KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.363/2013 & APPEAL NO.436/2013
COMMON JUDGMENT DATED 30/05/2014
(Appeal filed against the order in CC No.685/2011 on the file of CDRF, Ernakulam dated, 31/01/2013)
PRESENT:
SMT. A. RADHA : MEMBER
APPEAL NO.363/2013
APPELLANT:
Sivadasan.T.P..,
T.C.22/1190, Chaitanya,
Mannammoola, Perurkada P.O.,
Thiruvananthapuram.
(By Authorized person)
Vs
RESPONDENTS:
1. M/s. Tata Motors Ltd.,
Passenger Car Division, 5th Floor,
One Forbes, Dr. V.B. Gandhi Marg,
Mumbai-400 023.
Rep. by its Managing Director.
(By Adv: V. Krishna Menon)
2. The Managing Director,
M/s. RF Motors (P) Ltd.,
Skyline Gateway Apartments
Pathadippalam, Edappally,
Kochi-682 033.
(By Adv: G.S. Kalkura & Others)
3. The Managing Director/Proprietor,
M/s. Mohandas Motors Vazhayila,
Peroorkada, Trivandrum-695 005.
APPEAL NO.436/2013
APPELLANT:
TATA Motors Ltd.,
Passenger Car Business Unit,
5th Floor, One Forbes, Dr. V.B. Gandhi Marg,
Mumbai-400 023.
(By Adv: V. Krishna Menon & Surya.J)
Vs.
RESPONDENTS:
1. Sivadasan T.P.,
T.C.22/1190, Chaitanya,
Mannamula, Perurkada P.O.,
Thiruvananthapuram.
(By Authorized agent)
2. The Managing Director,
M/s. RF Motors (P) Ltd., Skyline Gateway
Apartments, Pathadipalam, Edappally,
Kochi-682 033.
(By Adv: G.S. Kalkura & Others)
3. The Managing Director/Proprietor,
M/s. Mohandas Motors, Vazhayila,
Perurkada, Trivandrum-695 005.
COMMON JUDGMENT
Both these appeals arise out of the order in C.C.No.685/2011 on the file of CDRF, Ernakulam. The 1st opposite party preferred appeal No.436/13 against the order and the complainant preferred the appeal in A.363/2013 for enhancement of the award and compensation.
2. The complaint is filed alleging manufacturing defect of Tata Indica Vista Car purchased for a sum of Rs.4,70,369/- on 23/05/2009 from the 2nd opposite party. The 2nd opposite party offered Rs.4,000/- as discount applicable to Central Government Employees by way of corporate bonus. The complainant alleges that the 2nd opposite party so far had not materialized the offer. In the complaint the complainant pointed out certain discrepancies. First of all the tyres (5 nos) are manufactured in the year 2008. So also all the glass and mirror items marked 2008 as the year of manufacturing of the vehicle. The other complaints are regarding fuel efficiency, low mileage and the very poor visibility of head lamp. Obviously the normal life of the tyre is expected to be 40,000 kms. whereas the tyres used in the vehicle purchased by the complainant had worn out even though the vehicle covered only 14,000 kms. It is also alleged that there is pitting and corrosion in different parts of the body of the vehicle. It is also alleged that the vehicle was using as a model car prior to the sale of the vehicle. The vibration of the steering and whole body rattling is very severe and the power windows switch were not working. The vehicle is also having brake pedal acceleration and the materials used are of low quality and defective spares and accessories were used in the vehicle. These defects were immediately brought to the notice of the opposite parties through written complaints and reminders to replace the car with a defect free vehicle was not resolved which amounts to unfair trade practice on the part of opposite parties by delivering a defective vehicle under the guise of brand new vehicle. The complainant alleges serious manufacturing problems and defects in vital components beyond rectification and filed this complaint for replacement of a new vehicle or for refund of the price along with the insurance, registration expenses totaling to Rs.5,20,369/- and 12% interest per annum from the date of purchase. He also claimed compensation of Rs.2,00,000/- towards compensation and punitive damages for the loss and injury caused to the complainant. Further directions sought for is to direct the 2nd opposite party to pay the corporate bonus of Rs.4,000/- with interest @ 12% per annum and also cost of proceedings.
3. The 1st opposite party filed version contending that the complaint is filed on vague and ill motivated intention. It is contended that the vehicle was delivered after carrying out pre-delivery inspection of the vehicle. The vehicles are dispatched to the authorized dealers of the opposite party and the dealers carried out pre-delivery inspection of all the cars before selling it to the customers and the standard check-list is assured by the dealers and it is mandatory to note it in the job card. The quality performance of the vehicle is provided with warranties and its specifications. The Automobile Research Association of India issued certificate to all vehicles manufactured in India after thorough test and reliability for commercial production as per the instructions of the Ministry of Industries, Government of India. In order to prove the manufacturing defect the complainant has to prove the allegation U/S 13(1)c of Consumer Protection Act 1986. The prayers of the complainant are absolutely untenable and vague. It is contended that the manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect appears which can be rectified or replaced under warranty. Hence the complaint is only to be dismissed for making the 1st opposite party for mis-jointer of unnecessary party. No manufacturing defect is proved or the defects alleged are not sustainable.
4. It is the contention of the 2nd opposite party that the allegation in the complaint is false and it is filed on an experimental basis without any bonafides. The purchase was taken place on 23/05/2009 and the discount offer was already given to the complainant along with benefits like free accessories, additional discount at the time of purchase. The additional 2 year warranty expired on 22/04/2011 and the complaint is barred by limitation U/S 24(A) of the Consumer Protection Act. The vehicle delivered in May 2009 would definitely have parts which were manufactured in the year 2008, the process of assembling the parts in the car at 1st opposite party’s factory and sending the car to the dealer would take 6 to 9 months. It is also contended that the fuel efficiency depends upon the nature of driving, the traffic conditions and the terrain where the vehicle is used. It is also not possible to get good mileage in city traffic. The 2nd opposite party has thousands of vehicle sold and still remain in the business for the last 10 years. This opposite party has shown responsibility and was ready to provide service prior or after the expiry of warranty period. It is also asserted that a defect free vehicle was sold to the complainant. It is also stated that the Demo Cars have to be registered in the name of the dealer and its R.C Book would show that the registration details. Hence the allegation made by the complainant is totally false. The opposite party had not replied the notice sent since the contents therein did not merit any reply. Hence the allegation of unfair trade practice and deficiency in service are untenable and the complaint is liable to be dismissed.
5. The 3rd opposite party stated in the version that apart from the normal rattles and vibrations which occur due to the weather condition, no serious or unnatural rattles/vibrations noticed in the vehicle. This defect was rectified by the 3rd opposite party and also the alleged trouble regarding accelerator was also rectified being a minor problem in the cable. The complainant had taken delivery of the vehicle after service with full satisfaction. It is also contended that the complaints in the vehicle pointed out by the complainant had rectified and repaired. The low fuel efficiency was rechecked and the fuel mileage was conducted in the presence of the complainant and the complainant was satisfied with the test results. The fuel efficiency and the drivability of the engine is highly acclaimed and the complainant is raising false allegations in order to file the complaint. The opposite party is a prestigious and highly reputed passenger car dealer and service centre for passenger vehicle. The complainant had included the opposite party in the party array without any specific or tenable allegations and is not a necessary party to the proceedings. The complaint is filed for the purpose of enriching undue benefits by filing false complaint and there is no deficiency in service on the part of this opposite party and the complaint is only to be dismissed.
6. The complainant was examined as PW1 and Exbt.A1 to A7 and C1 marked on the side of the complainant. On the part of opposite parties DW1 and DW2 were examined and Exbts.B1 to B3 were marked in evidence. Based on the documents the Forum came to the conclusion that the fuel efficiency of the vehicle is not satisfying and vehicle corrosion is very high. The Forum ordered to replace the vehicle with a new one and also directed the complainant to pay 10% of the price of the value as per Exbt.A1 to the opposite party. Further direction is to return the defective car and also directed the 2nd opposite party to pay Rs.4,000/- to the complainant the offered corporate bonus. This order is under challenge in A.436/13 by the appellant/1st opposite party.
7. It is submitted by the counsel for the appellant/1st opposite party that the car was regularly servicing at the authorized service station of the 2nd opposite party. The vehicle is not in an abandoned condition and the 1st respondent is using the vehicle regularly. Presently the vehicle has covered more that 25,000 kms. The corrosion if any with the vehicle was not present at the time of taking delivery of the vehicle. It depends on where the vehicle is stationed and the usage of the vehicle by the respondent. Further corrosion is a curable defect and it had already cured by the authorized service agents. No scientific reasons stated by the Commissioner for having the corrosion in the vehicle. It is the prime duty of the Commissioner to point out the scientific/technical reasons while filing the commission report. It is admitted by the appellant that the Commissioner was not cross examined whereas the 2nd opposite party had already filed a petition to reopen the evidence and to cross examine the Commissioner which not allowed by the Forum Below and the Interim Application was dismissed. Hence the opportunity to cross examine the Commissioner was denied to the appellants/opposite parties. The cosmetic defects of the vehicle are all curable and for a curable defect no replacement can be allowed and the counsel relied on the Hon’ble Supreme Court Decision in Maruti Udyog Ltd. Vs. Susheelkumar Gabgotra and Another (2006) 4 SCC 644 wherein it is decided that the replacement of entire item or replacement of defective parts only call for. The obligation is restricted for repair or replace any part shown to be defective with a new part of equivalent at no cost to the party. In this case nothing is brought out to show the vehicle is having any manufacturing defect in the Commission Report. The Forum had gone beyond the settled position of law and the order is only to be set-aside. In the instant case, the summary of the report is to the effect that the vehicle fuel efficiency is not satisfying the advertisement value and the vehicle is having high corrosion. The Commissioner had gone beyond the technical report and has opined about the service quality and the customer relation which is not warranted in a Commission Report. The finding of the Commissioner does not point out any manufacturing defect to the vehicle. The vehicle purchased in the year 2009 and has covered around 25000 kms in 2012 and it is submitted that the respondent is regularly using even now. The vehicle is not in a break down condition is self explanatory that the respondent is using it daily. It is argued that no replacement of the vehicle is advisable in the case of a curable defect in the vehicle.
8. The 1st respondent was represented by the authorized agent. It is argued that the 1st respondent purchased the vehicle for an amount of Rs.4,70,364/- on 23/05/2009. The relief sought for is the replacement of the car with a new one or refund its price with interest together with insurance and registration charges and also to pay corporate bonus of Rs.4,000/- with interest. It is submitted that the opposite party had not rectified the defects and it is also alleged that the manufacturing date of all the 5 tyres, glass and mirror items were of the year 2008 and the tyres become defective within 14,000 kms. The other defects pointed out are corrosion, defect in power window switch, vibration of steering and vehicle and self acceleration while on a brake. The corporate bonus offered was not paid by the dealer it is also alleged that the vehicle is having inherent manufacturing defect. The assured mileage for the vehicle and the fuel efficiency was not satisfying which is against the offer made in advertisement by the opposite parties. The complainant produced relevant documents for over all evaluation of evidence and also findings of the expert commissioner as C1 to show the findings of the expert commissioner. This appeal is filed against the error committed by the Forum Below in its order as the difference in the price is to be met by the complainant is untenable. The appellant/complainant is entitled for compensation on account of the low fuel efficiency and the depreciation of the vehicle is to be met by the complainant is not justifiable. It is also argued that the appellant is entitled to get the same model and same model vehicle without any cost difference. The appellant is entitled to receive the same model car at the original price paid 4 years back. The appellant is entitled to get a hassle free vehicle instead of the vehicle with defects. The 1st respondent had to suffer mental agony and hardship for the long 4 years due to the unfair trade practice of the opposite parties. He also prayed to modify the award allowing to the car without imposing conditions and with other reliefs and exemplary cost.
9. We have heard both parties in detail and had gone through the records. The allegation of the complainant that the vehicle is a demo car was contradicted as it does not possess the dealer’s certificate of registration. For a demo car the certificate of registration is to be taken in the name of the dealer and in this case this is a brand new car. The other allegation is with regard to the manufacturing date of the tyres and glass items. The vehicle purchased in the month of May 2009 and the vehicle can be made available to the dealer after various processes and naturally the year of manufacturing of the spare parts will be 2008. It is also evident that a vehicle will be ready for sale and would take 6 to 9 months to deliver a vehicle from the factory. Now coming to the defects alleged by the complainant that the vehicle is having low mileage than assured in the advertisement. It is clear from evidence that the vehicle is showing 18.85 kms instead of 22.4 kms. The mileage of a vehicle depends on the road condition, the terrain and driving habits of the driver. The allegation of the complainant is that the vehicle is having only 13 kms whereas on inspection it is found that the mileage is 18.8 kms. It is evident from the service report that the head lamp was replaced under warranty. With regard to the defects in power window switch which was replaced under warranty is clear from the service history adduced by Exbt. B1 series. It is evident from service history that the rear left hand door handle was replaced and the fuel mileage was also checked. It is also clear from the service history that on 24/07/2010 at 9340 kms the vehicle was taken to the Focus Motors Service Dealer of the 1st opposite party for accident repairs. It is on record that the complainant had sent several mails to Chennai, Mumbai to the Regional Manager and Assistant General Manager of the opposite parties. The main allegation raised in the complaint is due to the low mileage and the defect in the accelerator. Along with the Expert Commission report produced the photographs of corrosion condition of the vehicle. It is reported that the left rear door panel, dickey balancer assembly 2 numbers headlight and Fog lamps both left and right were found to be replaced at the 3rd opposite party dealer of the 1st opposite party. It is also reported that the left rear power window switch were replaced more than one time. From all these we have to come to the conclusion that the vehicle was having certain defects which were attended by the service personnels of the opposite parties. Even then the mileage assured was low than advertised by opposite parties. A customer is expected to get a vehicle defect-free and if at all any defect occur it should be rectified by the manufacturers as per warranty conditions. In this case, many of the defects were attended but we have to point out that certain defects are yet to be rectified to the satisfaction of the customer.
10. It is submitted that the appellant/complainant received Rs.4,000/- as per the order of Fourm Below and he has no grievance against 2nd opposite party in that matter. In the instant case, the manufacturing defect is not reported by the Commissioner and as per the settled position of law the replacement of the vehicle is not warranted.
11. We are of the considered view that the opposite party/appellants (A.436/13) are directed to rectify the corrosion/defects in the car within a month and also to pay a sum of Rs.1,00,000/- as compensation failing which the opposite parties are liable to pay interest @ 9% till realization.
In the result, appeal No.436/13 is allowed in part and A.363/13 is dismissed. The order is to comply within 30 days on receipt of the copy of the order.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.363/2013
& APPEAL NO.436/2013
COMMON JUDGMENT
DATED 30/05/2014
Sa.
