State Consumer Disputes Redressal Commission
M/S Indus Motor Co. Pvt. Ltd., vs Vettoor R. Jayaprakash, on 2 July, 2010
Daily Order
First Appeal No. A/09/449
(Arisen out of order dated 15/04/2009 in Case No. CC 98/02 of District Thiruvananthapuram)
Indus Motor Co. Pvt. Ltd.
Vs.
Vettoor R Jayaprakash
BEFORE :
Sri.M.V.VISWANATHAN
, PRESIDING MEMBER
PRESENT:
None for the Appellant
None for the Respondent
Dated the 02 July 2010
ORDER
Disposed as Allowed in Part KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL Nos. 379/2009 & 449/2009 JUDGMENT DATED: 02-07-2010 PRESENT:
SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER SHRI. CHANDRA MOHAN NAIR : MEMBER APPEAL No. 379/2009 APPELLANT M/s Maruti Suzuki India Limited (Formerly known as Maruti Udyog Limited) Plot No. 1, Nelson Mandela Road, Vasant Kunj, New Delhi - 1100070 (Rep. by Adv. Sri. V. Santharam & Sri. G.S. Prakash) Vs RESPONDENTS
1. Vettoor R. Jayaprakash, S/o Late Ramakrishnan, R/o Ananda Bhavan, Market Road, Attingal - 695101.
2. M/s Indus Motor Co. Ltd., Thiruvananthapuram, Represented by the Manager Indus Motor Co. Ltd., T.C. 24/885, Mettukada, Thycaud, Thiruvananthapuram.
(R2 rep. by Advs. Sri. P.K. Aboobacker & Sri. Deepesh A.S ) APPEAL No. 449/2009 APPELLANT M/s Indus Motor Co. Pvt. Ltd., Thiruvananthapuram, Represented by the Manager Indus Motor Co. Ltd., T.C. 24/885, Mettukada, Thycaud, Thiruvananthapuram.
(Rep. by Advs. Sri. P.K. Aboobacker & Sri. Deepesh A.S) Vs RESPONDENTS
1. Vettoor R. Jayaprakash, S/o Late Ramakrishnan, Ananda Bhavan, Market Road, Attingal
2. The Chairman, Maruti Udyog Ltd., 11th Floor, Jeevan Prakash, 25th Kasthurba Gandhi Marg, New Delhi - 110001.
(R2 rep. by Adv. Sri. V. Santharam & Sri. G.S. Prakash) COMMON JUDGMENT SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER The above appeals are preferred from the common order dated 15-04-2009 passed by CDRF, Thiruvananthapuram in OP Nos. 98/02 & 191/2003. The complaints therein were filed alleging deficiency of service and unfair trade practice on the part of the opposite parties 1 and 2 in effecting sale and service of a Zen Diesel Motor Car which was purchased by the complainant on 15-09-1999. The complainant also alleged manufacturing defect in the aforesaid vehicle and also alleged deficiency in service in realizing repairing charges from the complainant for rectifying the manufacturing defects in the said vehicle. Opposite parties entered appearance and filed separate written version denying the alleged deficiency of service on their part. They also contended that the complaint is not maintainable and that the same is barred by limitation. They also denied the alleged manufacturing defect in the said vehicle and contended that the complaint is filed suppressing the material facts. It is further contended that the defects in the vehicle occurred due to the improper use of the vehicle by the thieves who committed theft of the vehicle on 06-08-2000 and also due to the negligent driving of the said vehicle. Thus, the opposite parties prayed for dismissal of the complaint in OP No. 98/2002.
2. The complaint in OP No. 98/2002 was considered by the CDRF, Thiruvananthapuram by recording the documentary evidence adduced from either side and also C1 Commission report filed by the expert Commissioner. The Forum below passed the order dated 02-06-2003 directing the opposite parties to pay a sum of Rs. 2,25,000/- as compensation to the complainant with future interest at the rate of 14.5% per annum and costs of Rs. 3,000/-. Aggrieved by the said order dated 02-06-2003, the first opposite party filed appeal 655/2003; the second opposite party filed appeal 681/2003 and that the complainant who being dissatisfied with the quantum of compensation ordered by the Forum below preferred appeal 665/2003. This State Commission jointly heard the aforesaid 3 appeals and passed the judgment dated 07-08-2007 remanding the matter to the Forum below for affording opportunity to the parties to the complaint in OP No. 98/2002 to adduce further evidence in support of their respective cases. The parties were directed to appear before the Forum below on 09-10-2007.
3. Before remand Exts. P1 to P14 were marked on the side of the complainant and D1 and D2 on the side of the opposite parties. The report submitted by the expert Commissioner was marked as Ext.C1. After remand Ext.P15 and P16 documents were also marked on the side of the complainant. No further evidence was adduced from the side of the opposite parties.
4. During the pendency of OP No. 98/2002, the complainant preferred OP 191/2003 and the Forum below tried both the original petitions jointly and passed the impugned common order dated 15-04-2009. The complaint in OP No. 191/2003 was filed to direct the opposite parties to reimburse the amount collected from the complainant for effecting repairs when the disputed vehicle was entrusted with the second opposite party dealer to rectify the engine problem which resulted in the sudden breakdown of the engine on 11-02-2003. The Forum below after hearing both parties passed the impugned common order directing the opposite parties to refund a sum of Rs. 2,24,311/- to the complainant with compensation of Rs. 10,000/- and costs of Rs. 5,000/- with a default clause to pay interest at the rate of 18% per annum if the decree debt is not paid within 2 months from the date of receipt of the impugned order. The OP 191/2003 was dismissed in the light of the aforesaid order passed in OP 98/2002. Aggrieved by the said order, appeal 379/2009 is filed by the first opposite party, manufacturer of the vehicle and Appeal No. 449/2009 is preferred by the second opposite party, the dealer of the disputed vehicle. In both these appeals, the complainant is shown as the first respondent.
5. We heard both sides. The learned Counsel for the appellant/first opposite party submitted his arguments based on the grounds urged in the appeal memorandum in Appeal 379/2009. He argued for the position that the Forum below has gone wrong in relying on C1 Commission report without considering the objection filed by the first opposite party to the said Commission report. It is also pointed out that the Forum below has not considered the direction contained in the remand order with respect to the contention taken by the opposite parties regarding the maintainability of the complaint as the complaint is barred by limitation. It is further submitted that there was no deficiency of service on the part of the opposite parties and the opposite parties rendered effective service in effecting repairs to the disputed vehicle. He also pointed out the involvement of the vehicle in the motor vehicle accident and theft of the vehicle on 06-08-2000 and subsequent recovery of the stolen vehicle by the police. Thus, the appellant/first opposite party prayed for setting aside the impugned order passed by the Forum below.
6. The learned Counsel for the appellant/second opposite party (in Appeal No. 449/2009) submitted his arguments based on the grounds urged in the aforesaid appeal memorandum and pointed out that the Forum below has not applied its mind in passing the impugned order and that the present order is only a reproduction of the earlier order dated 02-06-2003. He also challenged the correctness of C1 Commission report filed by the expert Commissioner. It is further submitted that the opposite parties had rendered service as per the warranty conditions and that the vehicle had covered a distance of more than 50000 Kms within a period of two and half years and that the same is a clear proof that the said vehicle had no manufacturing defect as alleged by the complainant. Thus, the appellant/second opposite party also prayed for setting aside the impugned order passed by the Forum below and to dismiss the complaint in OP No. 98/2002. On the other hand, the learned Counsel for the first respondent/complainant supported the impugned order passed by the Forum below. He much relied on C1 Commission report and submitted that the Forum below has rightly relied on C1 Commission report. He argued for the position that there was deficiency of service and unfair trade practice on the part of the opposite parties in effecting sale of a defective vehicle to the complainant and that by the aforesaid deficiency of service and unfair trade practice, the complainant suffered mental agony and inconveniences. Thus, the first respondent/complainant prayed for dismissal of both the appeals.
7. The common points that arise for consideration in these two appeals are as follows:
1. Whether the complaint in OP 98/2002 was barred by limitation?
2. Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties 1 and 2 in effecting sale of Maruthi Zen Diesel Car to the complainant on 15-09-1999?
3. Whether the Forum below can be justified in relying on C1 Commission report filed by the expert Commissioner who was deputed from the Forum below?
4. Whether the Forum below can be justified in ordering refund of half of the purchase price of the vehicle amounting to Rs.2,24,311/- with a compensation of Rs. 10,000/- and costs of Rs. 5,000/-?
5. Is there any sustainable ground to interfere with the impugned order dated 15-04-2009 passed by CDRF, Thiruvananthapuram in OP No. 98/2002?
For the sake of convenience, we will refer the parties to these appeals according to their rank and status before the Forum below in OP No. 98/2002.
8. Point No. 1: The complainant purchased the Maruti Diesel Zen Motor Car from the opposite parties on 15-09-1999. Admittedly, the said motorcar was having warranty for a period of one year or 20000 kms whichever is earlier. It is to be noted that on 15-09-2000 the said vehicle had not covered a distance of 20000 kms. Thus, the said motorcar was having the warranty up to 15-09-2000. The case of the complainant is that the said Maruti Zen Car manufactured by the first opposite party and sold to the complainant through the second opposite party was having manufacturing defect and so the complaint is filed to get the vehicle replaced or to get the price of the vehicle refunded. The complaint in OP No. 98/2002 was filed on 21-03-2002. It can be seen that the aforesaid complaint was filed within two years from the date of expiry of the warranty period. Thus, it can be concluded that the complaint in OP No.98/2002 was filed within the stipulated period prescribed by Section 24 A of the Consumer Protection Act, 1986.
9. The complainant had sent a notice dated 26-10-1999 alleging manufacturing defect in the said vehicle and also requesting for refund of the excess price collected from the complainant in the light of the price of the vehicle reduced by the opposite parties from Rs. 4.45 lakhs to 3.91 lakhs. It is also to be noted that the complainant had also issued another notice dated 10-02-2002 requesting the opposite parties to cure the defects in the said Maruti Diesel Zen Car which was purchased by the complainant on 15-09-1999. Acceptance of the aforesaid two notices is admitted by the opposite parties. Ext.P5 and P6 are the reply letters issued by the first opposite party Maruti Udyog Ltd. to the aforesaid notices issued by the complainant. In P6 notice dated 17-02-2000, the first opposite party requested the complainant to wait for the arrival of the representative of the first opposite party. It was also stated in P6 reply letter that necessary assistance will be rendered by the service representative of the first opposite party. This P6 reply would give an indication that the complainant was waiting for the remedial measures which were offered by the first opposite party. Thus, in all respects it can be concluded that OP 98/02 filed on 21-03-2002 was within the period of limitation. So, it can be concluded that the Forum below had the jurisdiction to entertain the complaint in OP No. 98/02.
10. The opposite parties 1 and 2 had raised the contention in their respective written version stating that the complaint in OP No.98/2002 is barred by limitation. The Forum below which passed the first order on 02-06-2003 failed to consider the aforesaid contention regarding bar of limitation. This State Commission by the remand order dated 07-08-2007 in Appeal Nos. 655/03, 665/03 & 681/03 directed the Forum below to consider the contention raised by the first opposite party regarding the bar of limitation u/s 24 A of the CP Act, 1986. But, in the present impugned order dated 15-04-2009 there is no finding regarding the question of limitation u/s 24 A of the CP Act, 1986. It has been held by the Hon'ble Supreme Court that limitation period prescribed u/s 24 A of the CP Act, 1986 is peremptory in nature and entertaining a complaint which is barred by limitation is illegality [(2009) 3 CPR 784 (SC)]. It was also held that Section 24 A casts a duty on the Consumer Forums admitting a complaint [(2006) I SCC 164 Huda Vs. B.K. Sood]. As early as in the year 2003 the Hon'ble Supreme Court in Union of India Vs British India Corporation Ltd. and others (2003) 9 SCC 50 has held that question of limitation is a mandate to the Forum, irrespective of the fact whether it was raised or not. Thus, it can be concluded that the Forum below committed a mistake by omitting to consider the said issue regarding bar of limitation u/s 24 A of the CP Act, 1986. But that lacuna or omission on the part of the Forum below can be rectified by considering the very same issue regarding question of limitation by this State Commission. The parties will be facing inconvenience by again remanding the matter to the Forum below to consider the very same issue which the Forum below omitted to consider and answer. Hence this point is answered accordingly.
11. Point Nos. 2 to 5: The case of the complainant is that the Maruti Diesel Zen Car purchased by him from the opposite parties was having manufacturing defects. On the other hand, the opposite parties 1 and 2 denied the alleged manufacturing defects. An expert Commissioner was deputed by the Forum below. The aforesaid expert Commission was taken at the instance of the complainant. The Forum below appointed Thomas A. Vadakkan as the expert Commissioner. Admittedly, the expert has been working as an Automobile Engineer in Kerala Automobiles. He is an experienced Automobile Engineer in that particular field. He filed Ext.C1 report dated 15-10-2002. It is true that the opposite parties 1 and 2 filed objection to C1 Commission report questioning correctness of the opinion or finding given by the expert Commissioner. This State Commission while remanding the matter to the Forum below directed the opposite parties to adduce evidence in support of their respective cases. They were given the opportunity to take necessary steps in examining the expert Commissioner who submitted C1 Commission report. But unfortunately, the opposite parties did not avail the aforesaid opportunity. The proceedings of the Forum below would also make it clear that the matter was once suo-moto reopened by the Forum below for the purpose of affording an opportunity to the opposite parties to get the expert Commissioner examined in the case. But, even then the opposite parties failed to take necessary steps for examining the expert Commissioner. Thus, there is no acceptable evidence to discard the findings entered in C1 expert report.
12. Another pertinent aspect to be noted at this juncture is the absence of the opposite parties at the time of examination of the vehicle by the expert Commissioner. It is also to be noted that prior intimation was given to the opposite parties regarding the time and date of examination of the disputed vehicle by the expert Commissioner. Even after getting notice of inspection, the opposite parties were not prepared to participate in the said inspection of the vehicle by the expert Commissioner. Thus, the opinion given by the expert Commissioner can be relied on. It is true that the Forum below has placed reliance on the findings made by the expert Commissioner in his C1 expert report.
13. The expert Commissioner has categorically reported in Para 23 of C1 report that fuel injection pump fitted to the vehicle was having manufacturing defect and that the second opposite party rectified the aforesaid major manufacturing defect. It is specifically stated that the said defect was rectified by the dealer, by reclaiming the fuel injection pump. It is also reported by the expert that the fuel injection pump is the heart of a diesel engine and any mismatch in fuel injection pump will create low pick up, high emission, power loss etc. According to the expert the defect in the fuel injection pump was a major manufacturing defect. Thus, it can be concluded that the opposite parties 1and 2 effected sale of a vehicle with defective fuel injection pump. The aforesaid action on the part of the first opposite party/manufacturer and the second opposite party/dealer would amount to deficiency of service. It is true that the opposite parties rectified that manufacturing defect during the warranty period.
14. The expert Commissioner has also noticed that the disputed vehicle was provided with defective water pump/regulatory assembly/S/A rectifier. He also noticed that change of those parts within a short span can be treated as major points to be noted. The expert Commissioner had also occasion to peruse the job cards and the details of the work done on the said vehicle. Those details are reported in Para 29 of C1 report. The fact that the expert Commissioner verified the job cards and the works done by the dealer and service provider of the first opposite party had not been disputed by the opposite party. These circumstances would justify the allegation of the complainant that the opposite parties supplied a defective Zen Diesel Car.
15. The expert Commissioner has also detected crack on the front left side of the chassis and the said crack was seen welded with a plate for reinforcement. According to the expert the aforesaid crack was developed due to vibration/impact load/inadequate design of the chassis. At this juncture, it is to be noted that the said vehicle met with a major accident by colliding with a KSRTC bus. The definite case of the opposite parties is that the said crack developed due to the said collision with KSRTC bus. It is to be noted that the said accident occurred on 04-02-2000 and that the vehicle was repaired at the workshop of the second opposite party. The complainant had also obtained the insurance claim with respect to the loss sustained by the complainant. But there is no case for the second opposite party that in the said accident there was a crack developed. It is true that the job card would show that there was a bent to the chassis. But, there is no case for the second opposite party that there was a crack on the chassis as a result of the accident which occurred on 04-02-2000. Ext.P11 cash bill dated 20-01-2003 issued by Nikhil Taj Maruti Authorized Service Station, Attingal would show that the broken chassis was welded on 20-01-2003. This P11 document would give an indication that the chassis was broken subsequent to the accident. This circumstance would support the finding of the expert Commissioner that the crack was developed due to the engine vibration etc. It is further to be noted that the expert had the occasion to evaluate the performance of the vehicle by driving the same. The finding of the expert Commissioner that there was unusual engine vibration is to be believed and accepted. There is no reason or ground to doubt the aforesaid finding made by the expert. It is also to be noted that the expert Commissioner can only be treated as an independent expert and what are all reported by the expert can be treated as his findings based on his inspection. The expert in Para 21 and 22 of his report has also reported about the functioning of the original fuel injection pump and the reason stated by the Customer Care Manager of the second opposite party about the functioning of the fuel injection pump originally fitted to the Maruti Zen Diesel Car. But, it is to be noted that all those defects with respect to the fuel injection pipe were rectified by the second opposite party/dealer by replacing the same.
16. The first opposite party has also filed proof affidavit in support of his case. In the appeal memorandum the appellant/first opposite party has given details of the warranty provided for the vehicle. It is to be noted that no such warranty condition was highlighted by the first opposite party before the Forum below. Anyhow, it can be seen that as per the warranty, the opposite parties 1 and 2 are liable to replace the defective parts. So, by replacing the defective fuel injection pump, the opposite parties have performed the warranty condition with respect to the working of the fuel injection pump.
17. The opposite parties have also got a case that the vehicle was stolen by thieves and for some time the vehicle was in the possession of the thieves and they used the vehicle in an improper way. To substantiate the aforesaid case of the opposite parties they relied on B1 copy of FIR dated 07-08-2000. The aforesaid FIR was lodged by Attingal police based on the first information statement given by the complainant. The theft of the vehicle occurred on 06-08-2000. But there is nothing on record to show that due to the use of the vehicle by the thieves anything happened to the vehicle causing any defects. The mere fact that the vehicle was in the possession of the thieves for some time cannot be taken as a ground to hold that the defects in the vehicle occurred due to the use of the vehicle by the thieves. It is also to be noted that after recovery of the vehicle from the thieves it has been maintaining at the workshop of the second opposite party. At the relevant time the second opposite party had no case that the problems developed in the vehicle on account of the improper use of the vehicle after 06-08-2000. So, the aforesaid contention taken by the opposite parties cannot be accepted as such.
18. The Forum below can be justified in relying in C1 expert report. An analysis of C1 expert report would show that the Maruti Zen Car supplied to the complainant was having so many problems including manufacturing defect and the aforesaid problems or defects caused much inconvenience, discomfort to the complainant. The complainant who purchased a brand new vehicle expected a smooth and satisfactory functioning of the vehicle. But, the functioning of the brand new vehicle supplied to the complainant was not satisfactory. The aforesaid mal-functioning of the vehicle can be seen from the job cards available on record. The expert Commissioner had also occasion to peruse those job cards. So, it can very safely be concluded that there was no smooth functioning of the vehicle and mal-functioning of the vehicle caused much hardship, inconvenience and discomfort to the complainant. It is true that the opposite parties attended the defects in the vehicle; but the opposite parties were not in a position to cure the defects perfectly. The materials on record would show that the vehicle has been developing one problem or another and thereby creating problems for the complainant in using the brand new vehicle comfortably. So, the opposite parties could be found deficient in rendering service to the complainant by selling a defective vehicle.
19. C1 expert report would show that the vehicle was having the mileage of 19 kms/liter. So, the mileage available to the said vehicle cannot be treated as low mileage. In that respect the vehicle was functioning satisfactorily. But in other respects, the vehicle was not having a smooth functioning expected from a brand new vehicle. It is also to be noted that the vehicle had covered a distance of more than 50000 kms by the lapse of two and half years. This would give a clear indication that the disputed vehicle has been used by the complainant for his purposes. It may be correct to say that the extensive use of the vehicle was with inconvenience and discomforts. Considering the fact that the complainant used the vehicle for covering a distance of 50000 kms within the span of 2 years would create doubt about the case of the complainant that he could not use the vehicle for his purpose. Considering all those facts, it can be concluded that the Forum below cannot be justified in ordering refund of 50% of the purchase price of the vehicle. It is to be noted that the complainant was also permitted to retain the vehicle. In addition to the refund of Rs. 2,24,311/- the opposite parties are also directed to pay compensation of Rs. 10,000/-. It has been held by the Hon'ble Supreme Court that compensation is to be awarded by considering the user of the vehicle. It is held that proportionate deduction towards use of vehicle is also to be effected while awarding compensation for defiency of service in effecting sale of a vehicle [AIR 1997 (SC) 2774 Tata Engineering and Loco Motive Company Ltd and another Vs. Gajanam Y Mandrekar]. Thus, it can be concluded that the order passed by the Forum below awarding refund of Rs. 2,24,311/- with a further compensation of Rs. 10,000/- to the complainant is unsustainable. Considering all the relevant aspects of the case, this State Commission is of the view that a compensation of Rs. 1,00,000/- is sufficient to meet the ends of justice. It is to be noted that there will be an element of guesswork in awarding compensation for deficiency of service in a matter like the one on hand. It is further to be noted that the complainant has been using the vehicle from 15-09-1999 onwards. For the inconvenience and discomforts suffered by the complainant a compensation of Rs. 1lakh is sufficient. The cost of Rs. 5,000/- ordered by the Forum below can be treated as reasonable and the same is upheld. The aforesaid compensation of Rs. 1,00,000/- will be carry interest at the rate of 9% per annum from the date of the impugned order dated 15-04-2009 till the date of realization. These points are answered accordingly.
In the result, these two appeals are allowed partly. The impugned order dated 15-04-2009 passed by CDRF, Thiruvananthapuram in OP No. 98/2002 is modified. Thereby the order passed by the Forum below directing refund of Rs. 2,24,311/- with compensation of Rs. 10,000/- is modified and reduced to Rs. 1,00,000/- with costs of Rs. 5,000/-. The compensation amount of Rs. 1,00,000/- will be carry interest at the rate of 9% per annum from 15-04-2009 (the date of the impugned order) till realization. The appellants/opposite parties 1 and 2 are made jointly and severally liable to pay the decree debt due to the first respondent/complainant.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
CHANDRA MOHAN NAIR: MEMBER
Sr
[ Sri.M.V.VISWANATHAN]
PRESIDING MEMBER