O R D E R

SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complaint for realization of repairing charges, compensation costs etc.

          The averments in the complaint can be briefly summarized as follows:

          The complainant has purchased Maruti Alto car with chasis No.773863 and Engine No.4137389 on 28.10.2006 from the 3^rd opp.party, which was registered with Reg.No.KL-24/3002.  The vehicle was purchased  by availing financial assistance from ICICI Bank, Kollam.   The vehicle was having warranty coverage of 2 years.   The complainant was availing the regular services from the 3^rd opp.party at Elampal and Kollam.  He has not serviced the vehicle at any other service station.   While so on 8.9.2007 the complainant was driving the car and all of a sudden  the vehicle stopped  The vehicle got restarted only after 5 miniutes.   The complainant immediately brought the vehicle to the workshop of the 3^rd opp.party.  After examination  the Supervisor of the 3^rd opp.party  informed the complainant that the engine of the vehicle is having complaint which is the reason for  the vehicle  to stop abruptly.   The supervisor further informed that the radiator of the vehicle is also defective and   he informed the complainant that a  sum of Rs.25,000/- would be  required for repairing the vehicle and that  warranty conditions are not available it was only 11 months  have lapsed,  after the purchase of  the vehicle  and so the complainant insisted on getting warranty benefits  However, the opp.party did not extent the benefits.   Finally the vehicle has to be taken to another authorized workshop of Indus Motors and got the same repaired spending a sum of Rs.13,424/-.  The complainant could not  use the vehicle for 59 days Thereby he had spent considerable money on account of the conduct of the opp.parties.  Hence the complaint.

          The opp.parties 1 and 2 filed a joint version contending, interalia  that the complaint is not maintainable either in law or on facts.   The complainant is not a consumer  within the meaning of Section 2 [1] [d] of the Consumer Protection Act.1986.    The complainant failed to set out any case  for deficiency in service or unfair trade practice  .  The liability of  these opp.parties under the warranty which is  part and parcel of sale contract is specific.  The averment in para 3 of the complaint are  not correct and hence denied.   The vehicle is   used in a negligent manner   The  body  of the vehicle was repaired on 17.1.2007 and accidental repairs on 3.3.2007 at 5450  and 8741 kms which was necessitated due to negligent  and improper  timely maintenance.    On 8.9.2007 the vehicle was brought to opp.party 3 in engine ceased condition.   The service engineer observed  that certain repairs were carried out  by unauthorized workshop.   The engine of the vehicle was ceased  due to overheating because of improper cooling.   The repair of the car was get  repaired from unauthorized source resulting in improper cooling and seizure  of engine.  The damages to the radiator was due to external damages and not  on account of manufacturing defect as alleged  by the complainant.  The obligations of the opp.parties for repairing the vehicle under warranty strictly as per clause 3 and 4 of the owner’s manual.     The complainant has no right to raise any claim for repair or replacement of damaged components which are not covered under the warranty.     This fact was informed to the complainant  who took the vehicle  from the workshop of opp.party 3  without availing repairing on paid basis.  The complaint is devoid of merits there is no deficiency in service or unfair trade practice.  Hence the opp.parties prays to dismiss the complaint.

Opp.party filed a separate version with more or less identical contentions

Points that would arise for consideration are:

1.     Whether there is any deficiency in service  on the part of the opp.parties?

2.     Reliefs and costs.

For the complainant PW.1 is examined.   Ext.P1 to P5 are marked.

For the opp.parties DW.1 and 2 are examined.   Ext.D1 to D13 are marked.

POINTS;

There is no dispute that the vehicle was purchased by the complainant from the 3^rd opp.party and that on 8.9.07 when the same was brought  to the workshop of the 3^rd opp.party it was under warranty period It is also not in serious dispute that opp.party 3 refused  to repair the vehicle under the warranty conditions and informed the complainant that the repair charges on paid basis would come of Rs.25,000/-  The case of the complainant is that while he was driving the car it  abruptly stopped  and it could be restarted after about 5 miniutes and according to the complainant this happened due to manufacturing defect of the vehicle

          Though  a contention is raised  that there is manufacturing defect no expert evidence was adduced by the complainant to establish this aspect.   It has come in evidence this vehicle had run  17,000/- kilometers as on 8.9.07.   PW.1 admitted that till them no manufacturing defect was noticed.   The opp.party 3 noticed  at the time when the vehicle was brought for repair there were altogether 7  damages.  Four main damages were Radiator repaired with Tinker paste, Engine Oil burned condition, 2^nd and 3^rd cylinder water entered condition and there was no coolant in the radiator.  The definite contention of the opp.party is that the engine seizure was  for want proper periodical maintenance and not due to  any manufacturing defect.  As a matter of fact PW.1 admitted that the vehicle met with  accident many time prior to this date and the same was repaired by opp.party 3 earlier.  It is argued by the opp.party 3 that  accident repairs are not covered as per warranty conditions.  It is the definite contention of the opp.party that the incident occurred due to so many accident sustained to the vehicle and due to lack of proper service.  It is further argued that the vehicle was got repaired from outside agencies which will disentitle the complainant  the  benefits warranty conditions.

          As pointed out earlier the complainant  failed to adduce to any  expert evidence to establish manufacturing defect to the vehicle.  The complainant has also failed to produce the owner’s manual for reasons best to known to the complainant  who  is claiming the benefit of warranty conditions.   It is pertinent to point out that the vehicle has involved  in many accident which can cause damage to the radiator and the engine  and the burden to establish that  it was due to manufacturing defect is  on the complaint which  he failed to discharge.   So the contention that the incident occurred due to manufacturing defect cannot be accepted.

          It is an admitted fact that the complainant has taken the vehicle on 8.9.07 to the workshop of opp.party 3 in an engine seizure conditions with certain other defects.   The supervisor of the opp.party 3 has inspected the vehicle and informed that repair under warranty is not available and  that the repair charge would come to Rs.25,000/-.   The complainant dissatisfied with the  attitude of opp.party 3 took the vehicle to the workshop of Indus Motors who is another authorized dealer of Maruthi vehicle who repaired the vehicle for Rs.13,424/- evidenced by Ext.P5  As argued by the learned counsel for the complainant the opp.party 3 without repairing the vehicle has compelled  the complainant to take the  same to another workshop.  Whether the vehicle can be repaired on warranty condition or otherwise opp.party 3 has a duty to inspect the vehicle properly and inform the probable expenses.   In this case the opp.party 3 informed the complainant of inflated repairing charges of Rs. 25,000/- and this vehicle was repaired by another authorized dealer on  much reduced amount evidenced by Ext.P5.   The conduct of opp.party 3  in giving  inflated bill and  scaring away the complainant, in our view, is deficiency in service and unfair trade practice for which opp.party 3 is liable to pay compensation   The complainant cannot claim  damages for payments made to the financier  without  utilizing the vehicle. Point found accordingly.

          In the result the complaint is allowed in part, directing the opp.parties to pay the complainant a sum of Rs.1,500/-  towards compensation  for deficiency in service and costs.  The order is to be complied with  within one month from the date of this order.

            Dated this the 26^th   day of February, 2011

                                                                                    I N D E X

List of witnesses for the complainant

PW.1. – Satheesan

List of documents for the complainant

P1. – Notice dt. 12.9.2007

P2. – Reply notice dt. 17.8.2007

P3. – Advocate notice, postal receipt and A/C. card.

P4. – Reply notice

P5. – Bill of Indus Motores

List of witnesses for the opp.parties

DW.1. – Samir Jain

DW.2. – Omanakuttan Nair

List of documents for the opp.parties

D1. – Pre-Delivery Inspection

D2. – Warranty Policy

D3. – Job card

D4. – 2^nd Job card

D5. – 3^rd Job card

D6. – Letter to customer

D7. – Job Card issued by Indus Motos

D8. – Letter by Indus Motors

D9. – Job card by Sarathy

D10. – Vehicle History

D11. – Job card

D12. – Photo graphs

D13. – Letter dated 8.10.2007