PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of April 2012
Filed on :03/11/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.585/2010
Between
K.T. Kuriakose, : Complainant
Karuthedathu, Thiruvaniyoor, (By Adv. Vivek Varghese P.J.,
Puthencruz, Ernakulam. M/s. Varghese & Jacob, Puthoor,
Near KSRTC Bus Stand, Mahakavi
Bharathiyar road, Ernakulam)
And
1. TATA Motors, : Opposite parties
Bombay House, 24, (By Adv. V. Krishnamenon,
Homi Mody Street, Fort, Menon & Menon, HRS Complex,
Mumbai- 400 001. 1st floor, SRM Road, Kochi-18)
2. Concorde Motors (India) Ltd.,
#10, 256/C, Survey No. 1562/1,
Nettoor,Ernakulam-682 040.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is the registered owner of the Fiat Palio car bearing Regn. No. KL-17A6012. On 23-09-2009 the complainant approached the 2nd opposite party to rectify the defects of the vehicle. The 2nd opposite party agreed to redeliver the car after the rectification of the defects on 27-09-2009. Time and again the complainant had to approach the 2nd opposite party to deliver the vehicle, in which they failed. They could redeliver the car only on 28-12-2009. They levied a sum of Rs. 80,000/- for repairs. However they failed to rectify the defects. The engine oil of the vehicle was leaking and air conditioner completely stopped working and the vehicle became unusable. On several occasions the complainant requested the 2nd opposite party to repair the defects but to no avail. On 05-04-2010 the complainant caused a lawyer notice to the opposite parties demanding compensation, the 1st opposite party alone responded to. On 16-06-2010 the complainant approached RF motors another authorized service centre of the 1st opposite party. The repaired the vehicle and returned the same on 24-07-2010. The complainant had to incur a sum of Rs.66,278/- towards cost of repairs. The 2nd opposite party is liable to refund Rs. 80,000/- with interest. The complainant had to make alternate arrangement for his travel from 23-04-2009 to 24-07-2010. He quantifies the compensation at Rs. 1,50,000/-. Thus the complainant is before us seeking direction against the 2nd opposite party to pay a sum of Rs. 2,30,000/- with interest together with Rs. 10,000/- towards costs of the proceedings.
2. The version of the 1st opposite party is as follows.
Complainant is not a consumer as defined in S. 2(1) (d) of the Consumer Protection Act. The complainant has filed the complaint alleging problems in the car without having produced any expert opinion. The complainant approached the 2nd opposite party; with his vehicle on 23-09-2009 for attending to certain repairs. Since the spare parts were not readily available with the 2nd opposite party, they would have to be obtained from other sources. This fact was informed to the complainant and he had duly acknowledged this fact and was ready and willing to wait till the necessary spare parts are obtained. In December 2009 the 2nd opposite party obtained the spare parts and carried out the repairs and returned the vehicle to the complainant on 28-12-2009. At no parts of time after 28-12-2009 has the complainant approached the 2nd opposite party with the grievance that the earlier complaints had not been rectified and persisted. It is understood that on 09-06-2010 the engine of the vehicle had seized on account of oil leakage . The attempt of the complainant to correlate the works undertaken by the 2nd opposite party and that under taken by M/s. RF Motors Pvt. Ltd. Complainant has no cause of action against the 1st opposite party.
3. The 2nd opposite party filed separate version raising the similar contentions that of the 1st opposite party.
4. The complainant was examined as PW2 and the witness for the complainant was examined as Pw1, Exts. A1 to A6 were marked on the side of the complaint . The witnesses for the opposite parties were examined as DWs. 1 & 2, Exts. B1 was marked on their side. Heard the learned counsel for the parties.
5. The points that arose for consideration are
i. Whether the complainant is a consumer?
ii. Whether the complainant is entitled to get a compensation of
Rs. 2,30,000/- from the opposite parties?
iii. Whether the opposite parties are liable to pay costs of the
proceedings to the complainant.
6. Point No. i. The contention of the opposite parties that the complainant is not a consumer can not be sustained for the reason that they have not proved otherwise to the two contentions raised by them. We are at a loss to accede to or allow the same. Rejected hence.
7. Point No. ii. The parties are in consensus on the following issues.
a. The 1st opposite party is the manufacturer and the 2nd is the
authorized dealer cum workshop of the 1st opposite party.
b. The complainant entrusted his car bearing registration No.
KL-17A 6012 with the 2nd opposite party for its repairs on 23-
09-2009 evident from Ext. A2 job sheet.
c. The 2nd opposite party redelivered the car to the complainant
on 28-12-2009 after its repairs.
d. The 2nd opposite party collected a total sum of Rs. 80,000/-
from the complainant towards repair charges evident from
Ext. A3 repair charges evident from Ext. A3 tax invoice.
e. RF Motors (P) Ltd an authorized workmanship of the 1st
opposite party accepted the vehicle for repairs on 16-06-
2010 and redelivered the same on 24-07-2010 after its
repairs.
f. The complainant had to spend Rs. 66,278/- for the repairs at
RF motors evident from Ext. A1 tax invoice dated 24-07-
2010.
8. DW2 the witness for the 2nd opposite party who is a qualified automobile engineer stated that there was no engine oil leakage from the engine body, but there was too much consumption of oil that is the reason only oil was losing at higher scale. He also stated that he had found out the engine cylinder head was work out due to normal wear and tear. He further stated that the solution prescribed was engine overhauling.
9.PW2 is the service (works manager) of RF motors who repaired the vehicle subsequent to the repair of the 2nd opposite party. He deposed that they have conducted overhauling of the engine of the complainant’s car.
10. The learned counsel for the opposite parties vehemently and vigorously argued that there is no deficiency in service or negligence on the part of the opposite parties in repairing the vehicle. Further he contended that there is no expert evidence on record to substantiate the averments of the complainant. The counsel relied on the following decisions rendered by the higher judiciary.
a. Union Bank of India Vs. M/s. Seppo Rally OY & Ors III (1999) CPJ 28 (SC)
b. Ravneet Singh Bagga Vs. M/s. KLM Royal Dutch Airlines and Anr. III (1999) CPJ 10(SC)
c. K. Varkey Varghese Vs. Oriental Insurance company Ltd., II (2001) CPJ 422.
11. Admittedly the vehicle had run more than one lakh kilometers when the complainant approached the 2nd opposite party to repair his car. After that the 2nd opposite party had conducted engine over hauling and collected charges for the same. Even according to DW2 the vehicle can be plied for 20000 kms more after the engine overhauling. But the complainant could ply the vehicle only 7000 kms after the overhauling done by the 2nd opposite party. He had to overhaul the vehicle again within a span of short time in spite of the undertaking on the part of the 2nd opposite party that the vehicle can be plied for 20000 kms more without any exigencies. No satisfactory explanation is forthcoming on the part of the opposite partly as to why the complainant had to approach another approved workshop of the 1st opposite party to get the vehicle repaired. This is a case where the doctrine of ipsa-loquitur applies squarely. In the aforesaid circumstances we have no hesitation to hold that there is deficiency in service on the part of the 2nd opposite party in repairing the vehicle of the complainant. So the 2nd opposite party is liable to refund the amount received from the complainant towards over hauling of the vehicle as per Ext. A1 tax invoice. There is no evidence before us to substantiate the other contentions raised by the complainant. The contention of the complainant having been met substantially no costs are reasonably allowed. Wherein law has to be held unequivocal. We do not differ the law speaking for itself cannot be controverted.
12. In view of the above we are not to consider the argument of the opposite parties that there is no expert evidence to substantiate the contentions of the complainant. Therefore we hesitate to reply on the decisions submitted by the opposite parties.
13. In the result, we partly allow the complaint and direct that the 2nd opposite party shall refund the amount as per Ext. A1 tax invoice.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 30th day of April 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of tax invoice dt. 24-07-2010
A2 : Copy of job slip dt. 23-09-2009
A3 : Copy of tax invoice dt. 13/09/2009
A4 : Copy of letter dt. 05-04-2010
A5 : Copy of letter dt. 19-04-2010
A6 : Copy of invoice dt. 23-09-2009
Opposite party’s Exhibits :
Ext. B1 : copy of job card/workshop copy
Depositions:
PW1 : Satheeshkumar MB
PW2 : K.T. Kuriakose
DW1 : Shaji Valasseri
DW2 : Narayana Swamy P.R
