State Consumer Disputes Redressal Commission
Maruti Suzuki India Limited vs Ana Paula Sanches on 15 May, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA Appeal No. 40/09 Maruti Suzuki India Limited Formerly known as (Maruti Udyog Limited) Plot No. 1, Nelson Mandela Road, Vasant Kunj, New Delhi 110070 Appellant v/s 1. Ana Paula Sanches r/o. Flat No. C-G/8, Ground Floor, Block-C, Almeida Residency Mapusa, Bardez Goa. 2. M/s. Chowgule Industries Ltd., Campal, Panaji-Goa. Respondents. Adv. Shri. U.D. Rao is present for the Appellant. Adv. S. Chodankar is present for Respondent No. 1. Adv. A. Naik is present for Respondent No. 2 Coram: Shri Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 15/05/2012 ORDER
[Per Shri Justice N. A. Britto, President] Maruti Suzuki India Ltd., the manufacturer of the vehicle and O.P. No. 1 in C.C. No. 94/2003, has filed this appeal against order dated 10/3/2009 of the Lr. District Forum, North Goa at Porvorim by which the O.P. No. 1, has been ordered to refund to the complainant the sale price of Rs. 3,89,679/- and cost of Rs. 10,000/-, within a period of 10 days.
2. The complainant purchased through O.P. No. 2, the authorized dealer of O.P. No. 1, on 8/6/02 a Maruti Zen Lxi vehicle for Rs. 3,89,679/- which was registered subsequently under No. GA-01-R-3340.
The car had a warranty for a period of 24 months or 48,000 kms. whichever event occurred first. Three free services were provided for. The warranty was subject to certain terms and conditions as set out in the Owners Manual and Service Booklet.
3. The complainant sent the vehicle for first free servicing on 25/6/2002 at 947 kms and O.P No. 2 was required to check up the pick up, mileage and A.C. cooling. The complainants car was attended to and the said problems were sorted out to the satisfaction of the complainant and there was no problem thereafter in relation to the pick up or the A.C. cooling.
4. The case of the complainant was that the car had done 160 kms. when the complainant purchased the vehicle from O.P. No. 2 when the normal average of a new car ought to have been 50 to 60 kms. According to the complainant, this defect or deficiency was noted by the complainant after 10 days.
5. We fail to understand, firstly, as to why the complainant accepted the car on 8/6/2002 having done 160 kms. In case the car had done 160 kms then it was the duty of the complainant to have brought it to the notice of O.P. No. 2, there and then, or not have accepted the car. It is not the case of the complainant that she had noted down the said mileage on the odometer. We also fail to understand as to how the complainant could come to know of the said mileage after running the car for about 10 days. In any event, the O.P. No. 2 has explained, in fairness, that they have two showrooms, one at Campal-Panaji and other at Fatorda-Margao and the vehicles are shifted at both the places for displays as and when required and as such there was a possibility of a new car running 160 kms but the fact that the said car had done 160 kms, before the delivery did not have any bearing on the defects enumerated in the complaint.
6. The next grievance of the complainant was that the complainant noted that rust water was seeping from the rear door of the car. According to the complainant O.P. No. 2 promised to replace the door and in fact the door was replaced. O.P. No. 2s version is that due to heavy rains in Goa lot of dirty water enters the door panels and flows out through the drain holes, due to this rust type small lines (2 in number) were seen on the door panels, which could have been easily polished out, but since the complainant was insisting on the new door the same was replaced by a new one. We proceed on the assumption that the problem of rust water seeping from the rear door was due to a defective door and for that reason that the O.P. No. 2 replaced the rear door by a new one.
7. The next grievance of the complainant was that inspite of several visits to O.P. No. 2 the mechanics of O.P. No. 2 could not fit the said replaced door properly in the same position in as much as it does not fit properly even now and as such there is permanent defect left in the new car. The complainant also stated that after a couple of weeks the complainant noticed damaged paint on the right side door frame of the said car near the hinges and at the other spot/places where paint had been damaged during the process of replacement of the said door and also found that normal touch up which was required to be done at the time of replacing the defective door had vanished and at the time of second service more areas of rust near the fuel tank filling pipe were found and were not touched up properly and only a spot of paint was applied and the vehicle was returned without proper work. The complainant therefore sent an e-mail letter to O.P. No. 1 and O.P. No. 1 advised the complainant that they had advised O.P. No. 2 to register a complaint and Mr. Rajendra Bhat, Regional Service Representative to contact her to attend to her vehicle to her satisfaction. O.Ps version is that when hinges were removed from the car, the paint got slightly damaged which required a touch up and as this facility was not available at workshop at Campal-Panaji, the Complainant agreed to do that work at Fatorda-Margao during the second servicing. According to them no more rusty areas were shown to O.P. No. 2 at the time of second servicing and the touch up of the car was properly done and in fact the complainant gave in writing that the job was well done; the car was shown to Mr. Rajendra Bhat, Deputy Manager (Service) on 17/9/2002 who advised to do required touch up at the time of second servicing and he did not agree that there is any defect in the manufacturing of the car.
8. The car was taken for second servicing on 23/9/02 at 5846 kms and that is after O.P. No. 2 requested the complainant to bring the same by their letters dated 21/8/2002, 24/8/2002 and 27/8/2002. The car was delivered back to the complainant on 28/9/02 and the complainant signed a note of satisfaction on that day to the extent that the complainant commented that the painting job was well done. Before delivery, the Service Engineer had road tested the car with Mr. Sanchez and found the door alignment was OK and there was no noise from any of the doors during the test drive. As a matter of goodwill the complainants vehicle was provided with anti-rust coating, free of charge.
9. That is the substance of the dispute between the parties raised by a complaint which is otherwise vague and without sequence of events.
10. The complainant sought for replacement of the car, Rs. 65,000/- by way of compensation; and Rs. 15,000/- for repairs. As regards the repairs, the O.P. No. 2 stated that the complainant paid Rs. 5000/- for repairs for the removal of dents which the complainant had put on the door panel and damage to outer rear view mirror due to some external hit and the complainant was charged because the repair was occasioned due to an accident. These facts have been suppressed by the complainant. There is no counter to the same.
11. The Lr. District Forum has ordered for refund of the purchase price and that was not a prayer which was made by the complainant. No reasons have been assigned by the Lr. District Forum as to why prayer (a) for replacement was not granted and instead refund of purchase price has been ordered. The Lr.
District Forum has discharged O.P. No. 2 from any liability.
12. We have heard the Lr. Advocates of respective parties at length and considered the citations cited by them. Reliefs were granted in the decision cited on the facts prevailing in each of the said cases and we find there is no similarity between this case and the facts of the cases relied upon. Could there be any dissatisfaction on the part of the Complainant after the Complainant recorded the satisfaction note on 28/09/02?
13. The complainant had alleged that there was noise inside the car while driving even on a smooth surface and they had mentioned about the same at the time of servicing. The O.Ps have stated that the complainant brought the vehicle only thrice namely on 25/06/2002, 23/09/2002 and 26/2/2003 i.e. for the three free services provided for by the O.Ps. The complainant had not produced any job cards nor any letter written by her to say that the noise inside the car while driving was brought to the notice of O.P. No. 2, and the satisfaction note dated 28/09/02 would otherwise show that whatever deficiencies were there were rectified by O.P. No. 2. The Lr. District Forum has observed that the persons who filed affidavits on behalf of O.Ps are non technical persons. Were the complainant or her husband technical persons? The Lr. District Forum has also observed that there are no documents produced by the O.Ps in support of their defence. Wasnt the satisfaction note produced by the O.Ps not sufficient evidence to support their defence? The Lr. District Forum has further observed that the onus of proof lies on the O.P. to prove with expert evidence to show that there was no manufacturing defect. Since when are we following reverse burden of proof? The approach of the Lr. District Forum is wholly fallacious. The onus of proof primarily has to be discharged by the complainant to show that there was any manufacturing defect in the vehicle purchased by the complainant; and that could be done either by leading evidence of an expert or some job cards or at least of some correspondence to that effect.
14. The National Commission in Sushila Automobiles Pv. Ltd. vs. Dr. Birendra Narain Prasad & ors. ( (III) (2010) CPJ 130 (NC)) has stated that to establish a claim for the total replacement by a new vehicle, complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. The Lr. Commission has further observed that the Honble Supreme Court as well as the Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. The Commission has further observed that merely because the car was taken to the workshop or because of number of letters were written, it will not by itself amount to manufacturing defect. The Lr.
Commission also referred to Maruti Udyog Ltd., V/s. Susheel Kumar Gabgotra & anr. ((II) (2006) CPJ 3 (SC) = (2006) 4 SCC 644) wherein it was held that where defects in various parts of a car are established, direction for replacements of the car would not be justified and replacement of the entire item or replacements of the defective parts only was called for.
15. In the case at hand, the entry of seepage of rusty water was attended to by the replacement of the door, then by re-painting of the paint which was damaged in the process of replacing the door. The complainant did not even produce photographs to show that the replaced door was not aligned properly and the evidence on record shows that the Service Engineer of the O.Ps had attended to the vehicle of the complainant and the complainant has recorded her/his satisfaction and in such a situation we fail to understand as to how the Lr. District Forum could have passed an order for refund of the purchase price, more so when the impugned order was made, the vehicle of the complainant had covered extensive mileage of over 1 lac kms, going by the mileage disclosed/covered at the time of first and second servicing.
16. Not that the complainant would not have been entitled to some compensation for the trips made by the complainant to attend to the said defects including for four days when the complainants car remained in the workshop of O.P. No. 2 from 23 to 26/2/2003. Compensation considering the facts of the case, could not have been more than Rs. 25,000/-.
17. Considering the facts and discussion supra, we allow the appeal and set aside the impugned order and direct that the amount of Rs. 25,000/- paid by O.P. No. 1 at the time of filing of this appeal be paid to the complainant with accrued interest, if any, by way of compensation. Appeal and the Complaint shall stand allowed and impugned order modified accordingly.
Considering the facts, parties will bear their own costs.
(Smt. Vidhya R. Gurav] (Justice Shri. N.A. Britto) Member President