State Consumer Disputes Redressal Commission
T.P.Abraham, vs . M/S. Indus Motors on 5 August, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/931 (Arisen out of Order Dated 16/08/2012 in Case No. CC/07/61 of District Thiruvananthapuram) 1. T.P.ABRAHAM THOPPIL VEEDU,ELAMPAZHANOO.P.O,CHADAYAMANGALAM KOLLAM KERALA ...........Appellant(s) Versus 1. MARUTHI ZUZUKI INDIA LTD NELSON MANDELA ROAD,VASANT KUNJ NEW DELHI DELHI ...........Respondent(s) BEFORE: SMT.A.RADHA PRESIDING MEMBER SMT.SANTHAMMA THOMAS MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.931/12
JUDGMENT DTD:05/08/2013
(Appeal filed against the order in C.C. No. 61/2007 on the file of CDRF, Thiruvananthapuram, dt: 16.08.2012)
PRESENT
SHRI.K.CHANDRADAS NADAR: JUDICIAL MEMBER
SMT. A. RADHA: MEMBER SMT. SANTHAMMA THOMAS: MEMBER T.P.Abraham, Thoppil Veedu, Elampazhannoor P.O., -- APPELLANT Chandayamangalam, Kollam Dist. V/s. 1. M/s. Indus Motors, Pattom P.O., Thiruvananthapuram - 4 2. Aneesh (Kadakkal) Dy. Team Leader, -- RESPONDENTS C/o. Indus Motors Pattom, Thiruvananthapuram - 4. 3. Maruthi Suzuki India Ltd., Nelson Mandela Road, Vasant Kunj, New Delhi - 110 070 (By Adv. Aboobacker P.K. & Deepesh A.S. for R1 & R2) JUDGMENT SMT. SANTHAMMA THOMAS: MEMBER
This appeal takes order dated 06.08.2012 passed by Consumer Complaint No. 61/2007, by the Ld. District Consumer Disputes Redressal Forum, Thiruvananthapuram. The Ld. Forum below allowed the complaint and ordered 1st Respondent & 3rd Respondent shall jointly and severally rectify the defects in the vehicle in dispute to the satisfaction of the complainant free of cost within a period of one month from the date of receipt of order, failing which 1st Respondent & 3rd Respondent shall jointly and severally pay Rs.2 lakhs to the complainant and on acceptance of the said amount complainant shall return the vehicle in dispute to the opposite parties. The 1st Respondent & 3rd Respondent shall also pay an amount of Rs.10,000/- towards compensation and Rs.5,000/- as costs of the proceedings. Failing to comply in one month from the date of receipt of the order the entire amount shall carry an interest @ 9% from the date of receipt of the order. The complainant feeling aggrieved and unsatisfactory preferred this appeal.
Brief facts are Shri. T.P. Abraham (Complainant) purchased a Maruthi Omni Van from Ms. Indus Motors (1st Respondent) on 27.12.2006 through Shri. Aneesh (2nd Respondent) an employee of 1st Respondent. In this Complaint Maruthi Suzuki India Ltd. is 3rd respondent. The Complainant started facing troubles with his car from the initial days of purchase onwards and the same was informed to the 1st Respondent for which the respondents promised the defect will cured during the first service. After the first service i.e. on running 888km with the 1st respondent, the complainant's car started further problems whereby he had no other option other than to return the car to 1strespondent for repair. Likewise the car had to be returned to workshop several times. The complainant even believes the car sold to him was older than what was been informed on purchase. The respondents raised averments that Complainant did not point out the alleged defect in the vehicle at the time of the said services; whenever the complainant had brought the vehicle for engine overheating Respondents had rectified the repairs and defects pointed out by the complainant are only normal defects and the same are all curable defects. The Respondent states they duly discharged their warranty obligations which are specific as per clause 3 of warranty policy and the complainant has no right to demand anything beyond the terms and conditions of warranty. The Ld. Forum below appointed as expert commissioner to ascertain the condition of the vehicle and a detailed report was called upon. Based on the submissions and evidence Forum Below passed the order.
The above order of the District Consumer Disputes Redressal Forum, Thiruvananthapuram has been challenged in the appeal filed before us under section 15 of the Consumer Protection Act, 1986, substantially on the following grounds:
· The Lower Forum have not given importance as to the Pre-Delivery Inspection date of the vehicle seen in the manual and service book, whereby the complainant disputed he has been sold an old vehicle as a new one.
· The disparity of model names used in exhibits submitted in the Lower Forum and the Commission Report.
· The disparity between the Performa invoice and account statements made available to the commissioner.
We called for and perused the records and proceedings of the Lower Forum and gave due consideration to the submissions of learned counsel for the Complainant and Respondents.
In the case between Dr.K.Kumar, advisor Engineering, Maruthi Udyog Limited Vs. Dr. A.S. Narayan Rao and another (1) (2010) CPJ 19 of the Hon'ble National Commission held that it is necessary to have expert's evidence regarding manufacturing defects in the car. Regarding the appointment of Commissioner for expertise opinion can be interpreted under Section 13 (1) ( c ) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act' for short) states that; "where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum", and Section 13 (1) (f) states the objection as to the report or opinion submitted by such commissioner, "if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory". In this matter there had no objections been raised in the Lower Forum either by complainant or respondent and hence we ascertain that this report is validly binding.
Now arriving at the main objectionable claims made by Complainant; the Pre-delivery inspection ("PDI") in service manual book is specified as 19/11/2006 and whereas all other records rely on the date as 27/12/2006. However commissioner report it states PDI was conducted on 27/12/2006 at odometer reading 04 km and hence date reference as complainant argues is not predominant issue here, if it was older the odometer reading would be different. The ambiguity as to when PDI was conducted does not at all raise an alarm as if the vehicle provided to the complainant was a defective one. The disparity of model names, we rely on the commissioner report were details such as chassis number and engine number are same compared to all the documents. The disparity between the Performa invoice and account statement made available to the commissioner is raised by the complainant because he claims that he had made a payment for extended warranty. Performa invoices are commonly used as preliminary invoices with a quotation and they differ from a normal invoice in not being a demand or request for payment hence it is not a valid averment.
Before Hon'ble Supreme Court of India in Maruti Udyog Ltd. Vs. Susheel Kumar Gabagotra (2006) 4 SCC 644, the Hon,ble Supreme Court clearly defined how warranty must be interpreted especially by Judicial bodies. "In Corpus Juris Secundrum the observations to which reference was made by the High Court read as follows: On a sale of a motor vehicle by a manufacturer to dealer there may be an implied warranty that it is reasonably fit for, or adapted to, the uses for which it is made and sold; and such a warranty is not excluded by the silence of the contract of sale as to warranties. The principles stated above can never be doubted. But what is relevant in the case at hand is that the warranty conditions were specially stated. This is not a case of silence of a contract of sale as to warranty. Therefore, the High Court was not justified in directing replacement of the vehicle". The Supreme Court referred to clause 3 of the manual which reads as under:
"If any defect(s) should be found in a Maruti Vehicle within the term stipulated above, Maruti's only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacements which are not covered by this warranty." During the proceeding before us even the respondents were raising the importance of this clause; the Supreme Court observed that what is relevant in this case is that the warranty conditions were specially stated.
Similarly the vehicle was used for traveling purpose by the complainant, as we see in accordance to the commissioner report the odometer reading of complainant van during the inspection date was shown as 24459 km completed. In RP/70/2010 Gulab Vs. Force Motors Ltd. & Anr, Hon'ble National Commission (22/05/2012) give reference to another case judgment which states - it was held that the car purchased by the buyer was defective. The complainant/buyer moved an application for replacement or in the alternative refund of the price of the car. It also transpired that the vehicle was extensively used for 7 months. It was held that M/s. Maruti Udyog Ltd. & Anr the seller of the car was not liable to replace or refund the money.
However as clearly laid down by the Ld. Forum below there had been a serious deficiency in service from the respondents. Although from the beginning complainant was facing trouble due to the misuse of switching between petrol and LPG, but however if the respondents had given due and proper advice along with attention the complainant would have saved much of his savings and time from strenuous repairing of his vehicle. The expert commissioner has concluded that the vehicle has developed overheating many times and got broke down while it was driven on LPG. The engine coolant temperature sensor and water temperature gauge assembly were found damaged and replaced. But the overheating problem of the vehicle still persists during long drives. Further the report states that the LPG evaporator of the vehicle was found assembled in a wrong way. The engine and gas kit was not tuned properly. This may be one of the reasons for misfiring, less mileage and low pulling of the vehicle. That the gas kit was dismantled, cleaned and serviced many times at different service centers for performance. This could be treated as a service error and he has finally concluded that the replacement of existing gas conversion kit and LPG cylinder may solve the existing problems of the vehicle.
In the light of above points this Commission finds;
1. that the 1st Respondent and 3rd Respondent jointly and severally are directed to remove the defect, if any, in the vehicle make it roadworthy, if necessary by reconditioning the vehicle and deliver it to the complainant. This should be done within a period of one month, thereafter provide a warranty for the replacement done for one year from the date of delivery.
2. There is no doubt that the complainant had suffered mental agony by repeatedly approaching the respondents for repairing his car and unpredictable break-downs causing trauma while traveling. For this mental agony and we direct that the complainant shall be entitled to a sum of Rs.50,000/- The liability to pay this amount shall also be joint and several of both the 1st and 3rd Respondents. This amount is to be paid within a period of one month from today or else an interest at the rate of 8% per annum shall be applicable till payment.
3. The Appeal is disposed of in these terms and under the peculiar facts of the case, there would be no order as to costs. A copy of this order as per the statutory requirements is forwarded to the parties free of charge.
SANTHAMMA THOMAS: MEMBER
K.CHANDRADAS NADAR: JUDICIAL MEMBER
A. RADHA: MEMBER
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[ SMT.A.RADHA] PRESIDING MEMBER
[ SMT.SANTHAMMA THOMAS] MEMBER