IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 26th day of May, 2011. Present : Sri. Jacob Stephen (President). Sri. N. Premkumar (Member) C.C. No. 05/2007 (Filed on 08.01.2007) Between: Alex George, Mangalapurathu House, Kadapra P.O., Kumbanad, Thiruvalla. (By Adv. Cheriyan Geevarghese) .... Complainant. And: 1. The Regional Manager (South – 1), Maruti Udyog Ltd., 7th Floor, Capital Towers, 180, Kadampakkom High Road, Nungambakkom, Chennai. - AVG Motors Ltd., represented by
its Managing Director, Baker Junction, Kottayam – 686001. Addl.3. AVG Motors, Thiruvalla represented by its Manager, Muthoor P.O., Thiruvalla. (By Adv. G.M. Idiculla) .... Opposite parties. ORDER Sri. Jacob Stephen (President): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The complainant’s case is that he had purchased a Maruti Esteem Diesel car on 25.01.2005 manufactured by Maruti Udyog Ltd. from the second opposite party on the basis of the advertisement and the offers made by the opposite parties and on the basis of the canvassing of the representative of the second opposite party. Unfortunately, right from the beginning of the purchase of the vehicle, the said vehicle showed serious and substantial complaints. Even before and after the first service, the complaints were noticed and the vehicle was sent to the second opposite party for rectification of the same on several occasions. In spite of the rectification and maintenance by the second opposite party on several occasions, the complaints are still continuing. The main defects noticed are as follows: 1. Oil leakage. 2. Complaints to the coolant including the constant low level of the coolant etc. 3. Fuel efficiency of the vehicle was low. 4. Normal pulling complaint and that will be aggravated when the A.C. is switched on. 5. The engine also is not smooth. 3. In spite of the repeated requests and after the paid services also, the said complaints were not rectified. The complaints noticed from the beginning are still continuing. The complainant’s vehicle could not used so far due to the major defects. So the complainant was forced to use taxi vehicles for his use by paying ` 2,500 per day. At the time of purchase of the vehicle, the representative of the second opposite party told that new vehicle will be provided to the complainant in case of any serious complaints to the vehicle purchased. So the complainant issued a legal notice on 11.01.2006 for the replacement of a new car or for the rectification of the defects along with other damages, which was replied by the second opposite party by raising untenable contentions. After the said notice, the second opposite party took the vehicle to their workshop and replaced the diesel pump. Even after the replacement of the diesel pump also, the same defects were repeated which was properly intimated to the second opposite party. But they have not acted positively. In the meanwhile, a technician by name Mr. Pavan from Maruti Udyog Ltd. inspected the vehicle and informed the complainant that the vehicle is beyond repairs and the defects cannot be rectified as the defects are manufacturing defects. Since the defects of the vehicle are still continuing, the replacement of a new vehicle is highly necessary. Because of the aforesaid defects of the vehicle, the complainant was put to financial loss and mental agony and the opposite parties are liable to the complainant for the same. But the opposite parties failed to redress the complainant’s grievances, which is a clear deficiency of service from the part of the opposite parties. Hence, this complaint for an order directing the opposite parties to replace the vehicle with compensation of ` 4 lakhs or in the alternative allow the complainant to realise ` 5.8 lakhs with 12% interest per annum from the date of purchase of the vehicle along with compensation of ` 4 lakhs and cost of the proceedings. 4. The first opposite party entered appearance and filed version with the following main contentions: According to the first opposite party, this complaint is not maintainable as the complainant is using the vehicle in question for commercial purpose and the complainant has filed a frivolous and vexatious complaint on false allegations without any material on record. The complainant had no case for deficiency in service or unfair trade practice against the first opposite party. The first opposite party never refused to provide warranty benefits to the complainant as the liability of the first opposite party is limited within the warranty benefits. The complainant has not suffered any loss or injury due to the negligence of the first opposite party. The first opposite party does not sell any of its products directly to any individual customers, though the first opposite party is the manufacturer of the Maruti vehicles. It is false to say that the complainant had bought the vehicle in question under the influence of the alleged advertisement. 5. Since the vehicle had completed 64000 Kms. as per the vehicle records, the vehicle in question has fully served the purpose of the complainant. The vehicles manufactured by the first opposite party will be sent to the dealers only after the stringent quality checks and after being certified FCOK (Final Check OK). The dealers also conduct pre-delivery inspection for ensuring a defect free roadworthy vehicle. The complainant had already plied the vehicle for more than 64000 Kms. after he had taken the delivery of the vehicle from the dealer with full satisfaction after the test drive. The complainant’s vehicle is having history of accidental repairs also. The only obligation of the first opposite party is to render warranty services as per the terms and conditions set out in the Owner’s Manual and Service Booklet which it has fulfilled its obligations unequivocally. The complainant is trying to distort facts and making false averments on the basis of conjecture and surmises. The vehicle in question had covered 63232 Kms. till 30.07.2008 within 3 years from the date of purchase. If the vehicle had any manufacturing defect as alleged by the complainant, the same could not have covered such huge mileage. This itself refutes all the allegations of the complainant and rather raise serious doubts over his bonafides. For obtaining warranty service, the complainant is required to bring the car at the workshop for repair and routine maintenance. Accordingly, the complainant had visited the service station for the third free service on 31.05.2005; the mileage of the vehicle was recorded as 7649 Kms., within 4 months of purchase of the vehicle. The complainant had been using the vehicle extensively and negligently. The alleged problems are not a manufacturing defects. Fuel consumption depends on several factors such as fuel quality, road conditions, driving conditions, proper maintenance, driving habits, traffic conditions, which are beyond the control of the manufacturer, and hence the allegation regarding the low mileage is false. The vehicle of the complainant was thoroughly checked, but found no abnormalities. All services were carried out to the entire satisfaction of the complainant. Whenever the complainant has come up with complaints, the same were inspected, tested and attended to the entire satisfaction as per warranty terms and conditions. While the vehicle was taken for service/repairs, the complainant was given substitute vehicle for his convenience. The complainant never suffered any loss or damage due to the acts of the first opposite party. The injection pump of the complainant’s car was replaced on 23.06.2006 at 24226 Kms. free of cost under warranty to the entire satisfaction of the complainant. 6. As per the term of warranty, the warranty shall be 24 months or 40000 Kms. whichever occurs first from the date of purchase. The complainant is making false allegations after the expiry of the warranty only for obtaining undue gain. The complainant’s vehicle is not suffering from any kind of manufacturing defects and the first opposite party has not committed any deficiency of service to the complainant. All the allegations of the complainant are false and without any justification and the complainant is not entitled to get any of the reliefs prayed for in the complaint. With the above contentions, the first opposite party prays for the dismissal of the complaint with their cost. 7. The second and additional third opposite party entered appearance and filed a common version with the following main contentions: They have denied all the allegations of the complainant. They are being the dealers of Maruti Udyog Ltd. have not issued any warranty or guarantee against manufacturing defects and they have served the customer well during the services of the vehicle and also provided spare vehicle to the complainant for his convenience. They have not advertised regarding the durability of the car and the complainant purchased the car considering special offer made on Maruti Esteem cars. They have not obtained the order by coercion. During the first service, there was no substantial complaint as alleged. There was only a minor oil leakage, which was rectified by replacing an oil seal. The alleged complaints occurred for a period of 2 years spanning a kilometer reading over 20000 Kms. In an effort to optimize engine performance Vs. mileage of vehicle to best match to the customer expectation, fuel pump was recalibrated or even replaced. The complainant’s vehicle was test driven by Maruti Engineer on 16.01.2007 and certified that the performance is satisfactory and as a goodwill gesture the warranty of the vehicle was further extended by 2 years i.e. upto 24.01.2009 or 80000 Kms. whichever is earlier for any manufacturing defects. The complainant’s submission of hiring a taxi at `2500 per day is not believable, as the complainant himself had admitted that the second opposite party had provided a spare vehicle. All the defects complained by the complainant were properly rectified by the second opposite party. The purpose for which the complainant purchased the vehicle is not defeated as the complainant is using the car continuously and it was covered about one lakh kilometers within this period and the opposite parties are ready and willing to rectify any defects till the expiry of the extended warranty and the opposite parties are not liable to pay any damage or compensation as claimed by the complainant as these opposite party have not committed any deficiency in service. With the above contentions, the second and additional third opposite parties prayed for the dismissal of the complaint. 8. On the basis of the pleadings of the parties, the following points were raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Costs? 9. The evidence of this case consists of the oral depositions of PWs.1 to 3 and DW1 and Exts.A1 to A14 and Exts.B1 to B3 and Ext.C1 series. After closure of evidence, both sides filed their argument notes and they were heard. 10. Point No.1: As per Ext.A7, copy of registration certificate of the vehicle in question, the car was purchased by the complainant and registered it as a private car. Further, opposite parties have no case that the complainant is using the car as a taxi or the complainant is using this car for any other purpose other than his personal use. So the opposite parties’ contention that the car is purchased for commercial purpose and hence this complaint is not maintainable before this Forum is not sustainable. Therefore, we find that this complaint is maintainable before this Forum. 11. Point Nos. 2 and 3: The complainant’s allegation is that the Maruti Esteem car purchased by the complainant is having serious manufacturing defects since from the purchase onwards. The said defects were brought to the notice of the opposite parties, but they have not properly rectified the defects so far as they have not replaced the car as per the terms and conditions of the warranty in spite of the complainant’s request for replacement of the car. On several occasions, the said car was brought to the workshop of the second opposite party for repairing and rectifying the defects and complaints noticed by the complainant. But they have not attended the complaints properly. However, the injection pump was replaced once. Even after all this, the complainant was not able to use the car as expected by him at the time of purchase. So he was compelled to hire taxi car for his needs on several occasions. Thus, the complainant was put to financial loss, mental agony and other distress. Everything happened due to the deficiency of service of the opposite parties and the opposite parties are liable to the complainant for the same. 12. In order to prove the complainant’s case, the complainant filed a proof affidavit along with certain documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A14. Ext.A1 is the letter-dated 16.01.2007 issued by additional third opposite party in the name of M/s. Diesel Kerala, Palarivattom informing that the complainant’s vehicle is sending to them for fuel injection pump replacement. Ext.A2 is another letter-dated 31.05.2006 issued by the additional third opposite party in the name of the complainant informing him about the paid service and the injection pump over rolling during May 2005. Ext. A3 is the office copy of the Advocate Notice dated 11.01.2006 issued by the complainant in the name of opposite parties 1 and 2. Exts. A4 and A4(a) are the postal receipts of Ext.A3 Advocate Notice. Exts. A5 and A5(a) are the postal acknowledgment cards of Ext.A3. Ext.A6 is the reply notice dated 15.03.2006 of Ext.A3. Ext.A7 is the photocopy of the Certificate of Registration dated 29.01.2005 of the vehicle in question. Ext.A8 is the Owner’s Manual and Service Booklet. Ext.A9 is the letter-dated 16.01.2007 issued by the first opposite party’s Territory Service Manager to the complainant informing that the vehicle in question has been test driven by him and found the performance of the vehicle satisfactory and informing the complainant about the extension of the warranty for further 2 years. Ext.A10 is the Job Order Card dated 08.05.2006 issued by additional third opposite party to the complainant. Ext.A11 is the Retail Invoice dated 29.05.2006 issued by additional third opposite party in the name of the complainant. Ext.A12 is the Job Order Card dated 18.10.2005 issued by additional third opposite party to the complainant. Ext.A13 is the job card dated 18.11.2005 issued by additional third opposite party. Ext.A14 cash memo dated 11.03.2005 issued by the second opposite party in the name of the complainant. 13. Apart from the complainant, Expert Commissioner and the Advocate Commissioner appointed by this Forum were examined as PWs.2 and 3. The mahazar and report submitted by the Commissioners were marked as Exts.C1 and C1(a). 14. On the other hand, the opposite parties’ contention is that the vehicle in question was delivered to the complainant in a perfect roadworthy condition and free from any defects after conducting all pre-delivery tests and inspections. The warranty offered is for 24 months or 40000 Kms. from the date of purchase whichever occurs earlier subject to the terms and conditions described in the Owner’s Manual. The complainant was also provided 3 coupons for free services to be availed on completion of 1000 Kms., 5000 Kms. and 10000 Kms. besides 4th and 5th maintenance services at 20000 and 30000 Kms. The complainant cannot claim anything beyond the purview of the warranty. The vehicle was promptly attended as per terms and conditions of warranty and the problems pointed out by the complainant at the time of services were of routine in nature, which cannot be construed as a manufacturing defect. The complainant brought the vehicle to the workshop on 23.06.2006 at 24226 Kms. and at that time, the fuel injection pump was replaced free of cost. The fuel consumption depends upon various factors such as quality and quantity of fuel, traffic conditions, traffic congestion, road conditions, driving conditions, proper maintenance, driving habits, application of brake, shifting of gears, load factors etc. and hence the allegation of less mileage is not sustainable. 15. According to the opposite parties, there is no manufacturing defect in the vehicle. The complainant failed to place any material on record to substantiate his claim against opposite parties. The Expert Commission Report submitted by the Expert Commissioner appointed by this Forum is not reliable and sustainable as the Commissioner has not observed or followed any scientific methods for testing the condition of the vehicle in question. The alleged defects noted by the Commissioner can be occurred due to improper maintenance of the vehicle and due to wear and tear. The opposite parties never violated warranty conditions or never denied warranty benefits to the complainant. The complainant’s demand for compensation and replacement of the vehicle has no bonafides and the complainant is not entitled to get any of the reliefs claimed for in the complaint. 16. In order to prove the contentions of the opposite parties, the authorised representative of the first opposite party filed a proof affidavit and certain documents. On the basis of the proof affidavit, he was examined as DW1 and the documents produced were marked as Exts.B1 to B3. Ext.B1 is the photocopy of the pre-delivery inspection sheet/warranty registration card signed by the complainant. Ext.B2 is the photocopy of the Job Order Card dated 31.05.2005 in respect of the third free service. Ext.B3 is the photocopy of the Job Order Card dated 23.06.2006. 17. On the basis of the contentions, arguments and the arguments notes filed by the parties, we have perused the entire materials on record. The vehicle in question was purchased by the complainant on 25.01.2005. The complainant’s allegation is that the said purchase was made on the basis of the special features seen in the advertisement published by the opposite parties and on the basis of the false information given by the authorised representative of the second opposite party with regard to the standard and quality of Maruti Esteem Diesel Car. But in this case, the complainant has not adduced any evidence either by producing the advertisement or by adducing any independent oral evidence for substantiating the said allegations. Moreover, Ext.B1 shows that the complainant took the delivery of the vehicle after putting his signature in Ext.B1 as a mark of his satisfaction. Therefore, we find that the said allegation of the complainant is not sustainable. As per Ext.A8 Owner’s Manual and Service Booklet, the first free service was done on 05.02.2005 at 1090 Kms., the second free service was done on 07.03.2005 at 2554 Kms. and the third free service was done on 31.05.2005 at 7649 Kms. But the complainant has not produced any job order cards pertaining to the said services for showing that the vehicle in question had manufacturing defects right from the purchase of the vehicle and during the free services. The complainant had produced 2 job order cards, which are marked as Exts. A10 and A12. Ext. A12 job order card is dated 18.10.05 and the said job card was prepared at 13134 Kms. The other job card, Ext. A10 is prepared on 8.5.06 at 22500 Kms. In the said job cards, the complainant had raised the complaint of less mileage, less pickup etc. But the said complaints are raised after running the vehicle for more than 10000 Kms. If there is any manufacturing defect as alleged by the complainant how the complainant’s vehicle had completed more than 10000 Kms. The complainant had approached this Forum after two years from the purchase of the car, though he had sent legal notice to the opposite parties after one year from the purchase of the car. The complainant had been using the car at the time of issuing the legal notice during 2006 January and the said usage is continued till the filing of the complaint during 2007 January and the said car is in the use of the complainant still now. This means that the complainant’s car is not having any manufacturing defect. Why the complainant waited for approaching this Forum till January 2007?. What prevented the complainant from approaching this Forum immediately after noticing the manufacturing defect with cogent evidence showing the alleged manufacturing defects of the car? Though the complaint was filed in the year 2007 January, the complainant had taken steps for bringing expert evidence with regard to the alleged manufacturing defects only during December 2009. The expert evidence in respect of the complaints of the vehicle is prepared in the year 2010 June i.e., after 5 years from the date of purchase of the vehicle in question. One retired Deputy Transport Commissioner inspected the vehicle and submitted his report, which is marked as Ext.C1, and he was examined as PW2. In Ext.C1, he had reported certain complaints as manufacturing defects, which is in tune with the complainant’s allegation. PW2’s inspection of the vehicle was after 5 years from the purchase of the vehicle and after running more than 1 lakh Kms. So we are not inclined to believe the report and the opinion of PW2, the expert commissioner in respect of the manufacturing defects. At the time of the commissioner’s inspection of the vehicle, the vehicle had run more than 1 lakh Kms. and the vehicle is 5 years old. So the inspection report submitted by the commissioner PW2 could not be relied. The manufacturing defects of the vehicle can be noticed within months and before running a maximum of 5000 Kms. That is why, the companies are providing free services up to 5000 Kms. In this case, during the free services, said complaints are not brought to the notice of the technicians in the service centres. The defects noted by the commissioner can be caused due to the wear and tear of the vehicle. The manufacturing defects can be realised or noticed at the vehicles brand new stage itself. Here in this case, the complainant had failed to adduce any evidence to show that his vehicle had manufacturing defects right from the purchase onwards. What all materials brought in evidence by the complainant are not sufficient for a conclusion in favour of the complainant. In the absence of any cogent evidence in favour of the complainant, we are not inclined to allow this complaint. Therefore, we find no deficiency of service or unfair trade practice from the part of the opposite parties. Hence this complaint is liable to be dismissed. 18. In the result, this complaint is dismissed. No cost. Declared in the Open Forum on this the 26th day of May, 2011. (Sd/-) Jacob Stephen, (President) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Alex George PW2 : P.S. Jose PW3 : C.V. Jyothi Raj Exhibits marked on the side of the complainant: A1 : Letter-dated 16.01.2007 issued by additional third opposite party in the name of M/s. Diesel Kerala, Palarivattom. A2 : Letter-dated 31.05.2006 issued by the additional third opposite party in the name of the complainant. A3 : Office copy of the Advocate Notice dated 11.01.2006 issued by the complainant in the name of opposite parties 1 and 2. A4 and A4(a) : Postal receipts of Ext.A3 Advocate Notice. A5 and A5(a) : Postal acknowledgment cards of Ext.A3. A6 : Reply notice dated 15.03.2006 of Ext.A3. A7 : Photocopy of the Certificate of Registration dated 29.01.2005 of the vehicle. A8 : Owner’s Manual and Service Booklet. A9 : Letter-dated 16.01.2007 issued by the first opposite party’s Territory Service Manager to the complainant. A10 : Job Order Card dated 08.05.2006 issued by additional third opposite party to the complainant. A11 : Retail Invoice dated 29.05.2006 issued by additional third opposite party in the name of the complainant. A12 : Job Order Card dated 18.10.2005 issued by additional third opposite party to the complainant. A13 : Job card dated 18.11.2005 issued by additional third opposite party to the complainant. A14 : Cash memo dated 11.03.2005 issued by the second opposite party in the name of the complainant. Witness examined on the side of the opposite parties: DW1 : James Peter Exhibits marked on the side of the opposite parties: B1 : Photocopy of the pre-delivery inspection sheet/warranty registration card signed by the complainant. B2 : Photocopy of the Job Order Card dated 31.05.2005. B3 : Photocopy of the Job Order Card dated 23.06.2006. Court Exhibits: C1 & C1(a) : Mahazar & Report. (By Order) Senior Superintendent. Copy to:- (1) Alex George, Mangalapurathu House, Kadapra P.O., Kumbanad, Thiruvalla. (2) The Regional Manager (South – 1), Maruti Udyog Ltd., 7th Floor, Capital Towers, 180, Kadampakkom High Road, Nungambakkom, Chennai. (3) Managing Director, AVG Motors Ltd., Baker Junction, Kottayam – 686001. (4) Manager, AVG Motors, Muthoor. P.O., Thiruvalla. (5) The Stock File. | 
