State Consumer Disputes Redressal Commission
M/S Marikar (Motors) Limited, vs Mr.P.R.Balakrishna Pillai, on 10 September, 2008
.
CDRC, Sisuvihar Lane, Sasthamangalam.P.O, Trivandrum-10
Appeal(A) No. 399/2002
M/s.Marikar (Motors) Ltd
Marikar Industries
The Manager
...........Appellant(s)
Vs.
P.R.Balakrishna Pillai
M/s.Hindustan Motors Ltd
...........Respondent(s)
BEFORE:
1. JUSTICE SHRI.K.R.UDAYABHANU
2. SMT.VALSALA SARNGADHARAN
Complainant(s)/Appellant(s):
1. M/s.Marikar (Motors) Ltd
2. Marikar Industries
3. The Manager
OppositeParty/Respondent(s):
1. P.R.Balakrishna Pillai
2. M/s.Hindustan Motors Ltd
For the Appellant :
1. K.L.Narasimhan
2.
3.
For the Respondent :
1. Chirayinkil.M.K.Gopinathan Nair
2.
ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU, THIRUVANANTHAPUTAM Appeal 399/02 and Appeal 425/02 JUDGMENT DATED: 10.9.08 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.K.ABDULLA SONA : MEMBER Appeal No.399/02
1. M/s Marikar (Motors) Limited, Marikar Builidng, PB.No.9, : APPELLANTS M.G.Road, Thiruvananthapuram.
2. The Manager, Marikar(Motors) Limited, P.B.No.169, K.K.Road, Kottayam.
3. Marikar Industries, Automobile Workshop.
Vettipuram Road, Pathanamthitta.
(By Adv.Narayan.R)
1. Mr.P.R.Balakrishna Pillai, : RESPONDENTS Rema Sadanam, Ezhumattoor.
(By Adv.Chirayinkil M.K.Gopinathan Nair)
2. M/s Hindustan Motors Ltd., No.9/1. R.N.Mukherjee Road, Calcktta.
(By Adv.G.S.Kalkura) Appeal No.425/021.
The Managing Director, Hindustan Motors Ltd., : APPELLANT P.N.Mukherjee Road, P.O.Hind Motors, Hoogly District, West Bengal. (By Adv.G.S.Kalkura) Vs. 1. Mr.P.R.Balakrishna Pillai Rema Sadanam, Ezhumattoor. (By Adv.Chirayinkil M.K.Gopinathan Nair) 2. M/s Marikar (Motors) Limited, Marikar Builidng, PB.No.9, : RESPONDENTS M.G.Road, Thiruvananthapuram. 3. The Manager, Marikar(Motors) Limited, P.B.No.169, K.K.Road, Kottayam. 4. M/s Marikar Industries, Automobile Workshop. Vettipuram Road, Pathanamthitta. (By Adv.Maimoona B.Marikar counsel for R2 to R4) JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellants in Appeal 399/02 are the opposite parties 2 to 4, the dealers and service providers and in the appeal 425/02 the appellant is the Manufacturer/1st opposite party in OP 403/2000 in the file of CDRF, Pathanamthitta. The appellants are under orders to replace the gearbox of the Ambassador Diesel Car purchased by the complainant from the respondents and also to correct the wheel alignment of the above vehicle; and also to pay a sum of Rs.5000/- as compensation for mental agony and a sum of Rs.2000/- as cost of proceedings. 2. It is the case of the complainant that he purchased the Diesel Ambassador Car from the 3rd opposite party dealer on 15.3.2000 for a sum of Rs.3,74,000/- obtaining financial assistance from the SBT and on hypothecating the car to the Bank. The complainant has to pay monthly instalments. At the time of purchase itself the odometer reading was 2600Kms. The vehicle was purchased for plying as tourist car. On plying it was found that the car is not having pickup. There was sudden decrease in oil level in the engine and defect in front tyre alignment. Car is having warranty for 16000Kms or to a period of 12 months whichever is earlier. Front tyres began to wear irregularly also. When the car was produced for the 1st service certain repairs were done. Thereafter also the same defects recurred. On 19.5.2000 the car was entrusted for 2nd free service at odometer reading of 7596K.Ms. There was a crack on the engine cover which was repaired; and also the wheel alignment. Even thereafter the complaints continued. As directed by the 3rd opposite party the car was produced four times at the 3rd opposite party's workshop at Kottayam. The engineers from the 2nd opposite party's workshop, Thiruvananthapuram, Head Office checked the car. The engine oil level was decreasing every time. On 6.7.2000 the car was produced for the 3rd free service and repairs were done. Thereafter also the defects continued. After the 3rd service the vehicle was taken to the 3rd opposite party for three times. The 3rd opposite party advised the complainant to produce the vehicle at the 4th opposite party workshop. The vehicle was produced at the workshop on 4.9.2000. It was returned after engine overhauling and steering box repairs. The odometer reading then was 15590. It was premature engine overhauling. The vehicle was purchased for earning the livelihood of his unemployed son. Evidently there were manufacturing defects to the vehicle. Several times the complainant approached the 3rd opposite party. Even after the engine
overhauling the defects continued. There was a total breakdown on 1.12.2000. Thereafter the car is kept stationery. He has claimed the purchase price of the car, ie. A sum of Rs.3,74,000 + Rs.20,000/- ie the expenses incurred for repairs and Rs.1,00,000/- as compensation for mental agony and loss and Rs.5000/- as cost.
3. The opposite parties 2,3 and 4 filed a joint version denying the allegations. It is alleged that the decrease in oil level and low pickup was never reported to the complainant. There was no crack on the engine cover and there was no such complaint. It is admitted that there was leakage of oil. The complainant was directed to produce the car before the 4th opposite party for rectifying the same. There after there was no complaint. There was no engine overhauling on 4.9.2000. It is contended that allegations are false. The complainant has not reported as to the total break down as alleged. Malafides is suspected.
4. The 1st opposite party/manufacturer has also filed version disputing the jurisdiction of the Forum alleging that the vehicle was purchased for a commercial purpose. It is alleged that the claims are false and baseless. It is also contended that there is no privity of contract between the complainant and the 1st opposite party and that the dealer is conducting the business of buying and selling of the cars independently. It is also alleged that the car was extensively used. During the warranty period the minor defects brought to the notice were rectified. The problem in wheel alignment was caused on account of driving of the car on uneven and bad roads and without preventive maintenance . It is stated that the car had covered 15590 kms within a short span at around 5 ½ months from the date of purchase. At the time of filing of the complaint the vehicle would have covered many a 1000 Kms. The allegation of material manufacturing defects is strongly refuted.
5. The evidence adduced consisted of the testimony of PWs 1 and 2; DWs 1 and 2; Exts.P1 to P4, R1 to R4 and C1.
6. PW1 the son of the complainant has testified in support of the averments in the complaint. PW2 is the Commissioner who filed Ext.C1 report of inspection of the vehicle. DW1 is the Territory Manager(service) of the 1st opposite party Manufacturer and DW2 is the Manager of the 4th opposite party workshop who has testified on behalf of 2nd and 3rd opposite party also ie. the dealer.
7. The Commissioner inspected the vehicle on 15.6.01. He is the Depot Engineer of the KSRTC. The inspection was conducted in the presence of the complainant and officials of the 2nd and 4th opposite parties. The speedometer reading noted is 27731KMs. The Commissioner has noted that an unusual sound is produced from the clutch on depressing the clutch pedal and engine started. He has noted that the whole clutch assembly and its holder is to be replaced. It is also noted that the slow speed of the engine is very high. Heavy "blow bye" ie leak of compressed airfuel mixture through the piston rings and in turn from the engine was noticed during increased speed of the engine. The exhaust and inlet manifolds and the exhaust pipe were seen wet and oily with unburned engine oil and fuel. The engine oil pressure on the pressure gauge was seen fluctuating during all speeds of the engine. According to him the same indicated that the cylinder liners, pistons, and piston rings are all worn out. The main bearings and the connecting rod bearings are also worn out. Engine was seen leaking from the valve door and from the top of the oil filter. He has suggested that the engine required a major overhaul. It is also noted that the tyres were seen worn out in an even manner. The steel belts provided inside the tyre casing were seen lifted up which showed that the suspension(front) is defective. The front suspension needed complete overhaul or replacement. The cost of repairs of the engine, clutch and suspension are estimated at Rs.30000/-, 5000/- and 9,500/- respectively. It is also noted that the complaints of the petitioner as to the excess consumption of lubricating oil, uneven tyre wear, defective clutch and abnormal speed of the engine at slow speed were found to be true. The Commissioner when examined has stated that the vehicle is having manufacturing defect. In the cross examination he has stated that it appeared that atleast for 5 months the vehicle is lying stationery. He has also stated in the cross examination that it would take atleast 1 ½ lakhs of KMs run to have the problems of clutch disk. The vehicle that has run only 2000 KMs should never have such problems.
8. According to DWs 1 and 2 there were no defects during the free service period or warranty period and that the problems developed on account of driving of the vehicle in uneven terrain and extensive plying of the vehicle. We find that in the job card Ext.P2 dated 4.9.2000 during the free service period, the complaints of engine oil consumption and steering sound is mentioned. In Ext.P4 with respect to 2nd free service, problems of front suspension, wheel alignment, engine oil leak etc. are noted. In Ext.R4 with respect to 3rd free service the problem of wheel alignment has been checked and rectified. We find that the vehicle has been purchased on 15.3.2000 and the complaint has been filed on 14.12.2000. The speedometer reading on 15.6.2000 is only 27231 KMs. The same cannot be said to be excessive so far as a tourist taxi is concerned for a period of one year and three months. In the circumstance we find that the finding of the Forum that the vehicle was having manufacturing defects cannot be found fault with.
9. The contention that the dealer is not liable cannot be upheld in view of the ratio of the decision in John Philip Vs. Primier Auto Mobiles Ltd 2004 (2) SCC 278.
10. The Forum had ordered the opposite parties to replace the engine, gear box and also execute the repair of the wheel alignment. The order of the Forum is dated 31.1.02. The opposite parties have preferred to file the appeal. Since the date of filing the complaint 8 years of elapsed. Hence the question of repairing of vehicle right now doesn't arise. The repair cost suggested by the Commissioner works out to about Rs.50,000/-. In the cirumstances the opposite parties/appellants are directed to pay a sum of Rs.50000/- as compensation to the complainant with interest at 12% per annum from the date of the order of the Forum ie 31.1.02. The amount shall be paid within three months from the date of receipt of this order failing which the interest would be at the rate 18% from today. The order of the Forum is modified accordingly. The order as to costs and compensation is sustained. The appeal is disposed of accordingly.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.K.ABDULLA SONA : MEMBER ...................... JUSTICE SHRI.K.R.UDAYABHANU ...................... SMT.VALSALA SARNGADHARAN