DATE OF FILING : 22.9.2010

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of December, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.199/2010

Between

Complainant : Joy, S/o Mathew,

Puravakattu House,

Rajakumari South P.O.,

Udumbanchola

Idukki District.

(By Adv : Saju Varghese)

And

Opposite Parties : 1. The Customer Service Manager,

M/s Maruthi Udyog Ltd.,

1, Nelson Mandela Road,

Vasant Kunj,

New Delhi – 110 070.

(By Adv: V.K. Shaji)

2. The Customer Service Manager,

M/s Popular Vehicles Sales & Services,

Kuttukaran Centre, Mamangalam,

Ernakulam – 682 025.

3. The Manager,

M/s Maruthi Service Centre,

Thangalam, Kothamangalam P.O.,

Ernakulam District.

(Both by Adv:George Cherian Karippaparambil)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant purchased a Maruthi Alto Car from the 2^nd opposite party on 9.1.2009. The vehicle was delivered at complainant's residence at Rajakumari. At the time of purchase of the vehicle, the 2^nd opposite party offered 3 years extra warranty and 1 year free service and also assured that the proper services will be available for the vehicle including the availability of the spares. On the very next day of the delivery itself, the complainant felt some mechanical defect to the vehicle. The main defect was clutch shivering, clutch disc worn out early and steering box shake. The complainant duly intimated the same to the 3^rd opposite party, the authorised service station Manager, at Kothamagalam. But there was no response. Thereafter, on the 2^nd and 3^rd service, written complaint was given to the 3^rd opposite party and it is recorded in their register. The 3^rd opposite party informed that the defect of the vehicle is a manufacturing defect and he would inform the dealer and the manufacturer to make solutions for the defect. But till no action has been taken from the 1^st and 2^nd opposite parties. The complainant is having a driving license from 1979 onwards and the vehicle has run only 23,000 Kms. But the clutch of the vehicle is totally worn out. The 3^rd

(cont....2)

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opposite party demanded a huge amount for the replacement and service of the clutch. A lawyer's notice was issued on 8.7.2010 to the 2^nd and 3^rd opposite parties demanding to cure the mechanical defect of the vehicle. But no action has been taken by the opposite party and hence the complaint filed.

2. As per the written version filed by the 1^st opposite party, the liability to the extend of the opposite party under the warranty which is part and parcel of the sale contract is specific as set out under the warranty policy as enumerated in the owner's manual and service booklet. The answering opposite party neither invoices nor earmaks any individual vehicle in favour of any individual customer at the time of despatch from its factory to its dealers. Therefore, the answering opposite party has no involvement in the transaction of sale of vehicle to the individual customer. The ownership of vehicle passes on to dealers at the factory gate of this opposite party when the same is put for despatch. It is further submitted that the relationship between the answering opposite party and the dealer is that of Principal-to-Principal basis only as per the Dealership Agreement executed between the opposite parties. It is emphatically denied that the vehicle was delivered with an extended warranty for a term of 3 years as alleged by the complainant. The opposite party being the manufacturer of car in question stands warranty for a term of 24 months or 40,000 Kms whichever event occurs first from the date of delivery to the first owner and extended further on payment of additional premium for 3^rd year or upto 60,000 Kms and 4^th year or upto 80,000 Kms from the date of sale of new car, whichever is earlier, after the expiry of primary warranty of 2 years/40,000 Kms. The said warranty is not absolute and is subject to certain terms, conditions and limitations provided at the time of sale by 2^nd opposite party which is part and parcel of sale contract. The complainant to his entire free will and volition paid the additional premium to the 2^nd opposite party for availing facility of extended warranty. The dealers at the time of sale to their customer's carryout final PDI (Pre-Delivery Inspection) of all vehicles ensuring the same are safe and in perfect OK roadworthy condition leaving no place for defects in vehicle. Here it is imperative to mention that the complainant took the delivery after his due satisfaction from the showroom of 2^nd opposite party without any protest and demur. It is submitted that the complainant did not report any problem at the workshop of 3^rd opposite party. As per records, the complainant sent his vehicle at the workshop of the 2^nd opposite party for obtaining 1^st, 2^nd and 3^rd free inspection services on 17.2.2009 at 906 Kms, on 24.5.2009 at 5520 Kms and on 1.8.2009 at 9291 Kms respectively. At the time of obtaining said

services, complainant did not point out alleged problems and sought minor adjustments normal wear and tear/routine maintenance services were carried out as per maintenance schedule. The services were carried out to the entire satisfaction of complainant as is evident from the signature of the complainant on the job cards and gate passes. It is submitted that there was no problem in clutch system or steering box as stated by the complainant. The vehicle in question was/is defect free and in perfect roadworthy condition. It is submitted that as evident from records, the complainant brought the vehicle at the workshop of the 2^nd opposite party for obtaining 4^th paid service on 12.12.2009 after plying 15,960 Kms. The complainant reported brake check, front wheel side noise, door lock knob check, injector cleaning, check suspension bushes, steering check, etc., upon which the vehicle was thoroughly inspected by the expert service engineer of the 2^nd opposite party and minor insignificant adjustments were made which are required during the use of the vehicle as enumerated in periodic maintenance schedule. Here it is pertinent to mention that the complainant did not point out any defect in clutch at the time of obtaining said service. The complainant took the delivery of the vehicle after service to his entire satisfaction without any protest and demur as is evident from his signatures on the job card, invoices and gate pass. It is submitted that as evident from records, the complainant sent his vehicle at the workshop of the 2^nd opposite party for obtaining running repairs on 19.2.2010 at 19737 Kms. At the time of obtaining said service, the complainant

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neither point out any problem in the vehicle nor any abnormality was observed by the expert service engineer of the 2^nd opposite party. Plug cleaning and under body wash was reported by the complainant and demanded jobs were carried out to the entire satisfaction of complainant, as evident from signatures of the complainant on the job card and gate pass, which also substantiate perfect OK and roadworthy condition of vehicle in question. It is submitted that as per records the complainant brought the vehicle at the workshop of the 2^nd opposite party for obtaining paid service on 2.7.2010 after plying 22,767 Kms. The complainant for the first time reported problem in clutch upon which clutch was checked along with minor adjustments, normal wear and tear required during extensive plying of vehicle. Here it is pertinent to submit that the clutch is not covered under the ambit of warranty. The life of the clutch depends upon the driving habits of every customer and may get worn out early due to its excessive use. For instance if the foot resting on the clutch pedal, while driving it could result in excessive clutch wear, clutch damage. Moreover, if the driver pumps clutch pedal repeatedly, it may result in pressure built up in the clutch circuit and cause damage to the clutch system. Since clutch is a wear and tear item, as per clause 4(a) the warranty shall not apply to – clutch. It is submitted that the dealers are independent entities having their own Memorandum of Articles of Association. As per clause 5 of the dealership agreement, the dealer shall not be deemed to be the agent or representative for any purpose and the dealer shall not describe or represent itself as such. It is submitted that the complainant has no cause of action against this opposite party. More so it is pertinent to note that the complainant has plied more than 23,000 Kms which is a testimony of its perfect OK and roadworthy condition and free from any defects. It is submitted that no cause of action arose at Rajakumari and the complainant obtained the warranty services at the workshop of the 2^nd opposite party is situated at Elamakkara, Cochin. Hence this Forum has no jurisdiction to entertain, try or adjudicate upon the present case.

3. As per the written version filed by the 2^nd and 3^rd opposite parties, the opposite parties have no branch office within the territorial jurisdiction of this Forum and no part of the cause of action has arisen within the territorial jurisdiction of this Forum. The service centre of the 3^rd opposite party is at Kothamangalam in Ernakulam district. As per the sale certificate of the vehicle and the insurance policy of the vehicle, it is clear that the vehicle was delivered to the complainant at Ernakulam and not at Rajakumari as alleged by the complainant. At the time of purchase, the 2^nd opposite party never offered 3 years extra warranty to the complainant. The warranty given by the

manufacturer of the vehicle M/s Maruthi Suzuki India Ltd., is for 2 years or 40,000 Kms whichever occurs earlier subject to the limitations prescribed in the warranty terms. The complainant had paid Rs.1,790/- for getting extension of warranty for the 3^rd year or upto 60,000 Kms, whichever occurs earlier. The extension of warranty is also subject to the limitations prescribed in the warranty terms. The complainant had brought the vehicle for first service on 17.2.2009 at 906 Kms. The 3^rd opposite party had received the vehicle as per job card No.1548 and the works pointed out by the complainant were head light focus, fixing number plate properly and door rattling. The 3^rd opposite party after effecting the aforesaid service had delivered the vehicle on the same day and the complainant after test driving the vehicle had endorsed full satisfaction of the service in the job card. Complainant had brought the vehicle to the 3^rd opposite party for 2^nd service on 19.5.2009 at 5520 Kms. The 3^rd opposite party had received the vehicle as per job card No.129. The demanded repairs were tyre rotation, break checking and rear seat sound. The 3^rd opposite party after effecting the aforesaid service had delivered the vehicle on the same day and the complainant after test driving had endorsed full satisfaction of the service in the job card. The complainant had brought the vehicle to the 3^rd opposite party for 3^rd service on 1.8.2009 at 9291 Kms. The 3^rd opposite party had received the vehicle as per job card No.09001507. The demanded repairs was 3^rd service only. The 3^rd opposite party after effecting the aforesaid service had delivered the vehicle on the same day and that

(cont.....4)

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complainant after test driving had endorsed full satisfaction of the service in the job card. The complainant on 2.7.2010 at 22,767 Kms brought the vehicle for 2 years or 20,000 Kms service, whichever occurs earlier. The 3^rd opposite party had received the vehicle as per job card No.10001741. On that day the complainant for the first time had raised the complaint of defect in clutch. The 3^rd opposite party on examination had given an estimate for 20,000 Kms service as Rs.5,150/- and for clutch repair Rs.4,200/-. The clutch system being wear and tear item the manufacturer of the vehicle M/s Maruthi Suzuki India Ltd., had clearly excluded the clutch assembly from the coverage of original warranty as well as from the extended warranty as stipulated in the terms and conditions of the original warranty and the extended warranty. Hence the complainant is liable to pay for the repair of clutch assembly. If there was any manufacturing defect in the clutch assembly, complainant's vehicle would not have been covered 22,767 Kms within one and half years of purchase without any complaint. On receipt of the lawyer notice, 2^nd and 3^rd opposite parties had caused the issuance of reply lawyer notice clearly stating that the allegations in the notice regarding manufacturing defect in complainant's vehicle is incorrect and expressed 3^rd opposite party's willingness to give proper service on payment of the estimation charges of Rs.4,200/-. The complainant left the service centre of the 3^rd opposite party without carrying out the clutch service on ground of paucity of funds. The counsel for complainant had received the notice on 4.10.2010.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P6 marked on the side of the complainant and oral testimony of DWs 1 and 2 and Exts.R1 to R12 marked on the side of the opposite parties.

6. The POINT :- The petition is filed for getting direction for repairing the clutch of the vehicle of the complainant within the warranty period. The complainant is examined as PW1. PW1 had received the driving license in the year 1979. On the first service itself, the complainant complained about the reverse gear complaint of the vehicle. In the service done on 17.2.2009, 24.5.2009 and on 1.8.2009, the gear problem was noticed to the opposite party. And the clutch complaint was also informed to the opposite party. The opposite party got signed in the job card, only in the last service and not in the other services. On the very next day of the delivery itself, the complainant felt mechanical defect to the vehicle. The main defect felt was clutch shivering, steering box shake. The matter was informed by the complainant to the 3^rd opposite party. But there was no response. A lawyers notice was issued and that is marked as Ext.P1. The complainant produced the vehicle before an independent workshop at Santhanpara and the mechanic of the workshop certified that the new vehicle will not affect the clutch complaint within 25,000 Kms. If it comes that will be due to the fitting complaints. There is also complaint in the steering of the vehicle. The certificate issued from the independent workshop is marked as Ext.P2. The extended warranty cum registration form issued by the opposite party for the service of the vehicle by a payment of Rs.1,790/- is marked as Ext.P3. Copy of the maintenance service record of the vehicle is marked as Ext.P4. The job slip cum demanded repair explanation sheet issued by the opposite party is marked as Ext.P5. On cross examination of the learned counsel of the opposite party, the complainant deposed that the vehicle was delivered at the residence of the complainant by one Mr. Santhosh Isaac, from the opposite party. PW2 who is running an automobile workshop at Santhanpara, issued Ext.P2 certificate. PW2 never opened the clutch of the vehicle. He also deposed that the clutch complaint can be happened due to defect in the driving of the vehicle. In highrange area, there is more chances to clutch complaint. PW1 reported that the vehicle is having

(cont......5)

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clutch complaint as his assumption. Territory service manager of the opposite party was examined as DW1. Dealership agreement for one year is marked as Ext.R3. PDI job card dated 9.1.2009 is marked as Ext.R4. Warranty policy of the vehicle is marked as Ext.R5. The vehicle is manufactured by the 1^st opposite party and undergone stringent quality checks and gets certified that final check OK, before invoicing to the dealers and distributors. The dealers are also carried out a number of tests by experts of vehicles before the sale of vehicle to the customers. The complainant was delivered the vehicle in full satisfaction, free from any defect after going through the aforesaid processes. The complainant brought the vehicle from the opposite party with full satisfaction. As per the owner's manual and service booklet of the vehicle, the warranty shall not apply to clause 4 underlines such as:

a) normal maintenance service required other than the three free services, including

without limitation, oil and fluid changes, headlight aiming, fastener, re tightening, wheel balancing, wheel alignment and tyre rotation, cleaning of injectors, adjustments of carburettor, ignition timing, clutch and valve clearance.

b) the replacement of normal wear parts including without limitation, bulbs, battery,

tyres and tubes, spark plugs, belts, hoses, filters, wiper blades, brushes, contact points,

fuses, clutch disc. Brake shoes, brake pads, cable and all rubber parts (except oil seal

and glass run).

e) Any defect caused by misuse, negligence, abnormal use or insufficient care.

h) Any vehicle which has not been operated in accordance with the operating instructions

in the Maruti Suzuki Owner's Manual.

i) Any vehicle which has not received, during the warranty term, the service inspections

prescribed in the Maruti Suzuki Owner's Manual.

The complainant brought the vehicle to the workshop of the 3^rd opposite party on 17.2.2009 at 906 Kms with job card No.1548. Copy of the same is marked as Ext.R6. The complainant never pointed out any alleged defect and normal service was carried out with entire satisfaction of the complainant. On 24.5.2009 at 5,520 Kms, the complainant brought the vehicle at the opposite party, copy of the same is marked as Ext.R7. But the alleged complaint was not mentioned on that day. Again the complainant brought the vehicle on 1.8.2009 at 9,291 Kms for obtaining the 3^rd free service and delivered the vehicle with full satisfaction. But never raised the same complaint. The

copy of the same is marked as Ext.R8. Again on 12.12.2009, the vehicle produced before the opposite party at 15,960 Kms, but the complainant did not pointed out the same complaint and the vehicle was delivered with full satisfaction of the complainant. Copy of the job card is marked as Ext.R9. On 19.2.2010, the vehicle brought to the opposite party's office and copy of the same is marked as Ext.R10. But no clutch complaint alleged on that day and the vehicle received with full satisfaction of the complainant. On 2.7.2010 at 22,767 Kms, the complainant produced the vehicle before the opposite party for the service and he reported the first time about the clutch problem. The clutch was checked along with minor adjustments. The clutch of the vehicle worn out quickly is due to overriding. The life of the clutch depends on the driving habits of the user and may get worn out early due to excessive use. For instant, if the foot resting on the clutch pedal, while driving it would result in excessive clutch wear and clutch damage. If the driver pump clutch pedal repeatedly it may result in pressure built up in the clutch circuit and cause damage to the clutch system. The clutch is not covered under warranty as per the clause 4 of the warranty policy. DW1 never inspected the vehicle. Without opening the vehicle, the manufacturing defect cannot be confirmed. If there is any manufacturing defect, the vehicle will not run 22,767 Kms. DW2 is the manager of the 3^rd opposite party. DW2 deposed that the complainant never informed the opposite party about

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the clutch complaint except in Ext.R11, the job card issued on 2.7.2010. The customer's signature will not affix on job card, but will get signature at the time of delivery for the satisfaction of the customer. Copy of the insurance of the vehicle is marked as Ext.R12. Staff of DW2 serviced the vehicle. Five services were done at DW2's service station. One service was conducted at 2^nd opposite party's service station. Clutch of the vehicle was not repaired as per Ext.P6 job card invoice, because customer was busy, which needed 4 hours time for repairing the clutch. Estimate was given, but the customer was not having enough money to repair and it was not done. Ext.R1 is the copy of purchase invoice of the vehicle. Ext.R2 is the sale certificate of the vehicle from the opposite party.

As per the complainant, the vehicle was having manufacturing defect which was clutch complaint and it was reported to the opposite party at the time of first service itself. As per the opposite parties, the complainant never reported any manufacturing defect or clutch complaint of the vehicle up to 5^th service of the vehicle. Only on the service of the vehicle at 19,730 Kms, the clutch complaint was reported by the customer to the opposite party which is clear by Ext.R11. Exts. R10, R9, R8, R7 and R6 are the other job cards of the service of the vehicle in which the clutch complaint is not at all mentioned by the complainant. The complainant got delivery of the vehicle with full satisfaction after these services at the opposite party's office. At the time when the clutch complaint was reported, an estimate was given to the complainant and it was needed 4 hours time for repairing, but the complainant was not having enough money to repair the same and he never repaired the same at the opposite party's service station. The warranty policy of the vehicle which is marked as Ext.R5, shows that the warranty is not at all applicable to the clutch disc of the vehicle because it is affecting the normal wear and tear. But the complainant paid Rs.1,790/- extended warranty for 3 years, copy of the same is Ext.P3. As per the opposite party, the clutch complaints of the vehicle was happened only because of the defect in the driving of the vehicle especially in highrange area. But the complainant who is an expert driver, who received the driving license in the year 1979, and he reported the matter to the opposite party in all of the services, but as per the complainant the opposite party never included the same in the job card of the opposite party which is in the custody of the opposite party, but it is mentioned in Ext.R11 job card. But at that time, the vehicle is already covered about 20,000 Kms., and the opposite party demanded an amount of Rs.4,000/- for the repair as per Ext.P5 estimate. PW2 who is an independent mechanic produced a certificate stating that the clutch of the new vehicle will not affect any complaint within 25,000 Kms and if it comes, it means that there is a complaint in the fitting of the same. It is also certified that the complainant is a good driver from 1979 onwards. The steering of the vehicle is also having some sound. It is also fitting complaint of the vehicle, because the vehicle never met with any accident. On cross examination of learned counsel for the opposite party, PW2 deposed that he never opened the vehicle and if there is any clutch complaint for the vehicle that can be confirmed only after opening the vehicle. DW1 also deposed that if there is any manufacturing defect for the vehicle that can be detected only after opening the vehicle. But the vehicle was not opened by DW1. But he deposed that if there was any manufacturing defect of the vehicle, the vehicle would not run 22,767 Kms. So DW1 who is the Territorial Service Manager of the vehicle and the PW2 who is a local mechanic of the vehicle, both parties deposed that if there is any manufacturing defect or clutch complaint of the complainant's vehicle, that can be detected only after opening the vehicle. But it was not done by the opposite party anywhere. So the opposite party never confirmed, whether there is any manufacturing defect to the vehicle. But they assumed that the vehicle will not run 22,767 Kms, if there was any manufacturing defect to the vehicle. As per PW2, the clutch complainant will not affect to a new vehicle within 25,000 Kms and the complainant who is a good driver from 1979, there is no dispute regarding the same for the opposite party. As per the opposite party, the warranty

conditions are not providing the clutch disc of the vehicle. But the complainant paid a huge amount for extending the warranty, even the opposite party never confirmed whether there is any manufacturing defect to the vehicle after when the complainant complained about the clutch of the vehicle. So it is a deficiency from the part of the opposite party and so we think that the opposite party should service the vehicle with free of cost because the vehicle has extended warranty as per Ext.P3.

Hence the petition allowed. The opposite parties are directed to repair the clutch complaint of the complainant's vehicle with original spares at the cost of the opposite parties or pay Rs.4,000/- to the complainant within one month. The opposite parties are also directed to pay Rs.1,500/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30^th day of December, 2010

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Joy Mathew

PW2 - P.K. Chandran

On the side of the Opposite Parties:

DW1 - M.V.G. Krishnan

DW2 - Reghulal. K.N.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - Copies of the lawyer's notices sent to the opposite parties.

Ext.P2 - The certificate issued from the independent workshop.

Ext.P3 - Copy of the extended warranty registration form issued by the opposite party.

Ext.P4 - Copy of the maintenance service record of the vehicle.

Ext.P5 - Job Slip cum Demanded Repair Explanation Sheet of the opposite party.

Ext.P6 - job card retail invoice of the opposite party dated 2.7.2010.

On the side of the Opposite Parties :

Ext.R1 - Copy of purchase invoice of the vehicle.

Ext.R2 - The sale certificate of the vehicle from the opposite party.

Ext.R3 - Dealership agreement for one year of the opposite party.

Ext.R4 - Copy of the PDI job card of the opposite party dated 9.1.2009.

Ext.R5 - Copy of the Warranty policy of the vehicle.

Ext.R6 - Copy of the job card No.1548 of the opposite party.

Ext.R7 - Copy of the second free service report of the opposite party dated 24.5.2009.

Ext.R8 - Copy of the third free service report of the opposite party dated 1.8.2009.

Ext.R9 - Copy of the job card dated 12.12.2009 of the opposite party.

Ext.R10 - Copy of the job card dated 19.2.2010 of the opposite party.

Ext.R11 - Copy of the job card dated 2.7.2010 of the opposite party.

Ext.R12 - Copy of the insurance of the vehicle.