National Consumer Disputes Redressal
R.Raja Rao, Mr. Arvind Kamath vs M/S. Mysore Auto Agencies & Anr. Mr. ... on 27 February, 2006
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION CIRCUIT BENCH, KARNATAKA AT BANGALORE FIRST APPEAL NO. 455 OF 1997 (From the order dated 26.9.1997 in Compl. No. 233 of 1993 of the State Commission, Karnataka) R. Raja Rao Appellant Versus M/s. Mysore Auto Agencies & Anr. Respondents BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER. For the Appellant : Mr. Arvind Kamath, Advocate. For the Respondent No.1 : Mr. Mahesh K.V., Advocate. For the Respondent No.2 : Mr. P.H.Ramalingam, Advocate. Dated 27th February, 2006 O R D E R M.B.SHAH, J. PRESIDENT If the frustrated (consumer) purchaser of a vehicle is forced to hand over the vehicle to the dealer/manufacturer on the ground that it is required to be repaired every now and then within a few days of its purchase, can it be said that he shall be deprived of refund of the amount spent by him for the purchase the vehicle? Obvious answer is the vehicle should be replaced or the amount should be refunded. Reason being, the defective vehicle would not give the satisfaction of a new vehicle. Further, that after purchase of the new car, if a person is required to visit garage for repair of the car regularly, it would be a frustrating and annoying experience. It is also rightly pointed out that various tempting advertisements are issued for marketing such cars and if the car is found to be defective requiring regular repairs, there would be total mental dissatisfaction of purchasing a new vehicle. Facts in short:
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Appellant is the Complainant before the State Commission.
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On 27.1.1993 he had purchased a Swaraj Mazda, a light commercial vehicle form the Opposite Party No.1, M/s. Mysore Auto Agencies and paid Rs.3,68,729/- towards its consideration.
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Warranty was for 12 months from the date of its purchase, i.e. 4.2.1993.
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The vehicle started giving troubles within a few days of its purchase.
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It was sent to the Opposite Party No.1 (dealer) for repairs for thrice, i.e. on 6.3.1993, 9.3.1993 and 15.3.1993.
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As there was no improvement, the Complainant had his vehicle checked up with M/s. K.H.T. Agencies Pvt. Ltd., Bangalore, who had opined that that the vehicle needed major repairs, because there was mixing of the engine oil with diesel oil and seizing of the nozzle. Again on 28.7.1993, the Complainant took the vehicle to the Opposite Party No.1 for necessary repairs.
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As there was no improvement, the Complainant had to deliver back the vehicle to the Opposite Party No.1 on 27.8.1993.
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Then, on 6.9.1993 a legal notice was issued to the Opposite Parties for replacing the defective vehicle with a new vehicle.
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By letter dated 18.9.1993 the Opposite Party No.1 refused to comply with the terms of the legal notice.
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Thereafter, the Appellant visited the office of the Opposite Parties for a number of times. As the vehicle had serious manufacturing defects he had issued a notice to the Opposite Parties to return the cost of the vehicle along with a sum of Rs.1 lakh for loss and damages, or supply a new vehicle with the said amount of Rs.1 lakh.
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The Appellant further states that he had availed himself of loan facility from Corporation Bank of Mandya Brnach of Karnataka, for the purchase of the vehicle and he was liable to pay interest at the rate of 24.75% and the said bank was likely to initiate recovery proceedings.
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Hence the Appellant approached the State Commission by filing Complaint No. 233 of 1993.
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When the complaint was pending in the State Commission, Prof. Badrinath was appointed as a Commissioner for the inspection of the vehicle. He had conducted inspection on 25.7.1996 and submitted his report on 1.8.1996. He opined that if on test running the diesel oil and the engine oil are mixing, it will be a serious defect in the engine.
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The State Commission dismissed the complaint by order dated 26.9.1997.
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Hence, the Complainant has come in appeal before this Commission.
Defence of the O.P.No.1(Dealer)
1. The Complainant is not a self-employed transporter and he does not drive the vehicle.
2. Because of repeated requests made by the complainant with all its pleas, the company had shown sympathy and extended the warranty as a special case with a warning to him that he should not mix kerosene with diesel and not to overload the vehicle.
3. The vehicle would not have developed problem had it put to use, as per the conditions stipulated,.
4. Pistons, rings head, gasket though were worn out on account of misuse only, but in best interest of the customers, the opposite party replaced the same.
5. That the matter cannot be decided unless an expert opinion is sought from an independent authority or institution.
Defence of Opposite Party No.2 (Swaraz Mazda Ltd., the Manufacturer):
1. It is contended by the Opposite Party No.2 that the complainant, contrary to the instructions contained in the Swaraj Mazda Instruction Manual and Advice of the opposite parties, continued to use the vehicle for carrying jaggery of 5 tonnes weight. As per written instructions the vehicle should have been used to carry weight upto 3 3.5 tonnes.
2. The vehicle cannot be run effectively, if the appellant continues to mix diesel with kerosene oil.
The Commissioner appointed by the State Commission, in his report dated 1.8.96, has specifically mentioned about the use of adulterated diesel, and it resulted in emission of white smoke.
3. The complainant did not agree to change the tyres despite being advised to do so by the opposite parties, as the brakes could not function properly. The Commissioner in its report dated 1.8.96 has clearly noted that the tyres were worn out.
4. The complainant took the vehicle on 27.7.1993 for check up to M/s. KHT Agencies, authorised dealer of Respondent No.2. M/s. KHT Agencies required the complainant to change oil and filter which he declined. Therefore, the problems/defects, if any, of the vehicle could not be rectified on account of refusal by the complainant.
5. The opposite parties even offered to extend the warranty subject to the undertaking that the complainant would not overload the vehicle beyond the permissible limit. The complainant was not ready to desist from the past practice of overloading the vehicle and use of the adulterated diesel.
6. By the test run on 20th October, 1993 by the Service Engineer of the Opposite Party No.2 and the driver of the Opposite party No.1, it was shown to the satisfaction of the complainant that the vehicle was in perfect working condition. Even then the complainant refused to take back the vehicle.
7. That the complainant got his vehicle repaired thrice i.e. on 6.3.1993, 9.3.1993 and 15.3.1993 from the opposite party No.1 and when he was not satisfied he had got the vehicle checked up at another authorised service centre, namely, KHT Agencies Pvt. Ltd., authorised dealer of the opposite party No.2 .
M/s. KHT Agencies advised (Ex.C-6) the complainant that nozzle had seized and the diesel was mixing with engine oil and get the oil and filter changed. But, the Complainant refused to do so.
8 The Complainant continued to use the vehicle without rectifying the problems. Even on 28.7.1993 when the complainant came to the opposite party No.1, he did not complain of the problems as pointed out by M/s. KHT Agencies Ltd. and complained only regarding pumps (Ex.C-7). Ex.C-7 shows that the vehicle did not suffer from the problems which the complainant has complained of in the complainant. The defects were of minor in nature and could be rectified.
Findings:
From the facts stated above, it is apparent that the Appellant purchased the vehicle in January 27, 1993, and the warranty was for a period of 12 months, i.e. from 4.2.1993 (the date of taking the delivery).
It is the say of the Appellant that he had opted to purchase the vehicle only because of the assurance given by the Opposite Parties to the effect that their vehicle was the best in the market and would give trouble free services for a long time. However, the vehicle started giving troubles within a few days of its taking delivery. As it was not picking up speed and emitting smoke, it was required to be delivered to the Opposite Party No.1, (the dealer), for repairs. Even after the repair was done on 6.3.1993, 9.3.1993 the trouble persisted. Therefore, it was delivered to the Opposite Party No.1 on 15.3.1993, for further repairs. As the repair done on this occasion was also not upto the mark, the Complainant got some genuine doubt about the ability of the Opposite Party No.1, and to identify the exact defects in the vehicle and to do effective repairs, he got it checked at KHT Agencies Pvt. Ltd. who are also the authorised dealers of M/s. Swaraj Mazda Ltd. The repair order dated 27.7.1993 is as under:
Check excess white smoke.
Check excess Oil consumption and No Pickup.
Check diesel meter not working Check fuel stop motor cable On the said Repair Order, against the order for check excess white smoke there is an endorsement to the effect that On inspection it is observed one nozzle seized and diesel is mixed with engine oil. Customer refused to get the oils and filters changed. While smoke still persisting, even after the nozzles are serviced.
Again, the Complainant handed over the vehicle to the Opposite Party No.1 on 28.7.1993 for the fourth time, for carrying out the necessary repairs. Once again the vehicle was to be delivered to the Opposite Party No.1 for getting rectified the old problems on 27.8.1993, for the fifth time. The Repair Order is as under:
1. Check up engine not accelerating, low pick up, white smoke;
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Check up oil consumption/offing cable not releasing;
3. Engine oil mixed with diesel oil;
4. Replace diesel pipe;
5. Check up sockets not working;
6. Engine Bedding Bold Check up.
Thereafter, the legal notice was issued, reply was received and finally the Complainant delivered the possession of the said vehicle to the Opposite Party No.1 for repairs. It is undisputed that the Complainant had delivered the possession of the vehicle to the Opposite Party No.1 in the month of August, 1993.
Thereafter, the Petitioner filed the complaint on 8.11.1993 before the State Commission praying that the Opposite Parties be directed either to deliver a new vehicle which is free from any manufacturing defect or in the alternative to pay the sum of Rs.3,68,729/- being the cost of the defective vehicle purchased by the Complainant with interest as paid by the Complainant, compensation and also the loss of income. Admittedly, the vehicle was in the possession of the Opposite Party No.1 since August, 1993, within a period of six months from the date of purchase.
At the time of handing over of the possession of the vehicle to the dealer, as indicated by the meter reading, the vehicle had run 36,377 Kms.
The Appellant has relied upon the report of the Authorised Dealer who had inspected the vehicle on 21st March, 1993. It has mentioned that the jobs to be done are:
1. Diesel leakage near Automiser Pipe;
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Break dragging towards left clean break liner;
3. Exhaust break not working;
4. Dim & Dip switch not working;
5. Engine vibration while stopping.
Reports of the Commissioners:
I. Report of Dr.Badarinath, Commissioner:
Thereafter, the State Commission appointed Mr. D.R. Badarinath, Commissioner, who vide his report dated 1.8.1996, reported, inter alia, as under:
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Steering movement of the vehicle while operating the wheel found to be normal. But, actual condition could not be verified without running the vehicle. The vehicle could not run without the required documents which are reported to have been surrendered to the R.T.O.
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The original battery of the vehicle was replaced with another service battery. But, the dealer reported that since it was idle for 3 years it was dead and had fixed a separate battery for the purpose of inspection. However, it was taken back after my inspection.
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While staring the is idling smoke was not observed. It could not be tested without running on the road.
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The document of the vehicle is stated to have been surrendered to the R.T.O. Without running the vehicle on the road, I could not ascertain whether there is any problem of mixing diesel with engine oil. However, if it is found on test running that the diesel and engine oil are mixing, it will be a serious defect in the engine. The engine appears to have been opened and certain parts appear to have been replaced. The dealer also confirmed that certain parts such as cylinder, liner, piston rings, injection nozzle, etc. have been replaced.
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The speedometer in the vehicle showed the reading 320129-1 and in my opinion has been run extensively as can be seen from the bald rear tyres. However, the dealer said that the Speedometer had been stolen and he had replaced the same. He has not produced any evidence of his statement.
The aforesaid report leaves no doubt that the vehicle was used by the dealer because at the time when the Complainant delivered the vehicle to the dealer its speedometer showed 36,777 Kms. running of the vehicle while on the date of inspection on 1st August, 1996 the reading was 3,20,129-1, i.e. roughly more than 2,80,000 kms. Even the Commissioner who had inspected the vehicle specifically mentioned that it had run extensively. This also can be seen from the bald tyres. He has also opined that if it found on test running that the diesel and engine oil as mixing, it will be a serious defect in the engine. The engine appears to have been opened and certain parts appear to have been replaced. The dealer also confirmed that certain parts such as cylinder, liner, piston rings, injection nozzle, etc., have been replaced. This report leaves no doubt that the vehicle was used by the dealer by replacing certain parts of the engine. This would be beyond doubt that there was manufacturing defect.
II. Report of Automobile Association of Southern India:
Thereafter, there is a report dated 16.3.2000 by the Automobile Association of Southern India, which was obtained on the basis of the directions given by this Commission. This report, no doubt, is an ex-parte report, because the Complainant was not informed about the inspection. However, at the same time, the report reveals that the vehicle was road worthy by test driving, engine was smoothly running and everything was normal.
This would again reveal that after 1996, the vehicle was extensively repaired. This would mean that after the delivery of the vehicle to the dealer Opposite Party No.1 had extensively used the vehicle and repaired the same. This would not mean that at the time of purchase of the vehicle the same was not defective as pointed out above. On the contrary, dealers reports reveal that it was required to be brought for repairs within a few days of its purchase.
It is shameful that even the vehicle was defective. Respondents failed to acknowledge the defects. And, thereafter, Opposite Party No.1 used the vehicle for years together without acknowledging the defects and litigating the matter for years together. The Appellant suffered not only monetary loss but mental agony all throughout. It is regrettable that we have developed a tendency not to replace the defective vehicles.
In this view of the matter, this appeal is allowed. The impugned order passed by the State Commission is set aside. The Respondents are jointly and severally liable to refund the amount of Rs.3,68,729/- with interest at the rate of 12% p.a. from 1.2.1993 till its payment. We are not inclined to direct the Respondent to pay interest at the rate of 24% p.a. as claimed on the ground that the Bank was charging at that rate. Hence, the Respondents are directed to refund the amount of Rs.3,68,729/-, within a period of eight weeks from today, with interest at the rate of 12% p.a. from the date of its purchase i.e. 1.2.1993 till its payment. The Respondents shall also pay costs assessed at Rs.10,000/- to the Complainant.
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J. (M.B.SHAH) PRESIDENT Sd/-
(RAJYALAKSHMI RAO) MEMBER