DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB          : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday the 31^st day of January 2024

C.C.143/2014

Complainant

K. Muhammed Faisal,

Kuniyil House,

Palayadnade (PO),

Kozhikode – 673521.

Opposite Parties

1. The Manager, Apco Vehicle (India) Pvt Ltd,

27/1282, Mini bypass road,

Puthiyara (PO),

Kozhikode – 673004.

(By Adv. Sri. Alikoya)

2.  The Manager, Hyundai Motor (India) Ltd,  5^th & 6^th floor,

Corporate one (Baani building),

Plot No. 5, Commercial Centre,

Jasola, New Delhi – 110076.

(By Adv. Sri. P. Rajeev)

                                                                                         ORDER

By.Sri. P.C. PAULACHEN, PRESIDENT

            This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The complainant is in possession and use of a Santro GL Plus (Model year 2011) car owned by Sri Koppali Moideen, who is his father-in-law. The first opposite party is the authorised dealer and the second opposite party is the manufacturer of the car. The car was purchased from the first opposite party and is registered in the name of Sri. Koppali Moideen, who is employed abroad. The vehicle is serviced by the first opposite party, which is the authorised dealer and service centre in Kozhikode.

3. On 25/10/2011 the car met with a road traffic accident and it was entrusted with the first opposite party for repairs, who had agreed to deliver back the vehicle after repairs within 2 weeks. But the car was delivered only on 4/02/2012. The bill amount was Rs. 1,18,334/- out of which, the complainant had paid a sum of Rs. 33,000/- from his pocket and balance amount was claimed from the insurance company. The inordinate delay in delivering back the vehicle after repairs has resulted in much inconvenience and hardship to the complainant, despite monetary loss.
4. In the month of April, when it started raining, the complainant noticed that water was leaking into the driver side and passenger compartment of the car. The mat and seats became wet and a foul smell started emanating from the car. The vehicle was entrusted again to the first opposite party, who told that the problem was with the wiper hose which was subsequently fixed and vehicle was delivered back to the complainant. But again, it was found that the complaint of water leak was not corrected and the vehicle was again entrusted with the first opposite party for second free service. At that time also, the problem of water leak was brought to the notice of the first opposite party, who said that a gap was noticed in the under body of the car and it would be fixed by M-seal and the vehicle was delivered back to the complainant.  A sum of Rs. 873/- was charged by the first opposite party. But the water leak problem persisted. Again the vehicle was entrusted for repairs and first opposite party stated that there was leak from the wind shield and it should be corrected. A sum of Rs. 6,180/- was paid to the first opposite party by the complainant. But the leak was not corrected.
5. Thereafter the vehicle was again entrusted with the first opposite party on 4/07/2013 with the complaint of water leak. The first opposite party kept the vehicle for one week and assured that the painting of the under body would solve the problem, to which, the complainant agreed. The work was done and the complainant paid a sum of Rs. 1,700/- to the first opposite party and took delivery of the car.
6. Even after that, the water leak remains unrectified. The first opposite party told that the water leak could not be corrected because the car suffers from manufacturing defect. The act of the second opposite party in manufacturing and releasing a faulty car for sale in the market and the sale of the same by the first opposite party amounts to unfair trade and business practice and the delay on the part of the first opposite party in delivering back the car after accidental repairs and not rectifying the defect of water leak inspite of repeated repairs amount to deficiency of service and both of them are jointly and severally liable to pay adequate compensation to the complainant. Hence the complaint for refund of a sum of Rs. 1,27,087/- which the complainant had paid for the repairs and for a direction to the opposite parties to refund the purchase price of Rs. 3,65,000/- after taking back the car and to pay compensation of Rs. 1,00,000/- for the mental agony and monetary loss suffered by the complainant, along with the cost of the litigation.
7. The opposite parties have resisted the complaint by filing written version separately.
8. According to the first opposite party, the complainant is not a consumer and he is not having the locus standi to file the complaint. The complaint is barred by limitation. The purchase of the car by Sri Koppali Moideen is admitted. The car met with a major accident and was brought for accidental repair on 27/10/2021. The repairs were carried out to the full satisfaction of the customer without any delay. It was an accidental repair and it is only when the repair works were undergoing it would be understood as to what all parts have to be changed and for that orders are to be placed to the manufacturer for the supply of such parts.  The allegation that there was leakage of water in to the driver side and passenger compartment of the car is not true and correct. The further allegation that the complaint of water leak remains not rectified is false and hence denied. Equally, the allegation that the first opposite party had stated that the car has manufacturing defect is false and hence denied. The vehicle sold out by the first opposite party does not suffer from any kind of defect much less any manufacturing defect. The vehicle was brought to the first opposite party for two accidental repairs. The first accidental repair was on 27/10/2011, which was a major repair and later on 29/06/2012 also there was an accidental repair. On both occasions, the first opposite party repaired the vehicle properly to the full satisfaction of the customer. No water leak could be found even after thorough examination and that too for many times. The water leak, if any, has been occurring after the accident. The vehicle sold was defect free and the repair was proper and to the full satisfaction of the customer. None of the reliefs is allowable. With the above contentions, the first opposite party prays for dismissal of the complaint.
9. According to the second opposite party, the complaint is devoid of merits.  The complainant is neither the owner of the car nor has been authorised by the owner to file the complaint. The complaint is barred by limitation. The complainant failed to show any manufacturing defect to the vehicle. The relationship of the second opposite party with the first opposite party is on principal to principal basis. The liability of the manufacturer is limited to warranty obligations. The alleged water leak has been occurring after the accident. Water leakage was reported on 13/07/2013, pursuant to which, the vehicle was duly inspected and water leak tested, but no leakage was found. The complaint is frivolous and misconceived and none of the reliefs is allowable and the complaint is only to be dismissed.
10. The points that arise for determination in this complaint are;

1) Whether the complainant is a consumer or not?

2) Whether the complaint is barred by limitation?

3) Whether there was any unfair trade practice or deficiency of service on the  part of the opposite parties, as alleged?

4) Reliefs and costs.

11. The evidence consists of the oral evidence of PW1 and Exts A1 to A11 on the side of the complainant. RWs 1 and 2 were examined and Ext B1 was marked on the side of the opposite parties. The report of the Expert Commissioner was marked as Ext C1.
12. Heard both sides. The complainant has filed brief argument note.
13. Point No 1:     The opposite parties have taken a contention in their written version that the complainant herein does not have the locus standi to file the complaint since he is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. It was submitted that the complainant is neither the owner of the car nor has he been authorised by the owner to file the present complaint.
14. Admittedly, the complainant is not the owner of the car in question. The car is purchased and registered in the name of Sri Koppali Moideen, who is the father-in-law of the complainant. The definite case of PW1 is that his father-in-law is abroad and he is the person in possession and use of the vehicle with the consent of the owner. As per the definition of consumer in Section 2(1)(d) of the Act, consumer includes any user of goods other than the person who buys such goods for consideration when such use is made with the approval of such person. Here, the complainant has been using the vehicle with the approval of the owner. So he is a consumer as contemplated under Section 2(1)(d) of the Act.  So the complaint filed by him alleging deficiency of service and unfair trade practice is perfectly maintainable before this Commission. Point is answered in favour of the complainant.
15. POINT No. 2: Another contention of the opposite parties is that the complaint is liable to be dismissed on the sole ground of limitation. It was submitted that the complaint was filed beyond 2 years from the date of purchase of the car and the accidental repairs.
16. As per Section 24-A of the Consumer Protection Act 2019, a complaint is to be filed within 2 years from the date on which the cause of action has arisen. One of the allegations in the complaint is that there was inordinate delay the in delivering back the vehicle to the complainant after the accidental repairs, which amounts to deficiency of service entitling the complainant to claim compensation and seek refund of the repair charges paid to the first opposite party. As per the pleadings, the vehicle was brought to the workshop of the first opposite party on 27/10/2011 for repairs and it was delivered back to the complainant on 04/02/2012, more than 3 months after the entrustment. If the complainant was aggrieved by the delay, he should have approached this Commission before 05/02/2014. But he has instituted the present complaint only on 14/03/2014 which is beyond the prescribed time. So this part of the claim is time barred.  
17. But at the same time, it may be noted that the main allegation of the complainant in this case is that during rain, water is leaking in to the driver side and passenger compartment of the car and despite repeated repairs/service the opposite parties could not rectify the defect. It was on 4/07/2013 that the vehicle was entrusted with the first opposite party to rectify the leakage of water for the last time and the grievance projected in the complaint is that even after that the leak is persisting. Ext A8 is the repair order dated 4/07/2013 where water leak repeating is mentioned. So the cause of action in this regard has arisen on 04/07/2013 and the complaint filed on 14/03/2014 on the above allegation is within time. This part of the claim is not time barred. Point found accordingly.
18. Point No. 3: The complainant has approached this Commission with the present complaint alleging unfair trade practice and deficiency of service on the part of the opposite parties. The specific allegation is that the act of the second opposite party in manufacturing and releasing a faulty car for sale in the market and sale of the faulty car by the first opposite party amounts to unfair trade and business practice on their part and further the act of the first  opposite party in keeping the car for a period of more than 3 months at the time of accidental repair and not rectifying the defect of water leak in spite of repeated complaints and repairs amount to negligence and deficiency of service and thus both the opposite parties are jointly and severally liable for their acts.
19. In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the registration certificate, Ext A2, A3, A4, A6, A7, A9 to A11 are the copies of the bills, Ext A5 and A8 are the repair orders.
20. The case advanced by the opposite parties is that the vehicle sold by them is not having any defects much less any manufacturing defects and the repairing works done are without any short comings, imperfections or deficiencies and it was done in a utmost qualitative manner to the full satisfaction of the customer. The senior service manager of the first opposite party was examined as RW1 and he has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. The learned expert who has inspected the vehicle and filed report was examined as RW2. The report of the expert was marked as Ext C1. Ext B1 is the copy of the notice issued by RW1.
21. The learned counsel for the complainant argued that the vehicle in question suffers from manufacturing defect. It was submitted that the defect of water leak could not be corrected by the opposite parties despite repeated repairs. Further it was pointed out that there was undue delay in repairing the car at the time of accident repair. Per contra, the learned counsel for the opposite parties vehemently argued that the vehicle sold to Sri. Koppali Moideen was a defect free one and all the repairs were done properly and in a qualitative manner. It was pointed out that the vehicle had met with a major accident causing extensive damage to the vehicle and considering the nature of the work and repairs, the time taken for repairs is reasonable.  
22. At the very outset, it may be noted that as already found under point No. 2, the claim based on the delay in delivering back the car after repairs is barred by limitation. So the said claim need not be considered and the complainant is not entitled get any relief based on that allegation.
23. Now it has to be considered as to whether the car in question suffers from any inherent manufacturing defect since the complainant is seeking refund of the price of the vehicle on the ground of manufacturing defect. The complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. In this context, Ext C1 report assumes importance. Ext C1 was prepared by none other than the Head of the Department of Mechanical Engineering, Government Engineering College, Kozhikode. In Ext C1 it is reported that there is a problem of water leakage in to the interior of the car (collects in the floor space in the basin below the accelerator, pedal etc.) as water flows and drains over, typically as it happens during rainy season. The learned expert has tested by letting water fall and flow over the car by means of hose connected to the tap. However, the learned expert commissioner could not ascertain whether it is a manufacturing defect or not, because it could be a manufacturing defect or something which got formed in due course during normal usage or during an accident, which is difficult to ascertain. Thus it is established by Ext C1 that there is water leakage in to the interior of the car. But the learned expert could not say for certain whether it is a manufacturing defect or not. There is absolutely no reason to discard Ext C1. The first opposite party has objected Ext C1 stating that there was no proper notice and for the reason that the inspection was after 3 years of the complaint. The learned expert was examined as RW2. But the first opposite party could not substantiate the objections. The mere delay in inspecting the vehicle by itself is not sufficient to discard the finding of the Commissioner that there is water leakage in to the interior of the car. The inspection was in the presence of all the parties and there is no reason to disbelieve RW2 or discard Ext C1.  
24. Ext C1 does not say that the vehicle is having manufacturing defect, though there is the problem of water leakage into the interior. As reported by the learned expert Commissioner, it may be something which got formed in due course during normal usage or during the accident. It is an admitted fact that the vehicle met with a major accident in 2011. PW1 has admitted in the cross examination that he is not sure as to whether the problem of water leakage happened due to manufacturing defect or defect in the repairs. According to PW1, his conviction is that the leakage started after the accidental repairs. He is not sure as to whether any manufacturing defect is there in the vehicle. Another aspect to be noted in this case is that PW1 has admitted in the cross examination  that the vehicle has already run 60,000 Kms and it is still in use. The complainant has failed to discharge his onus satisfactorily that the vehicle suffered from any inherent manufacturing defect. The allegation that a faulty car was released for sale in the market is not proved or established. There is nothing to indicate that the opposite parties have indulged in any unfair trade and business practice. The claim for refund of the price after taking back the vehicle is not allowable.
25. But the fact remains that there is water leakage into the interior of the car and the first opposite party could not correct the defect inspite of several repairs /services as can be seen from the repair orders and bills produced and marked by the complainant. The opposite parties have stated in the version that they could not see any water leak in to the vehicle even after thorough check and that too multiple times. In Ext A8 issued by the first opposite party, water leak is mentioned. Nothing is produced by the opposite parties to indicate that they have conducted a thorough examination several times and in such examinations no leakage could be identified. Nothing is mentioned in Ext A8 about this. Moreover, RW1 has rather admitted in the cross examination that the water leakage alleged by the complainant is correct. RW1 has also admitted that during the pendency of the complaint, the vehicle was taken for correcting the water leak. So the contention of the opposite parties in the written version that they could not find any water leakage cannot be accepted. It is proved that there is water leakage in to the interior of the car and the opposite parties could not fix it in spite of repeated complaints and repairs. The failure to correct the defect of water leak in spite of repeated complaints and repairs/service, amounts to deficiency of service and the opposite parties are jointly and severally liable to pay reasonable compensation to the complainant for the deficiency of service and the consequent mental agony, hardship and inconvenience suffered by him. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 30,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings. The opposite parties are jointly and severally liable. Point found accordingly.
26. Point No. 4:- In the light of the finding on the above points, the complaint is disposed of as follows;

a)  CC.143/2014 is allowed in part.

b) The opposite parties are hereby directed to pay a sum of Rs. 30,000/- (Rupees thirty thousand only) as compensation to the complainant.  

c) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees   five thousand only) as cost of the proceedings to the complainant.   

 e) The payment as afore stated shall be made within 30 days of the   receipt of copy of this order, failing which, the amount of Rs. 30,000/- shall carry an interest of 6% per annum from the date of this order till actual payment.

Pronounced in open Commission on this, the 31^th day of January, 2024.

Date of Filing: 04/03/2014

              Sd/-                                                    Sd/-                                                Sd/-

       PRESIDENT                                    MEMBER                                        MEMBER

APPENDIX

Exhibits for the Complainant:

Ext A1 - Copy of the registration certificate.

Ext A2 - Copy of the bill.

Ext A3 - Copy of the bill.

 Ext A4 - Copy of the bill.

Ext A5-  Repair order.

Ext A6 - Copy of the bill.

Ext A7 - Copy of the bill.

Ext A8 -  Repair order.

Ext A9 - Copy of the bill.

Ext A10 - Copy of the bill.

 Ext A11- Copy of the bill.

Exhibits for the Opposite Parties

Ext B1 – Copy of the notice issued by RW1.

Commission Exhibits

Ext C1  - Report filed by the head, Mechanical Engineering, Govt. Engineering college, West hill, Kozhikode.

Witnesses for the Complainant

PW1 -     K. Muhammed Faisal (Complainant)

Witnesses for the opposite party

RW1 – Shajid Ahammed.

RW2 – Dr. Anirudhan. P.

          Sd/-                                                    Sd/-                                                Sd/-

       PRESIDENT                                    MEMBER                                        MEMBER

                                                                                          True copy,

                                                                                                          Sd/-

                                                                                                   Assistant Registrar