BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 29/10/2010

Date of Order : 29/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 574/2010

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :

The complainant purchased a Santro Xing DLS car from the 2^nd opposite party on 22-06-2010 for 3,92,000/-. After a few days, he noticed one inch difference between the front right side mudguard and the tyre than that of the left side. The matter was intimated to the 2^nd opposite party and they informed the complainant that the problem would be solved automatically within 2-3 days. Since no improvement was noticed, the vehicle was brought to their service station on 08-07-2010. They checked the vehicle and returned the same. Again, the vehicle was brought to the service centre on 13-07-2010 for the same reasons. Though the 2^nd opposite party carried out some repairing work, the problem persisted. Subsequently on 16-07-2010, the technician carried out repairing work, but they failed to rectify the defect. Finally on 07-10-2010, the service engineers of the 1^st opposite party attended to the vehicle, but the complaint still persists. The difference in the wheel base between left hand and right hand side is a manufacturing defect. The said deformity is visible by naked eyes. The consequence of the difference between the wheel base may affect the smooth running of the vehicle. The supply of vehicle having a visible deformity and manufacturing defect amounts to unfair trade practice and deficiency of service. The complainant had to visit the service centre of the 2^nd opposite party on five occasions before covering 900 Kms. to rectify the above defect, but in vain. The complainant is entitled for the replacement of the defective vehicle with a defect free vehicle. He is also entitled for Rs. 50,000/- towards compensation for the mental agony and hardships suffered by him due to the supply of a defective vehicle together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party :

The 1^st opposite party deals with all its dealers including the 2^nd opposite party on principal to principal basis and the 2^nd opposite party is responsible for error/omission/misrepresentation, if any at the time of retail sales/services/repairs of the car. As per the warranty policy of the 1^st opposite party, the purchaser does not under any circumstances contemplate replacement of the vehicle nor refund of the purchase price from the 1^st opposite party. After inspection of the car by the 2^nd opposite party, it was found that the difference was only 4 m.m. and would not affect the functioning of the vehicle in any way whatsoever. The service engineer and technical expert of the 1^st opposite party after thorough inspection, it was found that the above gap could be adjusted by refixing the fender and the doors of the vehicle. The complainant has not reported the car for the adjustment of door and fender despite request sent by the 2^nd opposite party. The 1^st opposite party requests to dismiss the complaint.

3. The 2^nd opposite party as well raised the very same contentions of the 1^st opposite party.

4. The complainant was examined as PW1 and Exts. A1 to A4 were marked on the side of the complainant. No oral evidence was adduced by the 1^st opposite party. Exts. B1 and B2 were marked on their side. The witness for the 2^nd opposite party was examined as DW1. Heard the counsel for the parties.

5. The points that emanated for consideration are :-

1. Whether the complainant is entitled to get replacement of the car under dispute with a new one?

2. Whether the opposite parties are liable to pay compensation of Rs. 50,000/- and costs of the proceedings to the complainant?

6. Point Nos. i. and ii. :- Admittedly on 22-06-2010, the complainant purchased a Santro Xing DLS car from the 2^nd opposite party which was manufactured by the 1^st opposite party. According to the complainant, there is one inch difference between the front right side mudguard and the tyre than that of the left side. The opposite parties maintain that difference is only 4 m.m. and which will not affect the performance of the vehicle. Nothing is on record to substantiate the respective contention of the parties. It is also to be noted that no expert evidence is before us to show whether the gap in between the mudguard and flap in left side and right side is due to manufacturing defects of the vehicle. In that view of the matter, the stand taken by the 1^st opposite party relying on the decision of the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (2006) 4 SCC 644) is sustainable in law. So, the complainant is not legally entitled to get the vehicle replaced with a new one. Hence, the complainant is entitled to get the replacement of the defective parts and to get the defects rectified.

7. Both the opposite parties categorically stated that the defect stated in the complaint can be rectified by refixing the fender and front door. Admittedly, they have not put it in black and white and intimated the same to the complainant, the failure on the part of the opposite parties to communicate that the defect can be rectified by refixing of the fender and the door can cure the defect has not been placed on record before the Forum which amounts to admission of deficiency in their service. The complainant is entitled to get compensation on account of the same. We fix it at Rs. 5,000/-. The opposite parties are also liable to pay an exemplary costs of Rs. 1,000/- to the complainant however, they are liable to rectify the defect at their own costs without inconvenience to the complainant.

7. In the result, we partly allow the complaint and direct as follows :

1. The 1^st and 2^nd opposite parties shall jointly and severally rectify the defect of the car by refixing the fender and the front doors to the satisfaction of the complainant, failing which the opposite parties are liable to pay compensation of Rs. 25,000/- to the complainant.

2. The opposite parties shall jointly and severally pay Rs. 5,000/- by way of compensation and Rs. 1,000/- by way of costs of proceedings, for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till realisation.

Pronounced in open Forum on this the 29^th day of February 2012.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Membe Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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