KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 168/2017

JUDGMENT DATED: 24.01.2023

(Against the Order in C.C. 217/2012 of CDRF, Malappuram)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.T.S.P. MOOSATH                                                                   : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                                          : MEMBER

APPELLANTS:

1. Manager, A.M. Motors, Near Vijayamatha Convent, Ponnani, Malappuram.

2. Managing Director, A.M. Motors, Down Hill, Malappuram.

(By Adv. R. Chandrapraveen)

                                                Vs.

RESPONDENT:

Yoonus K., S/o Ismayil, Kizhakkeakayil House, Vellyankode P.O., Ponnani Taluk, Malappuram.

JUDGMENT

SRI.T.S.P. MOOSATH: JUDICIAL MEMBER

The opposite parties 1 & 3 in C.C. No. 217/2012 of the Consumer Disputes Redressal Forum, Malappuram (in short, the District Forum) have filed this appeal against the order passed by the District Forum dated 08.06.2016.  By the said order the District Forum has directed the opposite parties to replace the vehicle of the complainant with a defect free vehicle of the same type and if that was not practicable, to supply a brand new vehicle of the same type to the complainant and if there is any difference in the price that difference shall be borne by the complainant.  If those options are not workable the opposite parties have been directed to return the vehicle of the complainant if it is in their custody to the complainant and pay Rs.4,00,000/- to him to repair the vehicle.  The opposite parties have also been directed to pay Rs.50,000/-as compensation and Rs.15,000/- as costs to the complainant.

2.  The averments contained in the complaint are in brief as follows:  Complainant and his brother Shereef decided to purchase a Maruthi Swift car for their domestic purpose.  The complainant booked the car in the name of his brother Shereef who is an NRI through the opposite party.    HDFC Bank financed for the vehicle.  On purchasing the vehicle it was registered with the registration No. KL-54-C-8299 in the name of his brother Shereef.  The vehicle was booked in the name of his brother only for getting the loan easily.  The vehicle was also insured by the complainant.  Complainant and his brother spent Rs.8,00,000/- to purchase the vehicle and it was delivered on 09.05.2012 in good condition.  The complainant was made to believe that the second opposite party would render quality service.  The service centre was the second opposite party owned by the third opposite party.  The first opposite party is also appointed by third opposite party.  As directed by the opposite parties, complainant produced the vehicle before second opposite party on 29.05.2012 for first service.  The vehicle was returned on 02.06.2012.  But at that time the vehicle was in a bad shape, looked ugly and scratches were found on the left door and front bumper corner side and rear left bumper.  The right door and front right fender were found jammed and seeing the damage caused to the vehicle the complainant was shocked.  When he enquired about the matter the officials of opposite parties revealed that the vehicle was damaged due to negligent driving of their service personnel.  They also promised that they would replace the vehicle within a week.  The complainant agreed for the same and took delivery of the car.  The complainant also insisted the second opposite party to take note of the defects.  Subsequently when the complainant contacted the second opposite party he was directed to contact the third opposite party.  Third opposite party firstly agreed to replace the vehicle but subsequently changed the promise and told him that the entire paint would be replaced.  But again complainant was informed that the vehicle would be repaired with a fresh coating of paint for which complainant was not amenable.  He also informed the third opposite party that he was not ready for a coat of paint with repair.  The opposite parties are dutybound to return the car in good condition after service.  Due to their negligence damage was caused to the vehicle and thus complainant is entitled to get the vehicle replaced with compensation of Rs.50,000/- for his mental agony together with costs.

3.    The opposite parties 1 and 3 filed a joint version raising the following contentions:  The opposite parties were willing and ready to provide helping hand to customers.  The complainant has to prove his case by producing supporting documents.  Thus, opposite party has never offered to replace the vehicle within a week.  The defect caused to the vehicle may be by rash and negligence driving of the complainant himself or by his relatives and friends.  The employees of the opposite parties have never driven the vehicle rashly and negligently.  Thus, opposite parties are willing to repair the defects of the vehicle.  There is no deficiency in service on the part of the opposite parties.  Complainant is not entitled to any amount from the opposite parties as claimed.

4.  The 2^nd opposite party was set exparte.

5.  Complainant filed affidavit and documents produced by him were marked as Exts. A1 to A3.  The opposite parties also filed affidavit and they have not produced any documents.  In the order of the District Forum it is stated that claim of the opposite parties 1 & 3 put forward by affidavit was struck off since opposite parties 1 & 3 failed to be present for being cross examined by the complainant in spite of repeated directions. 

6.  Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite parties 1 & 3 have filed the present appeal. 

7. Heard both sides.  Perused the records.

8.  The parties are referred according to their status/rank in the original complaint.  

9.  The counsel for the appellants submitted that the District Forum ought to have dismissed the complaint finding that the complainant has no locus standi to file the complaint.  He submitted that the vehicle was purchased by one Shereef and the complainant was not having any authority to file the complaint on behalf of the said Shereef.  So it is admitted by the opposite parties 1 & 3 that Shereef has purchased the vehicle from them.  In the complaint itself it is stated by the complainant that himself and his brother Shereef decided to purchase a car for domestic purpose.  The complainant booked the car in the name of his brother Shereef who is an NRI.  The vehicle was registered in the name of his brother Shereef only for getting the loan easily.  It is stated by the complainant that he has been using the vehicle.  As observed by the District Forum, in the version filed opposite parties 1 & 3, they have not disputed the right of the complainant to file the complaint.  They have no specific case that the complainant is not the brother of Shereef, the registered owner of the vehicle and the vehicle was not under the possession and use of the complainant.  As observed by the District Forum, in Ext. A3 owner’s manual and service booklet of the car purchased by the complainant, the name and address of the registered owner of the vehicle are stated and the same address is given in the complaint.  Ext. A1 is the letter alleged to have issued to the complainant by the 2^nd opposite party regarding the damage caused to the vehicle.  Ext. A1 was produced by the complainant along with the complaint.  But the same was not disputed by the opposite parties 1 & 3 in their version.  2^nd opposite party was ex-parte.  In Ext. A1 it is stated that the owner of the vehicle was Shereef.  The chassis No. of the vehicle stated in Ext. A1 and shown in Ext. A3 are one and the same.  PW1 deposed that he was the brother of the registered owner of the vehicle Shereef and Shereef was working in abroad and he had been using the vehicle.  There is nothing to disbelieve his testimony.  As per Sec. 2(1)(d) of the Consumer Protection Act 1986, ‘consumer’ includes any user of the goods other than the person who buys the goods for consideration and any beneficiary of the service other than the person who avails/hires the service for consideration.  As rightly found by the District Forum, the complainant has locus standi to file the complaint and the complaint is maintainable. 

10.  It is the case of the complainant that he purchased the car through his brother from the opposite parties.  In the complaint it is stated that 2^nd opposite party is the Service Manager of Maruti cars which is owned by 3^rd opposite party, A.M. Motors.  1^st opposite party is the Manager of A.M. Motors appointed by the 3^rd opposite party.  The said relationship of the parties stated in the complaint is not disputed by the contesting parties who are the opposite parties 1 & 3.  According to the complainant he gave the car to the 2^nd opposite party for the first service and when he came to take back the car he noticed that there were scratches and dents on different parts of the vehicle.  When he enquired about the matter the Service Manager of the 2^nd opposite party stated that the vehicle was taken by their staff members and damages occurred to the vehicle due to the negligent driving of the vehicle by the staff members.  As demanded by the complainant the Service Manager of the 2^nd opposite party issued Ext. A1 letter admitting that the defects noted in the letter are caused to the vehicle due to the negligent driving of his staff members.  It is stated by the complainant that the service manager of 2^nd opposite party agreed to replace the vehicle and on that assurance he had taken delivery of the vehicle.  But later when he approached the 2^nd opposite party he directed him to contact the 3^rd opposite party.  The 3^rd opposite party agreed to replace the vehicle.  But subsequently he changed his stand and told him that the damage would be rectified and the entire paint would be replaced with a fresh coating of paint and it was not agreed by the complainant.  It is stated by the complainant that at his instance the service manager of the 2^nd opposite party issued Ext. A1 letter admitting that the defects noted in the said letter, caused to the vehicle were due to the negligent driving of his staff members at the time of service.  Ext. A1 was produced by the complainant along with the complaint.  As stated above, in their version, opposite parties 1 & 3 have not disputed Ext. A1 and the 2^nd opposite party is ex-parte.  But at the time of cross examination of PW1 opposite parties 1 & 3 disputed Ext. A1.  The contention of opposite parties 1 & 3 is that the defects caused to the vehicle may be due to the rash and negligent driving of the vehicle by the complainant himself or his relatives or friends.  As observed by the District Forum, Ext. A1 cuts at the root of defence taken by the opposite parties.  It is to be noted that in the order of the District Forum it is stated that the claim of the opposite parties 1 & 3 put forward by affidavit was struck off since the opposite parties 1 & 3 failed to be present for being cross examined by the complainant in spite of repeated directions.  In the light of Ext. A1 in which the damages/defects caused to the car are noted, there is no basis for the contention of the appellant that the complainant had not taken any steps to appoint an expert commissioner to prove the damage caused to the car.  It is to be noted that the vehicle was a brand new one and the defects were caused to the vehicle by the 2^nd opposite party during the first service of the car.  The defects noted to the car in Ext. A1 are very fatal to the look and appearance of the vehicle.  No owner of a vehicle will accept such defects in the vehicle during service. In the normal course at the time of service scratches and bents will not be caused to the vehicle and the reason will be as stated in the complaint and in Ext. A1.  Hence the complainant was justified in demanding replacement of the car at that time.  The opposite parties did not accept the request of the complainant to replace the car.  Considering all these facts, the District Forum found that there was deficiency in service on the part of the opposite parties.  We consider that there is no reason/ground to interfere with the order passed by the District Forum. 

11.  The District Forum passed the order on 08.06.2016.  The District Forum observed that cause of action for the complaint arose in 2012 and there may be difficulty in giving a defect free car of the same type to the complainant.  It was directed by the District Forum that if the opposite parties are able to deliver a defect free car to the complainant preference shall be given to that option and if that option is not practicable the opposite parties shall give a new vehicle of the same type to the complainant and if there is difference in the price of the vehicle of the complainant and new vehicle, that difference should be borne by the complainant.  The District Forum directed that if the above two options are not workable the opposite party shall return the vehicle to the complainant if it is in their custody and shall pay Rs. 4,00,000/- to repair the vehicle.  Of course, at that time the complainant was justified in demanding replacement of the car since all the defects to the car occurred on the first service of the new car.  It is admitted by the complainant that he had taken delivery of the car from the 2^nd opposite party and the car was with him.  As observed by the District Forum, the cause of action for the complaint arose in 2012.  After that several years have elapsed.  The counsel for the appellants submitted that the complainant has been using the car for these years and he has no case that he could not use the car.  She pointed out that even according to the complainant there was no mechanical defect to the car, defect to the engine, gear box, brake system etc. which will render use of the vehicle difficult.  Even according to the complainant there were only outer damages to the vehicle, damages to the bumper, dents, scratches, loss of paint etc. In these circumstances, we consider that it is unjust and unreasonable to direct the opposite parties to replace the vehicle with a new one.  Considering all these facts, we consider that the order passed by the District Forum is to be modified.  The opposite parties are directed to pay Rs. 4,00,000/- to the complainant for repairing the vehicle, as he wishes. 

12.  The District Forum directed the opposite parties to pay Rs. 50,000/- as compensation and Rs. 15,000/- as costs to the complainant.  The counsel for the appellants submitted that the compensation and costs ordered by the District Forum are on the higher side and he prayed that those may be reduced.  We consider that the compensation and costs ordered by the District Forum are on the higher side and those are to be reduced to Rs. 20,000/- and Rs. 5,000/- respectively.  The District Forum directed the opposite parties to pay the amount with interest @ 12% per annum from the date of complaint till realization.  We consider that the rate of interest ordered by the District Forum is to be reduced to 9% per annum.  So the order passed by the District Forum is to be modified to the extent as stated above. 

In the result, the appeal is partly allowed and the order passed by the District Forum is modified as follows: The opposite parties are directed to pay Rs. 4,00,000/- to the complainant for repairing the vehicle and Rs. 20,000/- as compensation with interest @ 9% per annum on that amount from the date of complaint till realization.  They are also directed to pay Rs. 5,000/- as costs to the complainant.

Parties are directed to suffer their respective costs. 

At the time of filing of the appeal, the appellants have deposited Rs. 25,000/-.  The respondent/complainant is permitted to obtain release of the said amount on filing proper application to be adjusted/credited towards the amount due to him from the appellants. 

                                                                     Sd/-

JUSTICE K. SURENDRA MOHAN  : PRESIDENT          

                                                               Sd/-

                              T.S.P. MOOSATH  : JUDICIAL MEMBER  

                                                            Sd/-

                                                                                     BEENA KUMARY. A         : MEMBER

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