BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 13/05/2011

Date of Order : 29/09/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 246/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant is the proud owner of a PRIUS-24 car bearing Registration No. KL-40/D 6600. The complainant purchased the vehicle on 15-11-2010 from the 2^nd opposite party, which was manufactured by the 1^st opposite party. The opposite parties provided warranty for 3 years or one lakh kilometers. He plied the vehicle only about 10600 Kms. till 07-03-2011. The complainant while driving the vehicle from Vaikom to Thalayolaparambu on 06-03-2011, he noticed a crack appearing on the left top portion of the front wind shield glass of the vehicle that gradually extended towards right. On 07-03-2011, he took the vehicle for service, the 2^nd opposite party informed that the glass could not be replaced under warranty coverage as they suspect that the crack was caused due to some external hit on it. The complainant was served with a job estimate for Rs. 34,212/- plus tax. There was no occasion to have any external hit or accident to the vehicle to cause crack to the glass, whereas the damage occurred due to its manufacturing defect or rather due to the defective assembly. The complainant was compelled to guarage his vehicle at his house. Even on a previous occasion, the complainant approached the 2^nd opposite party to replace head light bulb. But they did not replace the same, since spare bulb was not available. The complainant had to suffer lot of inconvenience and mental agony. So, the complainant is before us seeking direction against the opposite parties to replace the front wind shield glass under warranty together with a compensation of Rs. 1,25,000/- and costs of the proceedings.

2. The version of the opposite parties is as follows :-

On 07-03-2011, the complainant brought his vehicle with a complaint that there is a crack on the left top portion of the front wind shield glass. On inspection of the vehicle by the service engineer of the 2^nd opposite party, it was found that such crack was caused due to external hit by a foreign particle on the particular portion of wind shield. They advised the complainant to replace the front wind shield glass. The complainant requested to issue an estimate. The 2^nd opposite party duly issued the same. After 2 days, the complainant contacted the 2^nd opposite party and demanded replacement of the glass free of cost under the pretext that it is covered under warranty. Since the damage was caused not due to any manufacturing defect, the 2^nd opposite party expressed their inability to do so. On an earlier occasion, the complainant demanded to replace the bulb under warranty which was not covered. Since the bulb has not available in stock, the 2^nd opposite party informed that 3 days time is required for replacement. On 07-03-2011, the complainant again demanded to replace the bulb free of cost. The opposite parties are prepared to replace such components and parts on payment. The complainant is not entitled to get any of the reliefs as claimed for.

3. The complainant was examined as PW1 and Exts. A1 to A11 were marked. The expert commissioner was examined as PW2 and his report was marked as Ext. C1. The witness for the opposite parties was examined as DW1 and Exts. B1 to B4 were marked. Heard the learned counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complainant is entitled to get replacement of the front wind shield and head light bulb free of cost?

2. Whether the opposite parties are liable to pay a compensation of Rs. 1,25,000/- and costs of the proceedings to the complainant?

5. Point No. i. :- It is not in dispute that on 15-11-2010, the complainant purchased a PRIUS-24 car from the 2^nd opposite party, which was manufactured by the 1^st opposite party evidenced by Ext. A1. It is also not in dispute that warranty for a period of 36 months or 100000 Kms., whichever occurs first has been produced by the opposite parties evident from Ext. A2 warranty booklet.

6. According to the complainant, the damage of the front wind shield was caused due to its manufacturing defect or due to the defective assembly and he is entitled to get replacement of the same free of cost. On the contrary, the opposite parties vehemently contended that the defect of the wind shield was caused due to external hit by a foreign particle on the particular portion of wind shield. The complainant who was examined as PW1 and the witness for the opposite parties who was examined as DW1 stick to their respective contentions.

7. During the proceedings in this Forum, I.A. No. 264/2011 has been field by the complainant seeking direction against the opposite parties to replace the defective front wind shield of the vehicle. This Forum vide order dated 17-08-2011, directed the opposite parties to replace the wind shield provided the complainant deposits Rs. 34,212/- the price of the wind shield in this Forum. Both the parties duly complied with the above direction.

8. At the instance of the complainant, an expert commissioner was appointed by the Forum vide order in I.A. No. 265/2011 dated 02-06-2011. The expert commissioner was examined as PW2 and his report was marked as Ext. C1 which reads as follows :

“NATURE AND BRIEF DESCRIPTION OF THE COMPLAINT

It is reported by the petitioner that he was driving the vehicle from Vaikom to Thalayolaparambu on the vehicle on 06-03-2011, and noticed a crack appearing on the left top portion of the front wind screen glass; and the crack gradually extended towards the centre portion. Next day on 07-03-2011, the petitioner took the vehicle to the opposite party for repairing the vehicle.

OBSERVATION :

As per the following documents submitted by the opposite parties, viz.

1. Estimate No. BPE 11-01171 dtd. 07-03-2011.

2. Tax invoice No. CO 01A – Tax 11-07463 dtd. 07-03-2011, it was mentioned that, “vehicle came for reporting wind glass crack, inspected the wind glass and observed that the above concern happened by a external hit on the wind glass. A small portion of the glass chipped off from the top edge.”

This is only a presumption of the opposite party. In case of an external object hitting the wind screen glass the possibility is to hit the surface of the windscreen; not extreme edge. Further the hit will leave some kind of evidence on the nearby surface.

FINDINGS :

A hair line crack was found to be developed from the top left extreme periphery of the wind screen. A very minute loose chip was also found between the periphery of the wind screen and the wind screen mould; just from where the crack started. The surrounding areas (upper edge of the wind screen/windscreen moulding/upper metallic windscreen frame and the LH wind screen pillar) are absolutely free from any evidence of an external object hitting the wind screen glass.

REMARKS :

Based on my detailed inspection, in my opinion, the crack of the windscreen is purely due to the inherent defect of the glass itself, not because of any external hit as presumed by the opposite party.”

9. The opposite parties filed detailed objection against the report and PW2 was cross-examined at length. They went to file I.A. No. 454/2011 to set aside the expert commissioner's report. During cross-examination by the learned counsel for the opposite parties, the expert commissioner deposed that he had not conducted any scientific test to come to a conclusion in Ext. C1 report. However, on an overall evaluation of the report, which has not been averred against and on confirmation of the said facts as deposed, we are of the confirmed view that the report can be relied upon especially, in view of the fact that the opposite parties neither did nor care to submit any panel of experts before the Forum which they had an occasion to. It is probably for the same reason, they did not file any work memo before the commissioner to get their points assessed.

10. As per Ext. A2 warranty, the basic coverage of the vehicle is stated as follows :

“Toyota warrants that it will either repair or replace any Toyota supplied part that is found defective in material or workmanship under normal use, except those items listed under 'what is not covered', within a period of 36 months or 100,000 km, whichever comes first.”

It is worthwhile to note that warranty has not been excluded for front wind shield.

11. We wish to observe in the meanwhile. In spite of all considered findings, this Forum goes to rely upon a reliance on which the goodwill and reputation which 'Toyota Kirloskar Motor Limited' calls to confidence of consumers one and all.

12. In view of the above, we are only to hold that the defect of the front wind shield was caused due to manufacturing defect as confirmed by PW2 in Ext. C1 and the opposite parties are liable to replace the same as per Ext. A2 warranty conditions free of cost.

13. The complainant further contended that he is entitled to get replacement of the head light bulb from the opposite parties free of cost, but nothing is on record to show that the same suffers from manufacturing defect. For such reasons this Forum need not necessary post orders substantially. However, it is upto the opposite parties to take appropriate action anything consider fit.

14. Point No. ii. :- The complainant submitted Exts. A8 to A11 receipts to show that he had to hire another vehicle for his personal use, since he could not ply his vehicle due to the deficiency in service on the part of the opposite parties. We are not to accept the documents for the specified reason that the complainant has not taken any steps to prove the veracity of the same, despite the objection raised by the opposite parties. The onus of responsibility and respectability weights on the opposite parties, which necessarily need not be decided by this Forum.

15. In the result, we partly allow the complaint and direct that the complainant is at liberty to approach the Registry of this Forum to get the amount released, which he had deposited in furtherance of the order in I.A. No. 264/2011 dated 17-08-2011.

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

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

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 :-

=========