KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos. 333/2016 and 444/2017

COMMON JUDGMENT DATED: 15.11.2024

(Against the Order in C.C. 858/2014 of DCDRC, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPEAL No. 333/2016

APPELLANT:

EVM Automobiles Pvt. Ltd., INTUC Junction, Nettoor, Maradu-682 040.

(By Adv. Jose Jacob)

Vs.

RESPONDENTS:

1. Thresiamma Varghese, Pureparambil House, Kureekadu, Chottanikkara, Ernakulam-682 035.

(By Adv. Bibin Kumar)

2. Nissan Motor India Pvt. Ltd., (Corporate Office), T. Nagar, Chennai-600 017.

                                      (By Adv. Bimal V.S.)    

APPEAL No. 444/2017

APPELLANT:

M/s Nissan Motor India Pvt. Ltd., ASV Ramana Towers, 52, Venkata Narayana Road, T. Nagar, Chennai-600 017.

                                      (By Adv. Bimal V.S.)

Vs.

RESPONDENTS:

1. Thresiamma Varghese, Pureparambil House, Kureekadu, Chottanikkara, Ernakulam-682 035.

(By Adv. Bibin Kumar)

2. M/s EVM Automobiles Pvt. Ltd., Building No. XVI/139 E, INTUC Junction, Nettoor, Maradu-682 040.

(By Adv. Jose Jacob)

COMMON JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant in Appeal No. 333/2016 is the 1^st opposite party and the appellant in Appeal No. 444/2017 is the 2^nd opposite party in C.C. No. 858/2014 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (for short “the District Commission”).

2.  On 23.08.2014, the complainant purchased a Nissan Micra car from the 1^st opposite party.  The said vehicle was manufactured by the 2^nd opposite party.  On the 53^rd day of its purchase, the air bag of the vehicle got activated without any warning or impact on it.  The vehicle was, on intimation, taken by the 1^st opposite party to their garage at Kochi.  The vehicle was not set right even after a period of one week.  Therefore, the complainant caused to issue an e-mail communication to the customer care on 24.10.2014 which was replied by the 2^nd opposite party by another e-mail dated 28.10.2014, raising false and frivolous contentions.  About eight lakh cars manufactured by the 2^nd opposite party were recalled by the 2^nd opposite party due to the manufacturing defect of the air bag, as seen from the news item in the Malayala Manorama daily dated 02.10.2014.  The 1^st opposite party was aware of the facts and sold the vehicle to the complainant suppressing the defects of the car.  Since the car was not repaired and given, the complainant had to spend money for travelling in taxi cars.  She had also suffered financial loss, mental agony and sufferings.  Therefore, the complainant has prayed for replacing the old vehicle with a new one and to award an amount of Rs. 2,00,000/- (Rupees Two Lakh only) as compensation for the deficiency in service. 

3.  Both the opposite parties filed version. The 1^st opposite party filed version admitting the purchase of the vehicle by the complainant on 23.08.2014.  It is contended by the 1^st opposite party that on 15.10.2014, the 1^st opposite party was informed that the air bag of the vehicle was activated without any incident.  The representative of the 1^st opposite party went and collected the vehicle from the house of the complainant on the same day.  It was informed that while the vehicle was crossing the railway line, it fell into a pothole causing heavy jolting whereby the airbag was deployed.  The complainant had driven the vehicle to her home from where she made call to the 1^st opposite party.  On examination of the vehicle, it was found that as a result of the impact, the left alloy wheel was damaged and the tyres were torn on the left side.  The 1^st opposite party repaired the vehicle and informed the complainant on 26.11.2014to take the vehicle back from the 1^st opposite party.  However, the complainant was not prepared to take delivery of the vehicle. The allegation that the deployment of the airbag was a manufacturing defect is not correct. The complainant stated that she would take delivery of the vehicle only on the undertaking by the 1^st opposite party in writing that the air bag would not be activated otherwise than in an accident.  When the 1^st opposite party expressed their limitation as the 1^st opposite party was only a dealer, the complainant refused to take delivery of the vehicle.  

4.  The 2^nd opposite party filed version contending that the vehicle did not have any manufacturing defect.  All those vehicles, which had some defects in connection with the air bag, had been withdrawn by the 2^nd opposite party. The complainant’s vehicle did not belong to that consignment or batch.  On enquiry, it was made known to the 2^nd opposite party that the vehicle had jumped over a speed breaker and fell forcibly in to a pothole, which caused the sensor to activate the air bag.  There was damage to the under-body parts of the car.  Since the damage was caused in an accident and there was no manufacturing defect, the opposite party was not bound to repair the vehicle on warranty.

5.  PW1 was examined and Exhibits A1 to A7 were marked for the complainant.  DW1 was examined for the opposite parties.  After evaluating the evidence, the District Commission found that there was deficiency in service on the part of the opposite parties and accordingly, the District Commission directed the 1^st opposite party to deliver the car after rectification of all the defects with two years fresh warranty.  The District Commission further directed the opposite parties to pay compensation of Rs. 1,00,000/- (Rupees One Lakh only) for the deliberate delay in delivering the vehicle after the repair, the mental agony caused to the complainant and the proved deficiency in service.  The District Commission also ordered costs of Rs. 10,000/- (Rupees Ten Thousand only).  Aggrieved by the said order, these appeals have been filed. 

6.  Heard both sides.  Perused the records. 

7.  It is not disputed that the car of the complainant was purchased from the 1^st opposite party on 23.08.2014.  It is further not disputed that after 53 days of its purchase, the air bag of the car got deployed.  The complainant would contend that the said deployment of the air bag was without any impact.  However, the opposite parties would contend that the deployment   of the air bag was due to the impact caused as a result of heavy jolting while the vehicle was crossing the railway gate.  The complainant specifically alleged that it was a manufacturing defect.  However, no material was produced before the Commission to prove that there was any manufacturing defect as alleged by the complainant.  No material was also available before the Commission to indicate that the car in question had any manufacturing defect. 

8.  Relying on Exhibit A4 newspaper cutting and Exhibit A6 series brochure, it was argued by the learned counsel for the complainant that eight lakh cars were recalled by the 2^nd opposite party due to the manufacturing defects in connection with the air bag.  We have gone through Exhibits A4 and A6 series.  Exhibit A4 newspaper cutting would show that the cars manufactured during the period 2008-2012 had the defects and hence the said cars were recalled by the 2^nd opposite party.  Exhibit A6 series would show that the cars manufactured during the period 2002-2006 were recalled due to the manufacturing defects.  Exhibit A1 Certificate of Registration would show that the car of the complainant was manufactured in the year 2014.  It was specifically averred by the 2^nd opposite party that the car in question was not included in the cars which were recalled due to the manufacturing defects.  No material is available to show that any car in the batch of the car of the complainant had been withdrawn due to the manufacturing defect.   No expert was also appointed by the complainant to prove that the vehicle had any manufacturing defect.  In the absence of any evidence, we are unable to find that the car in question was having any manufacturing defect. 

9.  Exhibit A7 letter would show that the car was repaired free of cost and all the defects were rectified.  The air bag was replaced.  The complainant was also requested, as per Exhibit A7 letter, to take the delivery of   the vehicle of the complainant from the workshop.  Even though the 1^st opposite party had requested the complainant to take back the vehicle from the workshop, as the vehicle had been already repaired, the complainant did not take back the vehicle from the workshop as the 1^st opposite party was not prepared to give any undertaking in writing that the air bag would not be deployed in future, without any impact. As the 1^st opposite party was only a dealer, he was not competent to give any such undertaking, is the contention of the 1^st opposite party.

 10.  It is clear from Ext. A7 that the vehicle was repaired and it was ready for delivery on 26-11-2014. However, the complainant did not take   delivery of the vehicle from the shop.  In a similar situation, the National Commission in Mahindra & Mahindra Ltd. Vs. B.G. Thakurdesai and another reported in 1993 0 CPC(NC) 364 : 1993 2 CPJ(NC) 225 : 1993 1 CPR(NC) 170 declined to grant the relief sought for by the complainant as the complainant was not prepared to take back the vehicle after having duly repaired. 

11.  In the case on hand, the complainant was not prepared to take delivery of the vehicle from the work shop.  Therefore, the 1^st opposite party cannot be again directed to rectify the defects. However, it is seen from Exhibit A7 that there was a delay of more than one month in completing the repair of the vehicle, which had, no doubt, caused financial loss to the complainant.  The complainant had to spend huge amount for the purchase of the vehicle.  The vehicle had to be kept idle without use for more than one month.  During the said period, the complainant suffered mental stress and agony.  Considering the facts and circumstances of the case, including the mental agony, financial loss and hardships caused to the complainant, the District Commission had ordered a compensation of Rs. 1,00,000/- (Rupees One Lakh only) and a costs of Rs. 10,000/- (Rupees Ten Thousand only) to the complainant. 

12.  Having gone through the relevant inputs we are of the view that the compensation and the costs ordered by the District Commission do not warrant any interference by this Commission.  Since the vehicle was already repaired as per Exhibit A7, the complainant shall be at liberty to collect the vehicle from the work shop of the 1^st opposite party.  The direction of the District Commission to the 1^st opposite party to give two years fresh warranty cannot be sustained as the 1^st opposite party was only a dealer. That apart, no manufacturing defect has been proved in this case.   Since the vehicle was already repaired, the direction by the District Commission to the 1^st opposite party to rectify the defects was unwarranted. 

In the result, these appeals stand allowed in part, the compensation and the costs ordered by the District Commission stand confirmed and all other directions in the order impugned stand set aside. The 1^st opposite party is directed to deliver the car to the complainant.  In the circumstances of the case, there is no order as to costs in this appeal.

The statutory deposit made by the appellants in both the appeals shall be given to the 1^st respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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