and ultimately after carrying out the periodic service on 30,000kms on 28/2/2015, the 4^th Op made a checkup of the vehicle and advised the complaint to overhaul the engine under warranty but the complainant denied to do the work and taken delivery of the vehicle without paying heed to the direction of the 4^th opposite party.  According to the contesting Ops there is no deficiency in service on their part and the defects pointed out by the commissioner might be attributable to the manufacturing defect and the opposite parties No.1,2 and 4 are not liable for the same.

8.    Though the 3^rd opposite party has not filed any written version nor cross examined PW1, the counsel appearing for Op3 has cross examined Cw1 the expert commissioner in length but nothing material has been brought out in evidence to disbelieve the version of CW1 who is having sufficient qualification in verifying the vehicle and  to point out the finding noted in Ext.C1 report. It is also brought out in evidence during cross examination by the counsel for opposite party no.3 that the CW1  is the present AMVI, Cherthala and having diploma in Automobile Engineering and AMEI mechanical Engineering.   However when CW1 was in the witness box the  learned counsel for the 3^rd opposite party has suggested  that the defects and damage found on the vehicle belongs to the  complainant was caused due to the rough use and CW1 expressed that he do not know that fact.  However when PW1 who is the owner cum driver who actually was in the  witness box none of the Ops have no such case nor even suggested  that the defects found on the vehicle was caused due to its rough use.     In the circumstances we find no  bonafides in the  above contention of OP3 simply put to the expert who never happened to see the use of the vehicle.   

9.    RW1 is none other than the service manager of the 4^th OP he has deposed in terms of the contention of the contesting Op no. 1,2 and 4, but would admit that the vehicle has been kept idle at the service station of the 4^th  OP right from 15/5/2015  onwards that  he has noted engine complaint and  therefore suggested to overhaul the engine  and the body has got rusted and these 2 facts have been intimated to the 3^rd Op manufacturing company also.  But the customer has informed that he is not ready to overhaul the engine but the engine has to be replaced.  Admittedly the vehicle is having 3 year warranty.  Though it was having extended warranty the same was lost as the vehicle was held up at the service station.  According to RW1 due to the reason that engine compression weak blow bye complaint, he suggested overhauling the engine of the new vehicle and if it is not overhauled there is a chance of causing more damage to the vehicle.  RW1 would further admit that the vehicle is showing low mileage low pulling suddenly exhausting oil etc. and the same have been caused due to the engine complaint.  It is also brought out in evidence through RW1 that he has noted the running kilometer as 40,105 at Ext.B1 series mistakenly and the expert commissioner has noted only 39,105 km.  

 10.    Admittedly complainant purchased the vehicle on 23/8/2013 and used the same as taxi till 14/5/2015 on which day he brought the vehicle to the service centre of the 4^th Op as he heard unusual noise from the engine and the paint of the body has damaged spondeniaously and unusual sound heard while closing and opening the door.  As he was of the view that the vehicle is having manufacturing defect he brought the vehicle to the service centre of the 4^th op and requested to replace the engine and from that day onwards the vehicle has been kept at the premises of the 4^th OP.   Therefore   he sent Ext.A5 lawyer notice to the 3^rd Op which has manufactured the vehicle and 4^th OP which is the service centre.  But till date they have not complied with the request stated in the lawyer notice.  It is clear from the available materials that vehicle has been kept idle at the premises of the 4^th OP from 15/5/2015 onwards and it is not in a running condition at present which is evidence from the oral evidence of CW1 and Ext.C1 report.  Items No. 6 to 9 noted by CW1 commissioner would clearly indicate that the vehicle is having manufacturing defect.   In the last page of Ext.C1 report it is stated that the vehicle is comparatively a new one having   run only 39,820km.   Therefore the engine compression weak engine blow byes etc have been caused due to the manufacturing defect of the vehicle and the same as can be cured by replacing the engine.  It is also noted by the CW1in C1 reprot that as the vehicle has been kept idle at the service centre of the 4^th opposite party for a pretty long period it has to be repaired and painted to cure the defects which requires a sum of Rs. 29,000/- as cost of the   parts and labour charges that the above estimate has been made by him as suggested by the service manager.  Inspite of lengthy cross examination by the opposite parties including 3^rd OP nothing material has been brought out to disbelieve the oral evidence of CW1 and C1 report prepared him.

11.     In view of the pleadings and evidence available on record it is clear that the complainant is the owner of the Chevrolet Enjoy vehicle bearing No. KL.32 F 3114.  It is also on admitted case that the complainant has purchased the vehicle as per Ext.A2 invoice by paying Rs. 7,95,115/- from the 2^nd opposite party that vehicle was having warranty and extended warranty  which is evident from Ext.A4 warranty form.  Ext.A3 series repair order forms would indicate that the complainant has brought the vehicle to the 4^th opposite party on several occasions on getting it repaired due to the various defects including engine complaint within the warranty period.  The oral evidence of expert commissioner/ AMVI Cherthala coupled with Ext.C1 report would establish the following facts. The AMVI  has verified  the vehicle  at the premises of the work shop of the 4^th Op on 16/1/2017 and 24/1/2017 that on the 2^nd day, the inspection of the  vehicle was done in the presence of the engineer  deputed by the opposite parties No. 2 to 3. On 2nd day 24/1/2017 when he verified the meter reading it was shown 39,820km. (But in the job card it was written as 40,105), that CW1 has not noted any document to show that vehicle was involved in any accident.  According to CW1 in the job card written that engine compression was weak and the oil has become low due to trouble of the engine and on his inspection it was revealed that the engine of the vehicle is defective. According to the CW1 the engine compression was weak and as per the job history the engine oil was changed on several occasions.

12.     The oral evidence of PW1 coupled with the evidence tendered by expert commissioner(CW1) and  Ext. C1 report and also the admission of RW1 would clearly establish that the disputed vehicle is having engine complaint  which is a manufacturing defect and the same was detected within the warranty period and the defect can be cured by replacing the engine.   The main prayer of the complainant is to replace the vehicle by a new one or to return the sale price of the vehicle along with the interest at the rate of 12 % per annum. The above prayer is not allowable as such in view of facts and circumstances of the case.   It is true that there is engine complaint and the painting of the vehicle has been damaged and the body parts of the vehicle has been got rusted.   CW1 has reported that  the  replacement of engine  is the remedy to avoid all the defects expect body repair and  painting work  and the same according to CW1 can be carried out  by spending Rs. 29,000/- including value of parts and labour charges.  It is also clear from the available materials that the complainant  has used the vehicle for about 2 years even though he carried out periodic repairs in the car but it was under warranty and the vehicle had run around for 40,000kms within 2 years and same would indicate that  the complainant has used  the vehicle for about 2 years by plying  it as a taxi and he may have obtained substantial income for about 2 years and thereafter it is highly unfair to demand to replace the vehicle by  a brand new one, especially when it is clearly  brought out in evidence that the defect of the vehicle can be cured by getting it repaired and also by replacing the engine. RW1 would admit during cross examination that they are ready and willing to replace the engine and carry out the repair and painting work.   In the circumstance we are inclined to modified the 1^st relief sought for in the complaint by directing the Ops No.2 to 4 to replace the engine and get the vehicle repaired and painted as suggested by expert commissioner even if the repairing and painting charges will be more than Rs.29000/- as it has been kept idle at the service centre of the 4^th op for a pretty long period if it is not possible or practicable, Op 2 to 4  shall pay 75% of the price of the vehicle to the complainant.

13.     Now regarding the 2^nd relief.   It is clear from the available materials that as there is manufacturing defect of the vehicle the complainant has brought the same to service centre of the 4^th Op  on 15/5/2015 for curing the defects by  replacing the engine but the Ops were not ready for the same.    It is clear from the available materials that the vehicle has been keeping idle at the premises of the 4^th OP from 15/5/2015 onwards due to the fault of the opposite parties and thereby he lost the opportunity to ply the same as taxi and he could not earn his livelihood.   Apart from that he has also sustained mental agony as the new vehicle purchased by him is defective and also due to the non availability of the vehicle to earn his lively hood.  In the circumstances we are inclined to award compensation to the complainant to the tune of Rs. 50,000/-.  The complainant is also entitled to get costs of the proceedings. The points answered accordingly.

 Point No.3

 14. In the result, the complaint stands allowed in the following terms:-

(i). OP 2 to 4 are directed to replace the engine of the Chevorlet Enjoy vehicle bearing No. KL 32 F-3114 and carry out necessary repair and painting work and get the vehicle in a running condition and return the same after carrying out the above works to the  complainant within 45 days from the date of receipt of a copy of this order  after obtaining an acknowledgment from the complainant, failing which Opposite party No. 2 to 4   shall pay Rs. 5,96,336/- being 75% of the sale price of the said vehicle.

(ii)  Ops 2 to 4 are also directed to pay Rs. 50,000/- as compensation and Rs. 10,000/- as costs of the proceedings to the complainant within 45 days.

(iii) If the opposite parties 2 to 4 failed to comply with the above directions within 45 days from the date of receipt of a copy of this order the complainant is entitled to recover Rs. 6, 46,336/- (5, 96,336+50,000) with interest at the rate of 9% per annum from the date of complaint till realization along with costs Rs. 10,000/- from opposite parties 2 to 4 jointly and severally and from their assets.   

  Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 21^st    day of  February, 2019.                   

                                      Sd/-Sri.E.M. Muhammed Ibrahim (President)

                                                Sd/-Smt. Sheela Jacob (Member)

Appendix:-Evidence of the complainant:-

PW1                           -           Mohanan (Witness)

Ext.A1                       -           Copy of  Registration Certificate.

Ext.A2                       -           Retail sales order booking form.

Ext.A3series              -           Repair order forms     

Ext.A4                       -           Copy of EW registration form.

Ext.A5                       -           Lawyers notice dtd 30/5/2015

Evidence of the opposite parties:-

RW1                          -           Moncy.C.K(witness)

Ext.B1series              -           Copies of product complaint report & Vehicle History

Ext.C1                       -           Commission Report

Ext.CW1                   -           Expert commissioner(Santhosh Kumar.K)

// True Copy //

To

            Complainant/Oppo. party/S.F.

                                                                                                                           By Order

                                                                                                                   Senior Superintendent

Typed by:- Br/-

Compared by:-