DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 27th day of June, 2023
Filed on:
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C. No. 391/2017
Between
COMPLAINANT
Justice (Retd.) P Krishna Moorthi Karthika, Krishnaswamy Road, Ernakulam -682035
(Rep. by Adv. Rahul Venugopal, 41/4262/D2B, Metro Plaza, 2nd Floor, Market Road (North), Cochin – 18)
VS
OPPOSITE PARTIES
- The General Motors India Pvt Ltd., Chandra Pura Industrial Estate, Dist. Panchmahals, HALOL 389351, Gujarat Represented by its Managing Director.
- The General Motors India Pvt Ltd., Plot-15, Echelon Industrial Area, Sector-32, Gurgaon-122001
- Geeyem Motors Pvt Ltd, 11/336, NH Bye Pass, Nettoor, Cochin -682040.
(Rep. by Adv. P.V. Saleem, Adv. Of High Court of Kerala)
FINAL O R D E R
DB.Binu, President
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant a retired Judge of the Kerala and Karnataka High Courts, purchased a Chevrolet Aveo car from Geeyem Motors Private Limited in April 2011. The vehicle came with a 3-year or 100,000-kilometer warranty. Even after the warranty period ended, the complainant continued to service the vehicle as advised by the opposite parties. However, on a journey in May 2017, the car broke down and experienced engine issues, leading to significant damage.
The complainant had the car repaired at Geeyem Motors Limited, at a cost of Rs 78,499. The repair involved replacing the piston valve and several engine parts. The complainant believed that the overheating and subsequent damages were caused by a manufacturing defect, as there were no indications of overheating during the drive and the safety features did not shut down the engine.
The complainant contacted the opposite parties through letters and emails, seeking reimbursement for the repair expenses due to the alleged manufacturing defect. The opposite party initially requested vehicle details for assistance but later claimed that since the vehicle was out of warranty, repairs would be chargeable.
The complainant argued that even if the warranty had expired, regular servicing within recommended intervals implied an expectation of defect-free operation until the next service. Accepting the opposite party's explanation would imply that a vehicle becomes non-roadworthy and prone to serious damage immediately after the warranty period ends, even with regular servicing.
The complainant claimed mental agony, stress, and strain due to the incidents and the behaviour of the opposite party's employees. The complainant sought the payment of Rs 78,499 with 12% interest from the date of payment as compensation for deficient service. Additionally, the complainant requested Rs 100,000 for damages, mental agony, and other stress and strains, as well as Rs 15,000 for legal expenses.
2) . Notice
In response to the notices sent by the commission, the first and second opposite parties did not appear or submit their versions. As a result, they were set ex-parte. However, the third opposite party filed their version, providing their perspective on the matter.
3) THE VERSION OF THE THIRD OPPOSITE PARTY
The third opposite party denies all the allegations made in the complaint and argues that it is not maintainable in law or in fact and should be dismissed. They state that the vehicle purchased by the complainant was not defective at the time of delivery and came with a warranty of three years or 100,000 kilometers. Even after the free services period ended, the complainant continued to have the vehicle serviced regularly. The breakdown of the vehicle on May 20, 2017, was repaired by the third opposite party's service center, and the engine parts were replaced at the complainant's expense. The third opposite party asserts that they are not liable for any manufacturing defects as per a decision by the Hon'ble Supreme Court. The third opposite party emphasizes that they did not detect any manufacturing defects in the complainant's vehicle. They further argue that even if there were manufacturing defects, they cannot be held liable based on a decision by the Hon'ble Supreme Court (citing the case reported in 2000(10) SCC 654). They argue that since the complainant's vehicle is out of the warranty period, any repairs or replacements should be charged to the complainant. Therefore, the third opposite party contends that the complainant is not entitled to any relief as requested in the complaint.
4) . Evidence
The complainant had filed 5 documents that were marked as Exhibits-A-1- to A-5.
Exhibit-A1: Copy of invoice dated 31/10/16
Exhibit-A2. Copy of letter dated 23/05/17 issued by the complainant to the opposite party.
Exhibit-A 3. Copy of repair order dated 02/06/17.
Exhibit-A 4. Copy of Invoice dated 17/06/17.
Exhibit-A 5. Copies of email trail printouts between the complainant and the opposite party.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant submitted a Copy of the invoice dated 31/10/16, which serves as evidence of the payment made to the opposite party. (Exhibit A-1).
The complainant has filed a case seeking compensation for the deficiency of service caused by the opposite parties. The complainant alleges a manufacturing defect in the vehicle that resulted in significant damage and is requesting compensation for the repair expenses, damages, and mental distress caused as a result of the incident. The complainant seeks financial reimbursement for the repair costs incurred, as well as compensation for the mental agony and other stress and strains experienced.
The complainant and their counsel did not appear before the commission from December 3, 2019. On March 23, 2021, the Commission sent a notice to the complainant's counsel, but they also did not appear. It was later informed to the Commission that the complainant had passed away, and a report regarding this was submitted. On March 25, 2023, it was communicated to the Commission that the complaint was being withdrawn, but no formal application for withdrawal was submitted. As of now, neither the legal heirs of the complainant have participated in the proceedings nor has an application for withdrawal been filed. Therefore, the only course of action for the Commission is to dispose of the complaint based on the available evidence.
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent...” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in complete disregard the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
After careful consideration, it has been determined that the issues do not favor the complainant. The contentions raised by the complainant are deemed to lack merit. Therefore, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this the 27th of June, 2023 .
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit-A1: Copy of invoice dated 31/10/16
Exhibit-A2. Copy of letter dated 23/05/17 issued by the complainant to the opposite party.
Exhibit-A 3. Copy of repair order dated 02/06/17.
Exhibit-A 4. Copy of Invoice dated 17/06/17.
Exhibit-A 5. Copies of email trail printouts between the complainant and the opposite party.
Opposite party’s evidence
Nil
Despatch date:
By hand: By post
kp/
CC No. 391/2017
Order Date: 27/06/2023
