PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of June 2012.
Filed on :02/12/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No.641/2010
Between
Prasanth Nair, : Complainant
11/335-A, Gaurinanthanam, (By Jagan Abraham M. George,
East Kadungalloor, M/s. Karukapadath Associates,
Kadungalloor Panchayath, Empire Building, Near High Court
North Paravur-683 102. Opp. Central Police Station,
Ernakulam-682 018)
And
1. The Manager, : Opposite parties
M/s. RF Motors (P) Ltd., (1st O.P.by Adv. Anil S. Raj,
Skyline Gateway Apartments, Panthiyil, Warriam road,
Pathadipalam, Edapally, Kochi-682 016)
Kochi-682 033.
2. Mr. Biju Nair, (O.Ps. 2&3 by Adv. V. Krishna
Area Manager, Menon, Menon & Menon,
Tata Motors Ltd, HRS Complex, Ist Floor, SRM road,
2nd Floor, Tutu Towers, Kochi-682 018)
NH Bye Pass, Palarivattom,
Cochin-25.
3. Tata Motors Ltd.,
4th Floor One Forbes,
1 Dr. VB Gandhi Marg,
Mumbai-400 001.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased an Indica Vista car from the 1st opposite party which was manufactured by the 3rd opposite party at a price of Rs. 4,35,701/-. The 1st opposite party collected Rs. 5,000/- towards vehicle handling charges and Rs. 3,000/- towards registration of the vehicle though the temporary registration fee is only Rs. 50/-. The complainant had to pay Rs. 1,500/- to get the vehicle registered additionally. The 1st opposite party agreed to deliver the car on 29-09-2010. On reaching the office of the 1st opposite party it was found that the vehicle was not starting. As directed by the 1st opposite party the complainant took delivery of the vehicle on 30-09-2010. After hardly running for 2-3 kms there was an unnatural rattling noise coming from the vehicle. On the same day the complainant approached the 1st opposite party with the vehicle. On examination it was found that the suspension cross and Arm was bent and broken due to rusting and corrosion. The 1st opposite party argued that the vehicle had been damaged before the delivery back of the same. The complainant had to pay Rs. 9,404/- for repairing the damages of the car. The complainant also had to face a lot of unpleasant situation at the hands of the employees of the 1st opposite party. The 1st opposite party sold an old car which had earlier been used as a demonstration car which had met with accidents. The car is having several defects and he is entitled to get replacement of the car together with compensation of Rs. 2 lakhs. This complaint hence.
2. The version of the 1st opposite party.
The 1st opposite party admits the sale of the car to the complainant. The car is free from any manufacturing defect. A sum of Rs. 8,700/- was paid towards vehicle transpiration and delivery charges. The complainant took delivery of the car on 30-09-2010. While the vehicle was delivered the odometer reading was 08 kms. The vehicle was brought back after 5 hours and complained of severe sound from the front suspension. Since the damage was caused by the complainant himself it was not possible for the 1st opposite party to replace the same free of cost. Claim form for insurance was filled out on his instruction. The claim form described the incident as narrated by the complainant. Later the complainant decided to pay the repair charges and did so. The complainant is not entitled to get any of the reliefs as claimed in the complaint.
3. The 2nd and 3rd opposite parties filed a separate written version raising similar contentions that of the 1st opposite party.
4. The complainant was examined as PW1 and Exts. A1 to A11 were marked on his side. The witness the 1st opposite party was examined as DW1, Exts. B1 was marked on their side. Neither oral nor documentary evidence was adduced by the 2nd and 3rd opposite parties. Heard the learned counsel for the parties.
5. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get replacement of the
car with a new one?
ii. Whether the opposite parties are liable to pay compensation
to the complainant?
6. Points Nos. i&ii. Admittedly the complainant purchased the car in question from the 1st opposite party on 29-09-2010 which was manufactured by the 3rd opposite party. According to the complainant the vehicle suffers from various defects and he is entitled to get replacement of the car with a new one. The opposite parties maintain that apart from the averments of the complaint there is no evidence on record to prove that the defects still persist due to manufacturing defect. The learned counsel for the 2nd and 3rd opposite parties relied on the following decisions of the Higher Judiciary.
a. Maruti Udyog Ltd V. Casino Dias & Anr. IV (2009) CPJ 144
(NC)
b. Tata Engineering & Locomotive Co. Ltd., Ors. 1 (1997) CPJ
14 (NC)
c. The Managing Director, Balipatam Tile Works Ltd. 1 (1995)
CPJ 477.
d. Union Bank of India V. M/s. Seppo Rally OY & Ors . III
(1999) CPJ 10 (SC)
e. Ravneet Singh Bagga V. M/s. KLM Royal Dutch Airlines &
Anr. III (1999) CPJ 28 (SC)
7. Uncontrovertedly, the above decisions have to be accepted. It is pertinent to note that complainant does not have a case that there is any recurring defects in the vehicle at present. In the absence of any evidence to the contrary we are to hold that the complainant is not entitled to get replacement of the vehicle.
8. The vehicle was delivered to the complainant on30-09-2010. According to the complainant he found a whirring from the vehicle and on the same day he returned the vehicle to the 1st opposite party and it was found that the suspension cross arm was rusted and damaged. It is stated that he had to incur a sum of Rs. 9,404 as per Ext. A7 tax invoice to repair the vehicle though the defect was caused at the hands of the 1st opposite party. The opposite parties contend that the vehicle was brought back after 5 hours after he took delivery of the car and it was evident that the vehicle had struck somewhere on the road/bump and suffered severe damage.
9. Ext. A5 (3 photographs) are the photographs of the brand new vehicle as well as the damaged parts. The 2nd and 3rd photographs go to show that the damaged area had got rusted and corroded evidently. Had the damages occurred earlier damaged were would not have rusted as seen from Ext. A5 to say the least not within 3 kms of running. The photograph were admitted in evidence without demur. Admittedly by the opposite parties, the complainant was in possession of the vehicle only for 5 hours before he lodged the complaint by the primary complaint. By no stretch of imagination it be sustained that rusting of a brand new vehicle could be within 5 hours then if at all that would have occurred earlier. So it can justifiably be concluded that the rusting of the parts was caused while the vehicle was in possession of the 1st opposite party before the delivery of the car on 30-09-2010. The 1st opposite party for reasons of their own seems to have suppressed the above fact and delivered the car to the complainant who accepted the same bonafide. Lured by the assurances of the 1st opposite party the complainant took delivery of the car and later had to spend money to repair the defect. The above conduct of the 1st opposite party not only amounts to deficiency in service but also unfair trade practice which calls for compensation and costs squarely. The 1st opposite party is to refund the amount which the complainant has had to incur towards repair charges as per Ext. A7.
7. Point No. ii. The mental agony of a buyer especially at the outset of purchase having been face with a dilemma of a non-functioning unit is not easily abatable such a situation calls for compensation. Though such an amount is not ratable factually we fix it at Rs. 25,000/-. Parties other that the complainant and the opposite parties have had to be put to necessary expense of time and labour. We fix the costs at Rs. 1,000/-.
8. In the result, we allow the complaint in part and direct as follows:
i. The 1st opposite party shall refund the amount as per Ext. A7
to the complainant with interest @ 12%p.a. from the date of
receipt till realization.
ii. The 1st opposite party shall pay a compensation of Rs.
25,000/- to the complainant for the reasons stated above.
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.
Pronounced in the open Forum on this the 30th day of June 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 : Tax invoice dt. 20-09-2010
A2 : Copy of sale certificate
dt. 28-09-2010
A3 : Copy of temporary certificate of
registration.
A4 : Copy of certificate cum policy
Schedule
A5 : Photographs
A6 : Copy of Gmail dt. 02-06-2011
A7 : Tax Invoice dt. 04-10-2010
A8 : Job slip dt. 23-10-2010
A9 : Copy of breakdown service report
dt. 22-11-2010
A10 : Tax invoice dt. 24/11/2010
A11 : Tax invoice dt. 23-10-2010
Opposite party’s Exhibits :
Ext. B1 : Job card dt. 01-10-2010
Depositions:
PW1 : Prasanth G
DW1 : Lovegin Antony
