BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 22nd day of November 2016

Filed on : 11/10/2013

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.703/2013

Between

U.I. John, : Complainant

Managing Partner, (By Adv. Yadhukumar P.,

Marthoma Granites, Infant Jesus Building,Ernakulam

Edavetty P.O., High Court road, Cochin-31)

Thodupuzha, Idukki.

And

1.Toyota Kirloskar Motor Pvt. : Opposite parties

Ltd., rep. by its CEO, (By Adv. Frijo K. Sundaram,

Head Office, Plot No. 1, M/s.Care Connection, 1st Floor,

Bidadi Industrial Area, Suburban Buildings, Mamangalam,

Ramnagar Taluk, Palarivattom P.O., Kochi-682 025

Bengaluru-562 109. Ernakulam)

2. Nippon Toyota, Rep. by its Managing Director, (2^nd opp. By Adv. P. Viswanathan, Nippon Motor Corporation Pvt. Ltd., Karthika, Asoka road, Kaloor, Mooppan Motors, X/314 K, Kochi-17) N.H. 47 Byepass. NettoorP.O., Cochin-682 040.

O R D E R

Cherian K. Kuriakose, President.

1. Complainant's case

1. 2. The complainant purchased a brand new Toyota Fortuner Car on 30-04-2010. It was manufactured by the 1^st opposite party and the 2^nd opposite party is its authorized dealer. The tyres of the car were of poor quality. During January 2013 the Air conditioner of the car stopped working and the complainant had entrusted the car for repairs with the 2^nd opposite party. After repairs the 2^nd opposite party issued a bill for Rs. 32,935/- for repairing the defects, which happened during the warranty period. The Air condition system in the car provided by the opposite party was defective and not of the quality and standard which it purported to be. The opposite party had rendered deficient and defective service. The complainant is entitled to get back Rs. 32,935/- with interest @ 18% p.a. and also to get a compensation of Rs. 3,00,000/- for the mental agony and sufferings undergone by him. Hence the complaint.

1. 2. Notice was issued to the opposite parties. Both opposite parties appeared and contested the matter by filing their respective versions.

   3. Version of the 1^st opposite party.

   4. The relation between the opposite parties are principal to principal. The 1^st opposite party is not liable for the deficiency if any committed by the 2^nd opposite party. The product supplied by the complainant in the car had no manufacturing defects. The Air conditioner was damaged due to external forces applied by the complainant by fixing additional horn near the condenser of the air conditioner which due to constant usage had caused physical damage to the condenser of the air conditioner. As there was no manufacturing defects despite a lapse of 3 years, the claim to get compensation and damages from the 1^st opposite party is not allowable.

   5. The 2^nd opposite party filed a version contending as follows:

   6. The performance of the tyre was fine. All new generation vehicle need periodical wheel alignment, wheel balancing and tyre rotation. The complainant did not care to do such periodical maintenance. The air conditioner was of excellent quality, but the complainant having fixed an extra horn caused to the condenser of the air conditioner which was not supplied or provided by the 1^st opposite party, during the usage of the vehicle the horn fitted start gradually slackened off and the same started rubbing the condenser of the air conditioner. Due that external impact the condenser got damaged and gas was leaked out. The complainant had given an estimate amount for replacing the condenser on 31-12-2012 itself. The estimated repair cost of Rs. 35,000/- was shown in the job card and it was counter signed by the complainant on 31-12-2012 itself and the complainant was made aware of such damage caused to the condenser as stated above. Those facts are revealed from the bills issued to the complainant . It is true that the manufacturer waranteed that it will be either repaired or replaced any part supplied by the manufacturer is found to be defective in material or workmanship under normal use except those items listed under the head “what is not covered” in the warranty card within a period of 36 months or 1,00,000 kmtrs. In this case the condenser was dam;aged due to external impact caused by the affixture of an additional horn in the vehicle by the complainant himself. The damage caused to the condenser by an external part will not come within the purview of warranty conditions. There was no deficiency in service, the complainant is not entitled to get any compensation as prayed for. The complaint is to be dismissed.

1. 2. The evidence in this case consists of the oral evidence of the complainant and Exbts. A1 to A5 on the side of the complainant. Exbts. B1 and B2 were also marked on the side of the opposite parties No oral evidence was adduced by the opposite parties.

1. 2. The following issues were settled for consideration

i. Whether the complainant had proved that the opposite parties have committed deficiency in service or any unfair trade practice as

alleged?

ii. Reliefs and costs.

1. 2. Issue No. i. The complainant is a partner in M/s. Marthoma Granites, doing quarry business. The vehicle was purchased in the name of the complainant as managing partner, Marthoma Granites, Thodupuzha. According to the complainant the non-working of the air conditioner after a period of 3 years of its service was due to manufacturing defects of the product and since the the product was covered under warranty for 3 years is entitled to get the refund of the amount paid by him towards repair charges. The complainant would argue that the Toyota car had a warranty for a period of 36 months or 1,00,000 kmtrs. which ever comes first. Since the air conditioner is not specifically stated as a part which was not covered under warranty, the complainant is entitled to get back the amount collected by the 2^nd opposite party by their repair charges. Exbt. A2 a is the repair bill invoice . It is seen that the condenser assembly costing Rs. 30155/- was changed and a new condenser was fitted. When PW1 was examined he admitted that an extra horn was fitted in the engine room. He also admitted that the horn had fallen on the compressor of the AC and that was the reason for the damage. He further admitted that the Extra horn that was not manufactured by the 1^st opposite party. The case of the opposite party was that the condenser of the air conditioner was damaged due to the external force caused by rubbing the horn constantly on the condenser which paved the way for leaking out the gas filled in the air conditioner. The complainant did not take out a commission and got examined the vehicle by an expert to prove that there was inherent manufacturing defects for the product (air conditioner). There is no dispute to the fact that the air conditioner was damaged due to the external force. One of the warranty condition is that the warranty is valid only when the vehicle or its parts were used in normal condition. In this case since external damage was caused to the condenser the complainant can not validly claim the refund under the cover of warranty. We therefore find the issue is against the complainant.

   3. Issue No. ii. Having found issue No.i against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed. In the above circumstances of the case, we make no order as to costs.

Pronounced in the open Forum on this the 22nd day of November 2016

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent

APPENDIX

Complainants Exhibits

Exbt. A1 : Copy of certificate of registration

A2 : Copy of bill dt. 05-01-2013

A2(a) : Copy of tax Invoice dt. 04-01-2013

A3(a) : Copy of warranty period

A3(b) : Copy of what is not covered

A4(a) : Copy of tax invoice dt. 06-10-2010

A4(b) : Copy of terms and conditions of sale

A5 : Authorization

Opposite party's Exhibits:

Exbt. B1 : Job order

B2 : Tax invoice dt. 04-01-2013

Depositions:

PW1 : Joseph George

Copy of order despatched on :

By Post: By hand: