Ana Paula Sanches
R/o Flat No. C-G/8,
Ground Floor, Block “C”,
“Almeida, Residency”,
Mapusa, Bardez, Goa. ........................Complainant


V

Maruti Udyog Pvt. Ltd., Co.,
Represented by its General Manager
having office at 11th Floor,,
Jeevan Prakash 25, Kasturba Gandhi Marg,
New Delhi-110001. ..........................Opposite Party-1


M/s Chowgule Industries Ltd.,
Authorized Maruti dealer having,
Office at Campal, Panaji, Goa. .........................Opposite Party-2



Order dated: - 10/03/2009

O R D E R

(Per Smt. Shubhalaxmi U.P. Raikar, President)



Facts of the Complainant:-



1.The Complainant states that she had purchased on 08/06/2002 a New Car Maruti Zen Lxi Vehicle bearing Registration No. R-3340 on full payment of total consideration of Rs.3,89,679/- from the Opposite Party-2 as a Dealer of Opposite Party-1.



2.Complainant states that after 10 days of purchasing the said car she had noticed several defects and immediately informed the Dealer i.e. Opposite Party-2 . The following defects read as under:-



a.The said car had 160 kms on the desk board when the Complainant picked up the vehicle from the showroom of Opposite Party-2, whereas normal average of new car mileage is about 50 to 60 kms.



b.Complainant found noted that rust water seeping from the rear door of the car.



3.Complainant states that during the first service of the door of the said car could not be changed due to inavailability of a door and the said car had to be driven to Panaji from Mapusa on several occasion at the cost of the Complainant.



4.Inspite of several visits given by the Complainant at Opposite Parties service station the Opposite Party personnel/mechanics could not fit the said replaced door properly and the said replaced door remained in the same position in as such as it does not fit properly till now and hence there is a permanent defect left in the new car.



5.Complainant states that the time of second service more areas of rust near the fuel tank filling pipe was found and was not touched up properly and just a spot of paint was applied and vehicle was returned without proper work.



6.Complainant states that inspite of several requests the Opposite Parties are not rectifying the said defective car he had to sent a legal notice through his lawyer on 20/12/2002 to the Opposite Party-1 & 2 which was received by the Opposite party-1 and 2.



7.Complainant states that on receipt of the said notice the Opposite party-1 and 2 sent a reply dated 06/01/2003 through Assistant Engineer Shri Vikas Jaiswal stating that they have advised their Dealer i.e. Opposite Party-2 to look after the Complaint.



8.Complainant prays for replace the said defective car by delivery of New Car and other costs.





Opposite Party 1 & 2 filed its reply as under:-

1.The complainant was sold vehicle with a warranty for a certain period or kilometers with three free services subject to certain terms, conditions and limitations as set out in the owner’s manual. The complainant sent his vehicle for the free service on 25.06.2002 at 947 Kms. The complainant did not point any defect in the vehicle which could be construed as a manufacturing defect. The Respondent No.2 checked up the AC cooling and carried out the first service to the entire satisfaction of the complainant. No defects were pointed out in the Vehicle on 25.06.2002 which could affect the performance of the vehicle and as there was no deficiency as alleged. The vehicle was delivered after pre-delivery inspection in perfect roadworthy conditions.

2.The alleged defect cannot be said as manufacturing defect. The Opposite Party No.2 promptly inspected the problem and observed that the same did not occur due to any manufacturing process but was a result of heavy rain water seeping from the door panel. Opposite Party No.2 informed the complainant accordingly and agreed to replace the door as a matter of goodwill and good gesture. The door was replaced subsequently by the Opposite Party No.2 in the presence of the complainant. Hence there is no deficiency on part of Opposite Parties.

3.During second servicing, Service Engineer inspected the vehicle and recommended the paint touch up as advised to the entire satisfaction of the complainant.

4.Complainant bought the vehicle on 8.6.02 and the vehicle has completed more than 5,800 kms. Within three and half months which shows the extensive use and satisfaction of the complainant with the performance of the vehicle.

5.There is no deficiency on part of opposite parties and hence complainant is not entitled for any relief as prayed for and as such opposite party prays for dismissal of complaint.







Our findings and observations read as under:-

FINDINGS AND OBSERVATIONS

1.Car was purchased on 08/06/2002. No dispute on payment. But as per satisfaction note dated 28/09/2002 we find that various defects are rectified i.e. within 3 months.

2.Main dispute is on rusting of car doors which occurred soon after purchase i.e. in September 2002 as per observations done and detail report on record dated 26/02/2003 issued by one Shri Amish Shirsat and counter signed by Complainant with its report we find that no rusting was observed. Alignment of front and rear door was found to be acceptable by Complainant no noise in door’s on taking test drive. On these various observations the Complainant has further noticed twelve observations. The Opposite Party-1 has not made any attempts to solve these problems noted in observations. However to support these observations there is no expert evidence on record.

3.During second servicing we find that most deficiencies rectified such as new rust spots found which are to be matched and painted doors are kept under observation. These various Reports/Job Sheets/Cash Memo of Opposite Party dated 28/09/2002 issued by Shri Sameer reveals that within warranty period these defects were existing on vehicle.

4.In Written version of Opposite Party-2 at para 3 it is admitted that the problem of rusting occurred due to heavy rain water seeping from door Panel. Here a question is posed to our mind that why door panels of New car should have see page problems and if its considered by Opposite Party-2 as minor defect then why it should be replaced with new door? Though the reason for replacement is given as “matter of goodwill and good gesture”. These facts of paint touch up and replacement are also admitted by Opposite Party-1 in its Written Versions at para 15 similarly Shri Alvin D’osuza, Manager of Opposite Party-2 in his Affidavit at para 4 has admitted terming it as rust type small 2 lines. We do not accept the contention that “because Complainant was insisting the door was replaced” for such small rust type 2 lines.

5.The persons who have filed Affidavit on behalf of Opposite Party-1 &2 both are non technical persons. Besides denials there are no specific pleadings and there are no documents produced to support defence by Opposite Party-1 & 2

6.The onus of proof lies on Opposite Party to prove with expert evidence to show that there was no manufacturing defect in car within warranty period. We do not find such material on the basis of which pleadings in defenc can be considered.

7.Hence we are of the opinion that defects occurred during the warranty period such as rusting/noise in car etc. as alleged by Complainant.

8.These defects remained unattended even after 07/08/2003.

9.We find that the vehicle was delivered initially with manufacturing defect we apprehend that i.e. low quality of tin metal used for door’s and other parts of car which has resulted in rusting The fitting of new door also was found defective giving noise.



Hence we are inclined to pass the following:-

ORDER


1.We feel that Complainant is entitled for refund of Rs.3,89,679/- and Opposite Party-1 is to refund the same amount. The Complainant to hand over the vehicle to Opposite Party-1 in as and where condition.

2.Opposite Party-2 is discharged from proceedings.

3.Cost of Rs. 10,000/- to the Complainant.

4.Order to be complied within 30 days from the receipt of this order.

Shri Mohan Nair
R/o 5/T2, Dukle Residency ………………….Complainant
St. Inez, P.O. Caranzalem,
Goa 403 002.

V

M/s Sai Service Station Ltd.,
36/1, Alto Porvorim,
Bardez-Goa 403 521. .........………...…..Opposite Party-1

General Manager,
Maruti Udyog Ltd.,
Gurgaon-122015. .........………...…..Opposite Party-2


Date: - 06/11/2008


O R D E R

(Per Smt. Shubhalaxmi U.P.Raikar, President)

Facts of the Complaint are as under:-

1.Complainant purchased a Maruti Omni (Van) from M/s Sai Service Station on 19/08/2004. The said vehicle was a Tourist Taxi, bearing Regn.No.GA-01-T-6249. This Taxi was the only source of income for him.

2.Within three months of purchase of the said vehicle the body of the vehicle started rusting as such complainant approached the Opposite Party. Polish work was done by the Opposite Party.

3.Even after polishing the vehicle continued rusting as the tin material used for it was of substandard quality and defective. Again the said defect was brought to the notice of Opposite Party where minor touch up painting work was carried out on 12/04/2005.

4.Complainant insisted for the replacement o the body but Opposite Party failed to do so.

5.Thereafter body still continued rusting and some holes started appearing on the body. On 11/06/2006 the said problem was brought to the notice of the Opposite Party with a request for permanent solution. Again some touch up painting work was done.

6.Touch up work was of no use and vehicle continued to rust with holes on the body.

7.Vehicle was the only source of income to the complainant and hence complainant was put in a financial loss due to deficiency in service by the Opposite Party.

8.Hence complainant has prayed for replacement of the body of the vehicle and compensation of Rs.1,000/- per day till the date of full and final settlement as the said vehicle was the only source of income.


Opposite Party No.1 & 2 filed their Written Version read as under:-

1. Opposite Party No.1 states as under:-

a.The complainant who claims relief in terms of warranty has to claim the same from Maruti and not from them and complaint which has been made solely against Opposite Party No.1 is liable to be dismissed for non joinder.

b.The Complainant is not entitled to claim any relief under the warranty policy since the terms as set out under the Warranty Policy specifically indicates that the warranty shall be for 24 months or 40,000 kms.(whichever occurs first.) History of the complainant vehicle indicates that the vehicle has completed 40,142 kms. On 28.04.2006 when it was brought to the workshop of the Opposite Party.

c.It is admitted that the touch up was done by the Opposite Party.

d.Complainant is not entitled for replacement as there is absolutely no case made out for replacement as has been sought for by the Complainant.

e.Hence Opposite Party No.1 prays for dismissal of case with costs.
2.Opposite Party No. 2 in its defence states as under:-

(i)The liability of the Opposite Party No.2 under the warranty which is a part and parcel of the same contract is specific as set out under clause 3 of the owner's manual and service booklet. Opposite Party never refused to provide warranty benefits to the complainant.

(ii)Opposite Parties have duly discharged their obligations under warranty and the complaint for replacement of complete body shell is not maintainable.

(iii)Complainant has filed a vexatious complaint without any cause of action. There is no deficiency in service on the part of Opposite Parties and hence Opposite Party No.2 prays for dismissal of complaint.


Both parties filed their affidavit in evidence and other documents.


Our findings and observations read as under:-

FINDINGS AND OBSERVATIONS

1.The Complainant has produced on record documents, letters, tax invoice service report etc. It is not disputed by the Opposite Parties-1 & 2 that touch up all over body is done by the Opposite Party-1. Further right and left pillar touch up painting is also done various times.

2.The vehicle was purchased on 19/08/2004. The admitted fact is warranty starts from 19/08/2004 for a period of 24 months and these painting works are done from 12/04/2005. We find the proposal of painting of the vehicle was given by Opposite Party to the Complainant.

3.The Opposite Party in para 9 of Written Version of Opposite Party-1 states that this touch up was done only to satisfy the Complainant. Here the question is posed to our mind that why the Opposite Party-1 should offer such complementary services to the customer.

4.The Opposite Party-2 in its Written Version has denied the liability however has not touched the issue of repainting, touching up, rusting of the vehicle within the warranty period. The Opposite Party-2 has stated that the material has used and paints used for manufacturing of the vehicle undergo steering quality control test and that the Complainant has not pointed out alleged rusting problems at the time of 3 free servicing but we find that completed work order issued by Opposite party-1 on 12/04/2005, 14/06/2005 & 30/09/2005 which proves the allegation of repainting, touch up to the vehicle. Why this type of painting and touch up of work was done to the vehicle within the period of 9 months from the date of purchase i.e. during the warranty period obviously.

5.The Application for interim relief filed by Complainant on 06/09/2007 alongwith inspection Report of R.T.O. makes it clear that the rust notice on the tax vehicle continued till 01/02/2008. The additional documents produced alongwith Interim Relief makes it’s at clear. The body of the vehicle used is of substandard quality the Complainant is therefore entitled the relief sought as Opposite Parties-1 and 2 have failed to prove the defence.



We are therefore inclined to pass the following:-

ORDER

1.Opposite Parties-1 & 2 are directed to replace the body of vehicle GA-01-T-6249 alongwith fresh warranty to start from the date of replacement to the Complainant.

2.The compensation of Rs. 25,000/- towards damages.

3.Order to be complied within 30 days from the receipt of this order.

1. Shri Dinesh Kumar S./O Shri Ram Krishan
2. Shri Ram Krishan S/O late Shri Deep Ram,
Both residents of Krishan Niwas, Kamla Nagar, Sanjauli, Shimla-6.

… Complainants.

Versus

1. M/S Goel Motors Pvt. Ltd.
Tara Devi, Shimla-171001
Through its authorized signatory

2. M/S Maruti Udyog Ltd.,
Palam Gurgaon Road, Haryana,
Through its Managing Director.


…Opposite Parties

Coram

Shri Pritam Singh (District Judge) President.
Ms. Karuna Machhan, Member (Female)
Mr. Charanjit Singh, Member (Male)
………………………………………………………………………..
For the complainant: Mr. Peeyush Verma, Advocate
For the Opposite Party No.1: Mr. Ratish Sharma, Advocate
For the Opposite Party No.2: Mr.Sanjeev Kumar, Advocate


O R D E R:
Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The facts in brief of case as set out in the complaint are that the complainants purchased a Wagon-R-LX car bearing registration No.HP-51A-0135 from the OP No.1 in the year 2003 for a total consideration of Rs.3,02,000/- which was duly insured by him with the New India Assurance Company on 26.05.2004 for a sum of Rs.2,55,000/- for a period of one year. It is case of the complainants that the aforesaid car which was manufactured by the OP No.2 and sold by OP No.1 to him met with an accident in August, 2004 at place Bhatakuffar and it sustained extensive damages and FIR to this effect was lodged at Police Station Dhali. That thereafter, the vehicle was handed over to the OP No.1 for effecting necessary repairs who gave estimate of the repair to the tune of Rs.1,60,000/- and finally OP No.1 charged a sum of Rs.1,14,877/- for repairing car but the OP No.1 did not repair the aforesaid vehicle to their satisfaction. According to the complainants, the insurance period of one year was to expire on 26.05.2005, and as such they took the aforesaid vehicle to the National Insurance Company for its insurance. But to their utter shock and disgust, they came to know that the engine and chassis number of the vehicle in question were missing and as such due to the aforesaid negligence/cheating of the OP No.1, the vehicle could not be reinsured for subsequent period and it has been rendered useless. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.
2. The complaint is resisted by OPs who took some preliminary objections regarding maintainability of complaint, jurisdiction of the Forum to try complaint and status of the complainant as consumer etc. On merits, OP No.1 did not dispute the factum of selling of the disputed car to the complainants and further carrying out the repair of the said vehicle at the request of the complainants, but the case of the OP No.1 is that parts containing original chassis and engine number of the vehicle had been damaged in the accident which were replaced with new spare parts manufactured by the OP No.2 and the repair was effected to the satisfaction of the complainants and this was fact also brought to the notice of the complainants at the time of redelivering of the vehicle to them and damaged old parts which were containing the engine and chassis number were also returned to complainants. As such there being no deficiency in service, the complaint is sought to be dismissed by all OPs.
3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the complaint.
4. Undisputedly, the complainants had purchased car Wagon–R-LX bearing registration No.HP-51A-0135 from the Op No.1 in the year 2003 for a sum of Rs.3,02,000/- which was duly insured by them with the New India Assurance Company on 26.05.2004 for a sum of Rs.2,55,000/-. It is the case of the complainants that the aforesaid car manufactured by the OP No.2 and sold by OP No.1 to them met with accident in August, 2004 at place Bhatakufar and it sustained extensive damages and FIR to this effect was lodged at Police Station Dhalli. That thereafter, they took the vehicle to the OP No1 for effecting necessary repairs who gave tentative estimate of the repairs to the tune of Rs.1,60,000/- and finally the amount of repairs to the tune of Rs.1,14,877/- was charged by the OP No.1 from them. However, the OP No.1 did not effect the repairs of the aforesaid car to their satisfaction. According to the complainants, the insurance period of vehicle for one year was to expire on 26.05.2005, therefore, they took the vehicle to the National Insurance Company to insure it for further period of one year, but to their utter shock and disgust, they came to know that the engine and chassis number of the vehicle in question were missing and the National Insurance Company refused to reinsure the vehicle. It is also case of complainants that the Op No.1 at the time of handing over the vehicle in question to them after its necessary repair did not disclose to them that he had changed the old damaged parts containing engine & chassis number of the vehicle. As such, due to the aforesaid negligence and fraud of the OP No.1, the vehicle in question could not be re-insured by him for subsequent period.
5. As already stated above, the OP No.1 did not dispute the factum of selling of the vehicle in question to the complainants and further carrying out the repair of the same at the request of the complainants. But, their case is that the original parts containing chassis & engine number of the vehicle had been damaged in the accident which were replaced by him with new spare parts manufactured by the OP No.2 and this fact was also brought to the notice of the complainants at the time of redelivering of the vehicle along with old replaced parts to them. But, no documentary proof to this effect has been placed on record by the OP No.1 to the effect that old replaced part containing chassis & engine number of vehicle were duly handed over to the complainants against proper receipt because the complainants have specifically alleged that they came to know about this fact only when it was pointed out by the National Insurance Company at the time of re-insuring it for subsequent period, therefore, the car could not be reinsured for subsequent period. No doubt, the OP No.1, alleged that there is a specific reference at Sr. No.99 of the cash memo dated 16.01.2004 Annexure A-5 that the damaged parts of the vehicle containing chassis and engine number were replaced and old replaced parts were handed over to the complainants, but from the perusal of the aforesaid cash memo, there is nothing to suggest that old replaced parts were handed over to the complainants at the time of redelivering the vehicle after repairs.
6. It is pertinent to state that during the pendency of this complaint an application for appointment of Local Commissioner was moved by the complainants which application was allowed vide zimni order dated 07.05.2007 and Shri Shashi Bhushan, Advocate was appointed as Local Commissioner who was directed by this Forum to inspect the vehicle in question and to report with regard to the engine & chassis number of the vehicle. The Local Commissioner after inspecting the vehicle in question submitted his report dated 17th July, 2007 placed on record. The Local Commissioner specifically reported that after inspecting the vehicle in question the engine & chassis number was found missing. It is further reported that the Local Commissioner tried his best to locate the engine & chassis number in vehicle, but he could not locate the same. No objections on this report were filed by the OP No.1, therefore, this report of Local Commissioner which remained unrebutted established that the aluminum plate containing chassis & engine number of the vehicle was missing that is why the vehicle was not containing chassis and engine number, when it was redelivered to the complainants after effecting its repairs by the OP No.1.
7. It may not be out of place to state here that the OP No.1 did not lead any evidence in the shape of affidavit of its proprietor or some authorized person to the effect that the replaced old parts of the vehicle containing chassis & engine number were handed to the complainants after effecting its repair who were also informed accordingly. Therefore, in the given circumstances, the adverse inference can be drawn against the OP No.1.
8. Thus, it can be safely held that the OP No.1 after effecting repairs of the vehicle in question neither returned the replaced old parts of the same containing its chassis & engine number to the complainants nor disclosed this fact to them at the time of redelivering the vehicle despite the fact that the Op No.1 charged sum of Rs.1,14,877/- as repair charges from the complainants. This act on the part of the OP No.1 would certainly tentamount to unfair trade practice who is also guilty of rendering deficient service to the complainants. As the vehicle in question had been sold by the OP No.1 for a total consideration of Rs.3,02,000/- and due to the negligent act of the OP No.1 it could not be reinsured as parts containing its engine & chassis number had been removed by OP No.1 illegally without intimation of complainants, therefore the vehicle now has become useless to the complainants as they are not in a position to reinsure it with any insurance company. As such, we are constrained to hold that the complainants are entitled to refund of sale consideration of Rs.3,02,000/- against OP No.1 only.
9. For the foregoing reasons, we allow this complaint and direct the OP No.1 to refund the sale consideration of Rs.3,02,000/- to complainants alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 08.08.2005 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.3,000/-payable by the OP No.1 to the complainants. The complaint against OP No.2 is however dismissed being not maintainable. This order shall be complied with by the OP No.1 within a period of forty five days, after the date of receipt of copy of this order.

1. Paramjit Kaur widow of Surinderpal Singh son of Sh. Bakhtawar Singh.

2. Amandeep Singh minor son

3. Parbhjot Kaur minor daughter

of late Sh. Surinder Pal Singh, both through their mother and natural guardian and next friend Smt. Paramjit Kaur.
All residents of 3217, Sector 32-A, Chandigarh Road, Ludhiana.

(Complainants)
Vs.

1 Gulzar Motors Limited, G.T. Road, Dholewal Chowk, Ludhiana through its Managing Director.

2. Managing Director, Gulzar Motors Limited, G.T. Road, Dholewal Chowk, Ludhiana.

3. Maruti Udyog Limited, Palm, Gurgaon Road, Gurgaon (Haryana) through its Managing Director.
(Opposite parties)

Complaint under section 12 of the Consumer Protection Act, 1986.
….
Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.


Present:
Sh. B.K. Baweja Advocate for the complainant.
Sh. V.B. Handa Advocate for opposite parities no.1 & 2.
Sh. S.L. Ghai Advocate for opposite party no.3.
O R D E R
T.N. VAIDYA, PRESIDENT:



1. Sh. Surinderpal Singh husband of complainant no.1 and father of complainants no.2 & 3, on 28.8.2006 purchased Maruti car manufactured by opposite party no.3, from their distributor opposite parties no.1 & 2 for Rs. 2,20,991/-. The car was assigned temporary number PB-10-BK (T) 7012. Sh. Surinderpal Singh then got it registered by obtaining registration number PB-10-BY-8729. On intervening night of 30.11.2006 and 1.12.2006 at about 3.30 A.M. Sh. Surinder Pal Singh was driving the said car in vicinity of sector 32-A. When the car was on motion, it caught fire all of sudden due to mechanical and latent defect in the engine of the said car. Sh. Surinderpal Singh received burn injuries to which be succumbed at the spot. Report no.42 1.12.2006 was registered qua this happening in Police Station Division No.7, Ludhiana. Death of predecessor in interest of complainants caused great mental tension and sufferance to them. He died on account of manufacturing defect in the vehicle, as it had latent defect, which was not checked by the opposite party before sale of the vehicle. Deceased was doing dairy business and earning Rs.10,000/- per month. Complainants, in such scenario filed this complaint under section 12 of the Consumer Protection Act, 1986, seeking compensation of Rs.15,00,000/- from the opposite parties, which they failed to pay despite service of legal notice dated 1.2.2007and in addition claimed Rs.50,000/- for physical and mental tension, pain and agony along with Rs.11,000/- as litigation costs.


2. Opposite parties no.1 & 2 in their reply averred that complaint is not maintainable as complainants are not consumer under section 2 (1) (d) of the Consumer Protection Act, 1986.They have no locus standi to file the complaint. Further averred that allegations so levelled require detailed and thorough examination of oral and documentary evidence, so, such allegations can not be dealt by this Fora due to proceedings before the Fora of summary nature. There is no deficiency in service on their part. Sale of vehicle to Sh. Surinderpal Singh is admitted. Rest of the allegations of complaint have been controverted in entirety. Denied that while the vehicle was being driven by Sh. Surinderpal Singh, it caught fire. Also denied that fire occurred due to mechanical or latent defect in the car and Sh. Surinderpal Singh received burn injuries to which he succumbed. Car was put to pre delivery inspection on 28.8.2006 and was found in perfect OK condition. First free service was done on 11.9.2006 to the satisfaction of the owner. Denied that Sh. Surinderpal Singh was earning Rs.10,000/- per month. The vehicle had no latent or manufacturing defect of any sort.


3. Opposite partyno.3 by separate reply also pleaded that the complaint is not maintainable as the complainants are not consumers under them. Nor the complainants ever purchased any goods manufactured by them. The claim for loss of life of predecessor in interest of the complainants does not constitute a consumer dispute. They have no locus standi to file the complaint. The vehicles manufactured by the Company are of best quality of latest technology. Over 25,00,000/- vehicles manufactured by Company had been sold. All the products manufactured by the Company undergo stringent quality control test before dispatch to dealer. The vehicle in question had also undergone all the tests and pre delivery inspection was done on 28.8.2006. The vehicle was found in perfect condition. Relationship between opposite parties no.1 & 2 and opposite party no.3 is Principal to Principal under dealership agreement. It is denied that the vehicle caught sudden fire while it was being driven by Sh. Surinderpal Singh. The allegations are based on conjectures and surmises. They are not liable to pay any compensation. There was no manufacturing or latent defect in the engine of the vehicle nor it caught fire. Claim is false and frivolous. Complainant can not claim any compensation from them.


4. To prove their respective contentions, parties led their evidence by way of affidavits and documents.


5. We have heard the arguments addressed by the ld. counsel for the parties, have gone through the file and scanned the documents and other material on record.


6. As purchase of the vehicle manufactured by opposite party no.3 from its dealer opposite parties no.1 & 2 for valuable consideration is admitted. So, we won’t discuss evidence relating thereto.


7. First question is whether the vehicle while being driven by Sh. Surinderpal Singh caught fire on account of manufacturing and latent defects in its engine and due to such fire Sh. Surinder pal Singh suffered burn injuries due to which he succumbed at the spot.


8. Qua this accidental death of Sh. Surinderpal Singh proceedings under section 174Cr. P.C. vide DDR no.42 dated 1.12.2006 at Police Station Division No.7, Ludhiana were carried out. Police got the post mortem of Sh. Surinder pal Singh done and took forensic expert to the spot. Ex.C.5 is the report of visit to site by Forensic Expert of the Punjab Govt.


9. As per report Ex.C.5, burnt remains of Maruti car were found at the spot; the exterior of the car was thoroughly burnt leaving no trace of any paint; there was no evidence of collision; all the tyres were deflated having effects of burning; rear left tyre was extensively burnt with a portion of it spread on the road; there was no skid mark on the road; burnt debris was traceable upto about 11 feet from the rear of the car; burnt bumpers were lying on the road, indicative of stationary burning; fuel tank cap was intact but fuel tank filler tube had a burnt plastic portion; all the lights were damaged due to burning; all window panes were missing but their molten remains were seen inside the car; upholstery of the vehicle was thoroughly burnt; plastic parts and wires insulations were burnt; few charred fruits like oranges, bananas, dates etc. were found on the rear passenger seat; the engine compartment, the battery, wire insulations, engine hoses and other plastic parts showed effects of burning and there was no smell of any petroleum products perceptible in and around the vehicle. After observing in his report the aforesaid aspects, forensic expert drew following conclusion:
“In the light of the above facts and extensive burning the cause of fire could not be determined, however, burning by over-heaving due to mal functioning of some part can not be ruled out”
Hence, he was not able to find out exact cause of burning but did not over rule burning due to ever hearing due to mal functioning of some part. Whereas, opposite parties have placed on record affidavit Ex.RW3 of Sh. Rakesh Sahdev engineer of opposite party no.3 in support of defence that the vehicle was sold after inspection and due checking and that all care was taken to manufacture the vehicles with latest technology. Similarly affidavit Ex.RW2 of Sh. Sukhwinder Kumar Service Manager of opposite parties no.1 & 2 and its Managing Director Sh. Gurcharan Singh RW1 have been filed.
10. It is in the scenario of such matter on record, contended on behalf of the complainant that the vehicle had manufacturing and latent defect due to which engine of the car caught fire perishing Sh. Surinderpal Singh in that fire. No doubt, the evidence as brought on record, reflect clearly that the vehicle was found totally damaged by forensic expert due to fire. But we have no material before us in this summary enquiry that on what account the vehicle caught fire while it was being driven by Sh. Surinderpal Singh at morning hours of the day. All the four doors of the car were found burnt. Whether the fire commenced from tyre burning due to any reason or there was anything else in the vehicle which caught fire on account of spark or otherwise, there is nothing on the record. There is also no expert report that the vehicle had manufacturing latent defect in its engine. All such aspects require to be proved and investigated by recording detailed evidence, providing opportunity of cross-examination to parties. Unless such course is adopted, it won’t be possible for us in summary enquiry like this to decide the matter. Matter involved is of complex questions /facts, so, we feel that matter should be relegated to be decided by proper courts of civil jurisdiction.


11. In case Arvinder Singh Sawhney vs. Zonal Manager, unit Trust of India 2002 (3) CLT 384 (Hon’ble Delhi State Consumer Disputes Redressal Commission, Delhi) complicated issues of facts were raised, so, decision of the Distt. Fora was upheld referring the complainant to approach Civil Court.


12. Hon’ble National Commission in case Tirupati Balaji Cold Storage and Ice Factory Vs. New India Assurance Co. Ltd. and another, reported in 2003 (2) CLT 556 (NC) has also laid that where the complainant has raised complex questions of facts and law requiring leading of oral and documentary evidence, complaint can not be decided in summary jurisdiction.


13. Hon’ble Supreme Court in case Chairman Thiruvalluvar Transport Corporation Vs. Consumer Protection Council reported in AIR 1995 Supreme Court 1384, has held that claim for compensation arising due to accident can not be adjudicated before the Consumer Court, as no services are hired or availed by the consumer.


14. In the present case, accidental death is alleged when the car, as per complainants, caught fire due to manufacturing and latent defect in the engine. So, we feel that this Fora consequently would not be empowered to decide the dispute.


15. We would not be honest to opposite parties, if do not refer their another point.
16. It is argued that complainants had not purchased the vehicle, so as consumers not entitled to file the complaint. The vehicle was purchased for valuable consideration by predecessor in interest of the complainant who qua that vehicle was consumer under the opposite parties. Property in the vehicle after death of owner was to be inherited by the complainants being first class heirs. As such, complainants being heirs of the property of Sh. Surinderpal Singh would step into his shoes as consumers and consequently have to be taken as such for the purpose of section 2 (1) (d) of the Consumer Protection Act, 1986.
17. Further, it was pointed out that the matter of compensation required to be assessed in case complaint to be allowed and for such detailed evidence is required. So, complaint deserve to be referred to the proper courts. We are not giving much stress to these submissions, because we have already concluded that to decide such controversy this Fora is not competent, proceedings being of summary nature before us.
18. In view of the discussions, we refrain ourselves from deciding the matter of complex nature, which require detailed enquiry by oral and documentary evidence and providing chance of cross examination to the parties. Therefore, we leave the complainants to approach court of competent jurisdiction to get their claim decided.

Vettoor R. Jayaprakash, Anandha Bhavan, Market Road, Attingal – 695 101.

(By Adv. Vettoor S. Prakash)

Opposite parties:

1. 1. 1. Maruti Udyog Limited, Represented by Managing Director, IInd Floor, Jeevan Prakash, ASH-25 Kasturba Gandhi Marg, New Delhi – 110 001.

(By Adv. K.L. Narasimhan)

1. 1. 1. Indus Motor Co. Ltd., Trivandrum, represented by the Manager, Indus Motor Co.Ltd, T.C.24/885, Mettukada, Thycaud, Thiruvananthapuram.

(By Adv. S. Reghukumar)

O.P.No. 191/2003

Complainant:

Vettoor R. Jayaprakash, Anandha Bhavan, Market Road, Attingal – 695 101.

Opposite parties:

1. The Maruti Udyog Limited, Represented by Managing Director, IInd Floor, Jeevan Prakash, ASH-25 Kasturba Gandhi Marg, New Delhi – 110 001.

(By Adv. K.L. Narasimhan)

1. 1. 1. The Popular Vehicles and Services Ltd., Quilon, represented by the Manager, Popular Vehicle and Service, Terminal Theatre Building, Beach Road, Pallithottam, Quilon-691 006.

These complaints are disposed of after the period so specified under the Consumer Protection Act, 1986. O.P. 98/2002 remanded as per order dated 7/8/2007 of the Hon'ble State Commission, whereas O.P. 191/2003 was taken up for orders by the predecessors of this Forum on 14..03..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaints jointly on joint trial application by the complainant. These O.Ps having been heard on 07..03..2009, the Forum on 15..04..2009 delivered the following:

COMMON ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:


The facts leading to the filing of the complaint (O.P. 98/2002)are that complainant had purchased a Maruti Diesel Zen Motor Car manufactured by the 1st opposite party (Maruti Udyog Limited), from the 2nd opposite party – Indus Motor Company Limited for Rs.4,44,622/- on 15/9/1999, on assurance of opposite parties that the said car is of superior quality and excellence in performance, that the said vehicle was of very poor performance and defective in many respects, that all the structural components of the said vehicle were of low quality and from the very inception, the functioning of the vehicle was unsatisfactory. Complainant issued a notice to 1st opposite party on 26/10/1999 stating about the poor performance of the vehicle. Subsequently complainant was directed to entrust the vehicle to Shri. Vijaya Chandran, Works Manager, Maruti Indus Workshop, Thiruvananthapuram, who checked the vehicle and found that complaints are genuine. On 4/2/2000 complainant met with an accident while driving the said vehicle slowly because of its poor quality of components and functioning. On 10/2/2000 complainant issued another notice to 1st opposite party informing them about the defects and unsatisfactory performance of the said vehicle and as per the advice of the 1st opposite party, complainant had placed the vehicle before the 2nd opposite party, they also showed their inability regarding the defects of the vehicle, but done something by replacing the piston and pump system etc in order to enhance the pulling efficiency. Even after repeated repairs and replacement of various components, the functioning of the vehicle was not satisfactory and defects persisted. The dismounting and mounting of major defective components led to some other subsequent trouble. There is leakage from the coolant, water pump problem, A/C Gas leakage, Radiator leakage etc., without troubles the complainant could not use the vehicle even for a single day till the date of complaint. Complainant had spent about Rs.20,000/- for repair and replacement of various components of the vehicle. The vehicle developed major troubles like piston and pump trouble, engine trouble, gear box trouble, coolant leakage into engine, chase cracking, water pump trouble, rusting of platform etc within a short span of use of less than 50000 kilometers and the vehicle delivered to the complainant is full of defects. Hence this complaint to direct the opposite parties to refund Rs. 4,44,622/- the price of the vehicle and Rs. 20,000/- toward expenses made by the complainant and Rs.15,000/- towards advance lumpsum tax paid and Rs.10,000/- towards compensation and cost.


2. 1st opposite party filed version contending that the complaint is not maintainable. The complainant has made the said allegation after the vehicle in question met with an accident due to the driving error of the complainant. The complaint is vague in nature without any supporting material on record. The vehicle in question is in the extensive use of the complainant and the opposite parties discharged their obligations during the warranty period. The complainant has failed to set out any specific defect in the vehicle during the warranty period. The complainant is neither entitled to replacement of vehicle with new vehicle nor the refund of the price of the vehicle as per the terms and conditions of the sale. The dealer of the 1st opposite party had carried out the repair or replacement of components. There was no repeated defect in the vehicle as alleged in the complaint. The vehicle met with an accident on 7/2/2000 due to negligent driving. The vehicle in question was delivered to the complainant in perfect roadworthy conditions subject to the warranty terms and conditions. Hence 1st opposite party prayed for dismissal of the complaint.


3. 2nd opposite party filed version contending that the complaint is barred by limitation. Complainant had suppressed a lot of material facts regarding the vehicle. The vehicle involved in the case is a subject matter of theft committed by some criminals, that the vehicle was stolen from the residence of the complainant on 6/8/2000 and the FIR was prepared by the Attingal Police. The complainant has lodged an insurance claim to the insurer of the vehicle, the vehicle was later recovered by the Police after a few months. From the date of theft and till recovery the vehicle was under the custody of them and they were using the vehicle in such a manner as that would affect the condition of the vehicle. The allegation regarding the malfunctioning of the vehicle is due to the misuse of the vehicle by those persons who are behind the theft of the vehicle. There is no manufacturing defect in any part of the vehicle. There is no deficiency in service on the part of the 2nd opposite party. Hence 2nd opposite party prayed for dismissal of the complaint.


The facts leading to the filing of the complaint (O.P.No. 191/2003) are that on 11/2/2003 the above said car had a sudden brake down due to engine problem and 2nd opposite party (The Popular Vehicles and Services Ltd., Quilon) had towed the vehicle to their workshop on 12/2/2003 and despite of repeated request the 2nd opposite party detained the vehicle till 2/5/2003 at their workshop on the pretext of engine work. Though the complainant had requested the 2nd opposite party to get the repair work done at their cost, there was no response from them, finally the complainant was forced to remit Rs.49,460/- as per three consecutive bills. Hence this complaint to direct 1st opposite party to make reimburse the said amount and 2nd opposite party to pay Rs.11,250/- for unlawful detention of the vehicle along with Rs.25,000/- toward compensation.


The 1st opposite party filed version denying the allegations of engine trouble due to manufacturing defect. It is submitted by 1st opposite party that they are not aware of the repairs alleged to have been carried out by the 2nd opposite party and the matter is between complainant and 2nd opposite party and that 1st opposite party is not liable to answer the claim.


2nd opposite party filed version contending that 2nd opposite party is not a party to the transactions mentioned in paras 1 to 8 in the complaint, that such narrations will lead to the application of resjudicata, that as complainant insisted for the repairs on 12/12/2003, 2nd opposite party made arrangement for towing the vehicle concerned from Nikil Taj to the workshop of the 2nd opposite party, and that the 2nd opposite party had carried out the repair and maintenance work of the vehicle concerned promptly without delay and the vehicle was ready for delivering during the first week of April 2003, but complainant wanted the vehicle to be delivered without effecting the payment of repaired charges on the ground of pending litigation between complainant and 1st opposite party in O.P.98/2002. On remittance of the repair work complainant took delivery of the vehicle unconditionally. It is further submitted by the 2nd opposite party that since the vehicle was repaired at the workshop of the 2nd opposite party at Kollam, this Forum lacks jurisdiction to entertain this complaint. Hence 2nd opposite party prayed for dismissal of the complaint.


The points that arise for consideration in O.P.98/2002 are:

1. 1. 1. Whether the Maruti Diesel Model Zen Motor Car is having manufacturing defect?
      2. Whether the defects in the vehicle have been developed within the period of warranty?
      3. Whether the complainant is entitled for refund of the purchase price of the vehicle?
      4. Other reliefs and costs?

The points that arise for consideration in O.P. 191/2003 are:

1. 1. 1. Whether the said vehicle had developed major engine trouble on 11/2/2003, due to manufacturing defect?
      2. Whether the complainant is entitled to get the vehicle repaired at the cost of opposite party?
      3. Other reliefs and costs?

In support of the first complaint (O.P. 98/2002), complainant has filed affidavit and Exts.P1 to P15 and Ext.C1 were marked. In rebuttal, 2nd opposite party has filed affidavit and Exts. D1 & D2 were marked.


In support of the second complaint (O.P. 191/2003), complainant has filed affidavit and Exts. P1 to P19 were marked. In rebuttal, 1st opposite party has filed affidavit. Opposite parties did not file any documents.




Points (i) to (iv) in O.P. 98/2002: It has been the case of the complainant that complainant had purchased a Maruti Diesel Zen Motor Car manufactured by the 1st opposite party, Maruti Udyog Ltd., from the 2nd opposite party, Indus Motor Company Ltd for Rs.4,44,629/- on 15/9/1999, on assurance of opposite parties that the car is of superior quality and excellance in performance, that vehicle is of very poor performance and defective in many respects and that the structural components of the vehicle are of low quality and from the very inception of the functioning the vehicle has been unsatisfactory. Complainant alleges further that on issuance of notice dated 26/10/1999 to 1st opposite party, complainant was directed to entrust the vehicle to the 2nd opposite party and accordingly 2nd opposite party checked the vehicle and found the complaints were genuine. Complainant alleges further that on 4/2/2000 the said vehicle met with an accident because of poor quality of its components and functioning and of manufacturing defect of the vehicle. It has also been the case of the complainant that even after repeated repairs and replacement of various components; the functioning of the vehicle is not satisfactory and defects still persist. Submission by the complainant is that though the pumping system was replaced by the 2nd opposite party the defect could not be rectified. Further, it is submitted that the mounting and dismounting of major components led to subsequent troubles. There is leakage from the coolant, water pump problem, A/c Gas leakage, Radiator leakage, low engine pulling capacity and very high engine sound. It is further alleged that complainant had spent about Rs.20,000/- for repair and replacement of various components of the vehicle. 1st opposite party denied the allegation and remarked that the vehicle in question met with an accident not due to defects, but due to the driving error of the complainant. 2nd opposite party denies the allegation in the complaint and submission by the 2nd opposite party is that the said vehicle was stolen from the residence of the complainant on 6/8/2000, a crime was registered by the Attingal Police and later it was recovered by the Police and from the date of theft till recovery, the vehicle was under the custody of the criminals and they were using the vehicle in such a manner as that would affect the condition of the vehicle. It is submitted that 2nd opposite party inspected the vehicle and found that the vehicle did not suffer from any defect and that the complainant had approached the 2nd opposite party for periodical maintenance and the same was duly executed. Ext. P1 is the advocate notice dated 26/10/1999. Ext.P2 is the acknowledgement card of Ext.P1. Ext.P3 is the copy of the notice dated 10/2/2000 addressed to 1st opposite party. In Ext.P3, Ext.P1 is referred. Ext. P4 is the acknowledgement of Ext.P3. Ext.P5 is the reply dated 5/11/1999 issued by the 1st opposite party with reference to Ext.P1. Ext.P6 is the reply dated 17/2/2000 issued by the 1st opposite party with reference to Ext.P3. Ext.P7 is the copy of the hire purchase schedule dated 6/10/1999 issued by the Sundaram Finance Ltd. Ext. P8 is the copy of the credit bill dated 11/7/2002 issued by the Popular Vehicles and Services Ltd to the complainant for Rs.3,382/-. Ext.P10 is the copy of the credit bill dated 4/1/2003 issued by Popular Vehicles to the complainant. Ext.P11 is the credit/cash bill dated 20/1/2003 issued by Nikhil Taj, Maruti Authorised Service Station. Ext.P12 is the copy of the job order dated 12/2/2003 issued by Popular Vehicles and Services Ltd. Ext.D1 is the copy of FIR prepared by the Attingal Police. As per Ext.D1 the vehicle in dispute was stolen from the residence of the complainant on 6/8/2000. Ext.D2 is the copy of the Motor Claim Form. It is pertinent to note that regarding the theft of the vehicle the fact is not mentioned in the complaint, while regarding the accident the fact is mentioned in the complaint.


A commission has been appointed who is an expert Engineer in Kerala Automobiles and being an opinion of an experienced man it is evidently given due importance. Ext. C1 is the commission report. 2nd opposite party had filed objection to commission report, on 26th March 2003, while 1st opposite party filed objection to CR on 5th August 2008. Complainant has never mentioned about the warranty in the complaint, nor has he furnished the warranty card.


In the versions also, there is no mention regarding the warranty period. Commissioner has not been cross examined by the opposite parties inspite of ample opportunity was given to them. Commission in his C1 report, stated that in the vehicle in dispute, the engine compartment is not adequate to accommodate the engine, which will create future service problems. For dismantling the gear box, the entire engine has to be dismantled, while dismantling the engine, the refrigerant gas of the Air conditioner to be re-fitted. Commissioner further says that the Fuel injection pump is the heart of a diesel engine and highly sophisticated equipment and any mismatch will create low pick up, high emission, power loss, low mileage etc. According to the Commissioner, this is a major manufacturing defect. Now the complaint is rectified by the dealer, by reclaiming the fuel injection pump. Commissioner further reports that the water pump/Regulator Assembly/ S/A Rectifier were found changed within a short span of the use of the vehicle. Commissioner further says that the spare parts changed/work done due to the accident during February 2000 were not considered to ascertain the defects of the vehicle in dispute. Various defects have been pointed out by the Commissioner and the findings of the commission are as follows:

1. 1. 1. Fuel injection pump originally fitted on the Diesel Engine was inadequate to deliver the required power to the engine. This was the major reason for low pick up. This is a design/manufacturing defect.
      2. The chasis of the car in dispute is having a crack and now welded. One of the reasons for the crack is the improper design of the chasis to meet the requirements of the Diesel Engine fitted on the car.
      3. Rattling sound is high – Mainly due to vibration of the Diesel Engine.
      4. The Diesel Engine fitted on the vehicle is not exclusively designed for this car. Weight of the Diesel Engine is more than 75kgs compared with Petrol Engine of Maruthi Zen.
      5. The car was procured on 15/9/1999. Within a short span of 3 years, the maintenance work done/spare parts replaced was on the higher side. Chasis welding, Silencer welding, steering column welding, Replacement of water pump, Regulator Assembly, Holder S/A Rectifier, Wheel cylinders, Repair of Gear box are few of them.

It is pertinent to point out that the complainant had purchased the car on 15/9/1999 while the first complaint of the vehicle in dispute is seen sent to opposite parties on 26/10/1999 as per Ext.P1, and repairs were seen done as per 3rd free service job card No. 0013044 dated 17/12/1999 as reported by the Commission in Ext.C1. Further, it is to be noted that the car met with accident during February 2000, but according to the expert such accident need not cause design defect, or engine defect or water pump defect or gear-box trouble. There is no dispute that the engine found at the time of delivery, at the time of accident and at the time of inspection are the original one. Though opposite parties have filed objection to Commission Report, it is not seen corroborated by examining the expert. 1st opposite party has never filed affidavit in support of their version, nor furnished any documents to controvert the pleadings in the complaint, nor taken any step to examine the expert commission. Though 2nd opposite party has filed affidavit and objection to commission report, commissioner is not seen examined. The case in hand was remitted to this Forum by the Hon'ble Appellate Commission to pass order in accordance with law after giving opportunities to opposite parties and complainant to adduce evidence. Opposite parties did not come forward to adduce further evidence, in spite of ample opportunity was given to them.


It is submitted by the opposite parties that the vehicle has been subject to theft, the vehicle was later recovered by the Police after a few months, and that from the date of theft till recovery the vehicle was under the custody of the criminals and they were using the vehicle in such a manner as that will affect the condition of the vehicle. Further opposite parties submit that the allegation in the complaint regarding the malfunctioning of the vehicle, if any, is due to the misuse of the vehicle by these persons who are behind the theft of the vehicle. Opposite parties did not adduce any evidence to substantiate their stand that the malfunctioning of the vehicle was due to the misuse of the vehicle by the persons behind the theft of the vehicle. It is pertinent to point out that there is no case on the part of opposite parties that the thieves have replaced any part. As per Ext. C1 report, the vehicle was giving trouble even before the theft and accident.The original engine continues in the vehicle. Hence the defects pointed out by the expert in Ext.C1 are the basic defects of the vehicle. In view of the above and in the light of evidence available on records we find the vehicle is having inherent manufacturing defect and the troubles are developed within the warranty period. Evidently, complainant has used the vehicle for a long time. So at this distance of time it will not be just and proper to direct the opposite parties to replace the vehicle with a new one or refund the purchase price of the vehicle. In our view, since the vehicle had already been repaired by the complainant and complainant had been running the same for a long time, we allow the complainant to own and retain the vehicle and direct opposite parties to refund half of the purchase price of the vehicle which comes to the tune of Rs.2,24,311/-. Complainant is also entitled to get compensation from the opposite parties.


Points (i) to (iii) in O.P. 191/2003 : In this case, complainant alleges that on 11/2/2003 the above said car had a sudden brake down due to engine problem and the 2nd opposite party had towed the vehicle to their workshop on 12/2/2003 and despite of repeated request the 2nd opposite party detained the vehicle till 2/5/2003 at their workshop on the pretext of engine work. It is further alleged in the complaint that though the complainant had requested the 2nd opposite party to get the repair work done at their cost, there was no response from them, finally complainant was forced to remit Rs.49,460/98 as per three consecutive bills. 1st opposite party denies the allegation of engine trouble due to manufacturing defect. Further, 1st opposite party says that they are not aware of the repairs alleged to have been carried out by the 2nd opposite party and the matter is between the complainant and the 2nd opposite party and that 1st opposite party is not liable to answer the claim. 2nd opposite party says that 2nd opposite party is not a party to the transaction mentioned in paragraphs 1 to 8 of the complaint and that such narration will lead to the application of resjudicata. It is submitted by the 2nd opposite party that as the complaint insisted for the repairs on 12/12/2003 2nd opposite party made arrangements for towing the vehicle concerned from Nikhil Taj to the workshop of the 2nd opposite party, that the 2nd opposite party had carried out the repair and maintenance works of the vehicle concerned promtply, that without delay the vehicle was ready for delivering during the first week of April 2003, but complainant wanted the vehicle to be delivered without effecting payment of repaired charges on the ground of pending litigation between the complainant and the 1st opposite party. Further, 2nd opposite party says that upon receipt of the letter dated 21/4/2003 issued by the 2nd opposite party, complainant took delivery of the vehicle on payment of all charges levied by the 2nd opposite party unconditionally. Further, 2nd opposite party says that since the vehicle was repaired at the workshop of the 2nd opposite party at Kollam, this Forum lacks jurisdiction to try this complaint. On going through the complaint, version and Exts. P1 to P19 it is to be noted, that the reference throughout the complaint is in connection with O.P.No.98/2002, wherein the allegation of manufacturing defect had already been raised by the complainant and expert commission had already been inspected the vehicle and filed report as Ext.C1., and since this Forum had already found manufacturing defect in the said vehicle and award was granted thereupon in O.P.98/2002, further allegation of the same manufacturing defect in the subsequent complaint (in O.P. 191/2003) is devoid of bonafides. Hence this complaint has no merits, which deserves to be dismissed.


In the result, O.P. 98/2002 is allowed. Opposite parties shall jointly and severally refund a sum of Rs.2,24,311/-to the complainant. Opposite parties shall also pay a sum of Rs.10,000/- toward compensation and Rs.5,000/- as cost to the complainant. Complainant is allowed to own and retain the vehicle in dispute. The said amounts shall carry interest at the rate of 18%, if not paid within two months from the date of receipt of this order.


Whereas, O.P. 191/2003 is dismissed. Both parties shall bear and suffer their costs.

Shri Mohinder Singh Verma,

Resident of Verma Niwas, Near S.C.E.R.T. Complex

Rabon, Solan, Tehsil and District Solan, H.P.





… Complainant.

Versus



1. Maruti Udyog Limited, Palan Gurgaon Road,

Gurgaon (Haryana)

Through its Managing Director.



2. Goyal Motors Private Ltd. Having its Registered Office

Goyal Bhawan 3rd Floor, The Ganj, Solan, H.P.



…Opposite Parties.



For the complainant: Mr. Vivek Kalia, Advocate.

For the Opposite Party No.1: Mr. Abhinav Sharma, Advocate vice

Mr. Sudhir Thakur, Advocate.

For the Opposite Party No.2: Exparte.



O R D E R:



Pritam Singh (District Judge) President:- This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief is that in the year 2005, he purchased Maruti Alto Car bearing registration No.HP-14A-1597 from the OP No.2, which was duly insured with the OP No.2 through MIS having collaboration with National Insurance Company. That at the time of insuring the vehicle, he was told by the OP No.2 that in case of any accident, the claim shall be discharged by the OP No.2 through MIS without any charges. It is the case of the complainant that in the month of August, 2006, the aforesaid car met with an accident near Oachghat and suffered extensive loss. That the factum of accident was intimated to the OP No.2 telephonically and surveyor was also appointed who visited the spot and inspected the damaged vehicle. Thereafter, the vehicle in question was left in the workshop of the OP No.2. But to his utter surprise, the OP No.2 illegally issued a bill dated 30.01.2007 for Rs.16,612/- which includes Rs.11,300/- as parking charges and Rs.3500/- as estimate charges along with service tax, which amount was deposited by the complainant with the OP No.2 under protest. The OP No.2 was also requested to refund the amount of the bill aforesaid, but to no avail. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.



2. The OP No.1 while filing reply to the complaint took preliminary objections regarding status of the complainant qua him alleging that the complaint is bad for mis-joinder of parties, cause of auction etc. On merits, the OP No.1 alleged that MIS has been providing certain special features with the insurance cover and as per special features of MIS policy, the customer is not liable to pay the whole claim amount and only depreciation and compulsory deduction is payable at the time of accidental repair. Hence there being no deficiency in service on the part of the OP No.1, the complaint is sought to be dismissed. However, OP No.2 did not choose to contest the complaint and as such the complaint was ordered to be heard exparte against OP No.2 vide order dated 19.07.2007.




3. We have heard the learned counsel for the complainant at length and have also thoroughly scanned the entire record of the case.



4. The complainant has relied upon Annexure C-1 is copy of bill dated 30.01.2007 issued by the OP No.2 to the complainant. As per the contents of this bill, a sum of Rs.11,300/- has been charged as parking fee and a sum of Rs.3,500/- as estimate charges including Rs.1811/- as service tax. Thus, total sum of Rs.16,612/- has been charged from complainant by OP No.2. The complainant also filed copy of legal notice Annexure C-4 calling upon OPs to refund aforesaid amount illegally charged from him which was not refunded by OPs. The complainant also filed his affidavit in support of complaint. Therefore, from unrebutted oral and documentary evidence adduced by complainant, it stands established on record by complainant that the amount aforesaid was illegally charged by the OP No.2 from him. As the OP No.2 did not contest the complaint therefore, the adverse inference can be safely drawn against the OP No.2. As such, the OP No.2 by illegally charging Rs.16612/- from the complainant certainly committed deficiency in service.



5. Resultantly, we allow this complaint and direct the OP No.2 to refund a sum of Rs.16,612/- to the complainant along with interest at the rate of 9% per annum from the date of filing of the complaint, i.e. 05.04.2007, till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.1000/- payable by the OP No.2 to the complainant. However, the complaint against OP No.1 is dismissed being not maintainable. This order shall be complied with by the OP No.2 within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the complainant and OP No.1 have undertaken to collect the certified copy of this order from the office, free of cost, as per rules, whereas the certified copy of this order shall be sent to the OP No.2 through UPC. The file after due completion, be consigned to record room.

Balwinder Singh aged 58 years son of Sh. Kishan Singh, resident of 2145, Street No.27, Janta Nagar, Ludhiana.

(Complainant)

Vs.



1. M/s Gulzar Motors Ltd. G.T. Road, Dholewal, Ludhiana through its Managing Director.



2. M/s Maruti Udyog Ltd Palam Gurgaon Road, Gurgaon, through its General Manager.

(Opposite parties)


O R D E R



1. Opposite party no.1 is authorised dealer of OP No.2 M/s Maruti Udyog Limited, Ludhiana. Complainant purchased Maruti Swift Car bearing temporary no.PB10.BR. (Temp-2007)3439, engine no.1020277, chassis no.242038 for Rs. 5,12,454/-, vide invoice dated 7.7.2007. Car was represented to be a new car. But after few days of the purchase, complainant noticed that colour of the car was fading in the shape of round circles on whole body of the car. Apart from this, bonnet of the car was not closing properly. Car was pulling towards left while in motion, which creates problem for the complainant to drive the car as it would have caused accident. Matter was reported to the opposite party. Their representative found defects in the car and then suggested change of parts. The car sold was defective and repaired, sold as a new one to the complainant. Such act on the part of opposite party is claimed amounting to deficiency and resorting to unfair trade practice and has sought direction against the opposite parties to replace the defective car with a new one or to return the price of the car in entirety and to pay compensation of Rs.1,00,000/-.



2. Complaint was not contested by opposite party No.1, so, was proceeded against ex-parte.



3. Opposite party no.2 in their reply denied any deficiency in service and resorting to unfair trade practice. However, sale of the car by opposite party no.1 to the complainant, manufactured by them is admitted. But denied that the car had any manufacturing defect. Denied that on account of any manufacturing defect, colour of the car was faded. Pleaded that the car was brought after purchase, for service on 17.7.2007 to workshop of opposite party no.1. At that time complainant never complained about any defect in the car or fading of the colour. Vehicle was attended and serviced as per warranty terms and delivered back to the complainant same day. Complainant for the first time pointed out the problem on 1.8.2007 and it was observed that problem occurred due to falling of some outside chemical but not due to any manufacturing defect. Opposite party no.2 is a leading manufacturer of the car in India. They are using ultra technical equipment and robot in its paint shop during the paint process of a vehicle. The vehicle passes through various process and tests. After painting process, car is carried out automatically with the aid of robots. Car is properly inspected. They can not be held liable for fault in maintenance of the vehicle by the complainant. So, there was no negligence omission on their part.


4. In order to prove their versions, both the parties led their evidence by way of affidavits and documents and stood heard through their respective counsels.


5. We may state that the complainant in support of his allegations that the vehicle had manufacturing defect has filed only his own affidavit Ex.CW1/A and adduced no other evidence. Neither he got the vehicle tested or examined from any automobile engineer or any other expert to bring home his allegations. His allegation that manufacturing defects were pointed out in the vehicle by the engineer of the opposite party is also not substantiated from the job cards of the vehicle. Neither any such mechanic or engineer was examined by the complainant.


6. Ex.C.4 is the job order slip dated 24.8.2007 of the vehicle. It was taken by the complainant to opposite party no.1 with the complaint that the vehicle was pulling to LHS, for bonnet adjustment and for check of engine noise. Second job order slip is dated 25.8.2007 but nothing recorded in that job card. Also placed on record is ex.C6 of Stan Autos Ltd. dated 30.7.07. But copy of the job card is so dim that nothing is made out there from for what purpose the car was taken to Stan Autos.


7. Contrary, opposite party no.2 in support of their defence have brought on record job card dated 3.7.2007 prepared at the time of sale of the vehicle by the opposite party no.1 to the complainant. At the time of said inspection and preparing job card everything has been marked as OK.


8. It was for the first time on 17.7.2007 that the complainant took his vehicle for service vide job card Ex.R.2/4 and his complaint was for LHS pulling check, oil change, light check and general check up at the time of first free service. No complaint at the time of first service of fading of paint was made. It means that the paint was not fading when for the first time on 17.7.07, the car for first service was taken by the complainant to the workshop of the opposite party.


9. Ex.R.2/5 is copy of the job card dated 6.10.2007 issued at the time of second free service. The vehicle taken for general check up and rear side noise. . On 3rd occasion, car was taken for free service on 12.12.2007 and copy of the job card is Ex. R2/6. Job recorded therein is oil and oil filter change, wheel alignment, fuel consumption high, pulling on LH side, R.H. pulling on brake applying and disc pad clear. In none of these job cards, complainant ever intimated fading of colour of the vehicle


10. In these circumstances, we can not brush aside plea of the opposite party that colour of the vehicle might have faded due to falling of some chemical. As such, it had nothing to do with some defect in painting of the vehicle.


11. Another grouse of the complainant is that bonnet was not adjusting properly. But it may be due to any reason unconnected with manufacturing defect. Bonnet could get loose on account of reasons connected with nut bolts, screw and unconnected with manufacturing process.


12. Third grouse of the complainant was that the vehicle was pulling or dragging towards left. Such action would not be a manufacturing defect because dragging of the vehicle might be due to unbalanced wheels or having unbalanced air pressure in the wheels.


13. Complainant, as stated earlier, failed to get his vehicle tested from any expert or engineer to bring home his allegations that the vehicle has manufacturing defect.


14. So, we are of the view that the complainant has failed to establish/prove any manufacturing defect in the vehicle. Therefore, finding no merit in the complaint, same is dismissed. We leave the parties to bear their own costs.

Mrs. Bharti Malani,

‘Padmashree’

7, Raja Street, II St.,

Sowripalayam,Coimbatore-641028. --- Complainant

Vs.

1. The Managing Director,

M/s. Maruti Suzuki India Ltd.,

Formerly Maruti Udyog Ltd.,

“Jeewan Prakash”,

11th Floor, 25, Kasthuribai Gandhi Marg,

New Delhi – 110 001.

2. M/s. A.B.T. Maruti,

69, Arokiyasamy Road,

R.S.Puram, Coimbatore - 641002. --- Opposite Parties.



This case coming on for final hearing before us on 16.4.09, 23.4.09, 28.4.09, 5.5.09 and 11.5.09 in the presence of Thiru.J.V.George, Authorised Representative for complainant and of Thiru P.M.Gowrishankar Advocate for the 1st Opposite Party and Thiru. N. Jeganathan, Thiru.M.Govindarajan and Ms.P.Suganthi Advocates for the 2nd opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite parties to replace with a New Car and pay a sum of Rs.1 lakh as compensation for mental agony, and the repair costs involved so far and to pay cost of the proceedings.

The case of the complaint are as follows:

1. The Complainant bought a Maruti Swift Car spending about 5 lacs and odd on 24.05.07 but it is utter disappointment that it is not upto the mark and very often developed with various problems, mainly Power reduction and emanating white smoke while the engine is raised. All the free services are completed and the complainant has lodged several complaints prevailing in the Car TN 37 AU 9093 bearing Engine No. 1013603 and Chassis No. 1A3FKEBIS 00232627. First defects noticed after first service and about the major problem of reduced power and the complainant reported to the second opposite party about the Power fluctuation while the Car is on the move. The Car cannot withstand the speed and totally power reduction so the car cannot move and the vehicle become slow and no pickup.

2. Several occasions the fact was reported to the local dealer namely the 2nd Opposite Party still they are unable to detect the real cause nor able to rectify the defect. Repeated representations by F A X, ‘E’ mail sent to 1st Opposite Party. Except a reply to contact the Chennai office no fruitful action is taken. The Complainant without to hesitation sent ‘E’mail messages requesting to rectify the manufacture defect or to replace with a new vehicle, so far no concrete action is taken. The complainant informed the 1st Opposite Party as a warning of approaching the Consumer Forum if the remedial measure is not taken. The 1st opposite party being a manufacturer adviced the 2nd opposite party to trace out the real cause for the power reduction. In fact the 1st opposite party can find out the real cause through their Research Wing, but the complainant feels they are also in a dilemma and not in a position to come to a conclusion as to why this major disaster is prevailing in their manufactured Car.

3. Apart from the Major problems discussed, there are complaints like, emanating white smoke as and when the Power reduced, in the bonnet gap is vast than the normal, Power Window gets struck while on operation and the Windows are not opening in time, Rattling of Doors, heavy noise in the suspension and the top of the bonnet painting is fading. So, the complainant feels it will be the permanent remedy if the Vehicle is replaced with a new one so that further complication may not develop. Now 20,000 km is crossed. The complainant afraid that the 2nd opposite party cannot undertake the service so, decided to go for another Maruti Service personnel so that at least they can do something to satisfy the complainant and the 2nd opposite party is functioning as a road side Mechanics and not proving their ability in the trade. Hence this complaint.

The case of the 1st opposite party are as follows:

4. The complainant has failed to set out any case for deficiency in service or unfair trade practice against the 1st opposite party. The liability under the warranty which is part and parcel of the sale contract is specific as set out under clause 3 of the owner’s manual and service booklet. The allegations made in the complaint do not constitute any consumer dispute between the complainant and 1st opposite party and thus the same does not give jurisdiction to this Forum to entertain the present complaint against the 1st opposite party. The relief, thus, asked for by the complainant fall outside the ambit of clauses (a) to (i) in section 14(1) of the said Act and the complaint petition is liable to be rejected o this ground also.

5. As per clause 2 of Warranty policy recites “The terms of the warranty shall be twenty four months or 40,000 kms from the date of delivery to the first owner”. During the tenure of this warranty period vehicle has to undergo three free services and two paid services. 1st free inspection/service at 1000km. or one month from the date of purchase, whichever comes first. 2nd free inspection/service at 5000km or six months, which ever comes first. 3rd free inspection/service at 10,000km or 12 months, whichever comes first. 4th inspection/service at 20,000km or 24 months whichever comes first. 5th paid inspection/service at 30,000km. or 36 months whichever comes first.

6. The complainant has taken her vehicle to the workshop of 2nd opposite party on 24.5.07 for getting fixed PVC mat, rubber matt and mud flaps, luggage carrier, grill etc. at her own costs. First free service was rendered by 2nd opposite party on 7.6.07.The complainant has brought her vehicle to the workshop of 2nd opposite party for carrying out accidental/body repairs on 12.6.07, which indicates poor handling and upkeeping of vehicle by complainant. the complainant has taken her vehicle to the workshop on 22.6.07 for fixing hook of rear seat cushion. 2nd free periodic maintenance service was carried out by 2nd opposite party on 10.8.07 at 4712kms. of plying vehicle. The complainant has given her express satisfaction in post service follow ups which indicates perfect ok condition of vehicle. The complainant’s vehicle was once again attended for accidental/body repairs by 2nd opposite party on 20.8.07 corroborating poor handing & maintenance of vehicle by complainant. 2nd opposite party checked the vehicle in question on 24.8.07 and under warranty replaced ECM. The complainant has given her express satisfaction in post service follow up indicating perfect ok condition of vehicle and satisfying services. That the complainant has taken her vehicle to workshop of 2nd opposite party on 12.11.07 for running repairs and the same were attended under warranty. 3rd free inspection/service was carried out on 27.11.07. The complainant has taken her vehicle to the workshop of 2nd opposite party for accidental/body repairs on 22.1.08 and carried out paid service on 25.2.08 and running repairs on 11.3.08. During said services complainant did not point out alleged defects and neither opposite parties have found the same in the vehicle. The complainant has given her satisfaction in pos service follow ups indicating perfect ok condition of vehicle and satisfying services of 2nd opposite party. The complainant has pointed out defect of poor pickup and emitting of white smoke on 21.3.08. The 2nd opposite party carried out road tests in the presence of service engineer and no problem was observed in the vehicle. The complainant has suppressed all these facts in this forum with malafide intentions. The opposite parties have at all times discharged their obligations under warranty.

7. It is denied that the vehicle in question is/was having alleged defects. It is denied that the opposite parties are not able to rectify the defects. The vehicle in question is in perfect ok condition and question doest arise of having manufacturing defects.”Swift” is one of the most successful and best selling models and until now 2,51,259 number of “Swift” have been delivered to delighted customers. There is no such defect of power reduction as alleged by complainant. The complainant is negligent in proper maintenance and handling of vehicle and resulting in its body repairs/accidental repairs several times. The complainant is suppressing these facts and trying to gain sympathy of this Forum by making frivolous allegations. There is no basis for complainant’s demand in replacement of vehicle. The present complaint is without cause of action and is liable to be dismissed with costs.

The case of the 2nd opposite party are as follows:

8. This complaint is false, frivolous and vexatious both in law and facts of the case. It is true that the complainant has purchased the Maruti Swift Car on 24.05.07. At the time of delivery of the above car, the complainant was fully satisfied and after taking test ride only, the above said car was delivered to the complainant. Subsequently free service and other repair works carried out. First free service was rendered by this opposite party on 67.06.07, normal routine service was carried out to the entire satisfaction of the complainant which the complainant has acknowledged by giving her satisfaction in post service follow up carried out by this opposite party.

9. Again shortly on 12.06.07 and on 22.06.07, the complainant approached with this opposite party for bumper spot painting and fixing hook of rear seat cushion. The same was done to her satisfaction. Second free periodic maintenance service was carried out by this opposite party on 10.08.08 at 4712 kms of plying vehicle. Soon after that on 20.08.07, the complainant vehicle was once again attended for accidental/Body repairs by this opposite party on 20.08.07 corroborating poor handling and maintenance of the said ve4hicle by the complainant. Within four days ie., on 24.08.07, the vehicle was again attended to under warranty replacing ECM. The complainant has given her express satisfying the services. On 12.11.07, the vehicle was brought to workshop of this opposite party for running repairs and same were attended under warranty.

10. On 27.11.07 the 3rd free inspection service was carried out by this opposite party. On 22.01.08, the complainant has taken her vehicle to the work shop of this opposite party for accidental/body repairs. Immediately on 25.02.08, this opposite party carried out paid service. On 11.03.08, opposite party carried out running repairs as paid service. During said services complainant did not point out alleged defects and neither opposite parties have found the same in the vehicle. The demand repairs of complainant were attended as per terms and conditions of warranty. The complainant has given her satisfaction in post service follow ups indicating perfect OK condition of vehicle and satisfying services by this respondent. On 21.03.08, the complainant pointed out defect of poor pick up and emitting of white smoke. This opposite party carried out Road Test in the presence of Service Engineer of the first opposite party and no problems was observed in the vehicle. The facts narrated above date wise are based on the history record of service carried out in respect of the vehicle purchased by the complainant. The opposite party has attended to all the defects/repairs pointed out by the complainant to the full satisfaction of her. The complaint is devoid of any merits and hence the complaint is liable to be dismissed.

The complainant and the opposite parties have filed Proof Affidavits along with Ex.A1 to A11 was marked on the side of complainant and Ex.B1 to B5 was marked on the side of the opposite parties.



The point for consideration is

Whether the opposite parties have committed deficiency in service? If so to what relief the complainant is entitled to?



ISSUE 1:

11. The case of the complainant is that he brought a Maruti Swift car on 24.5.07 but the car is not upto the mark and very often developed with various problems, mainly power reduction and emanating white smoke while the engine is raised. The 1st opposite party being the manufacturer advised the 2nd opposite party to trace out the real cause, but the complainant feels they are also in a dilemma and not in a position to come to a conclusion as to why this major disaster is prevailing in their car. The complainant is totally vexed with the attitude of both the opposite parties as they failed to satisfy the customer. Hence this complaint.

12. The case of the opposite parties is that the complainant is negligent in proper maintenance and handling of vehicle and resulting in its body repairs/accidental repairs several times. The complainant has satisfied and signed several records while taking delivery of the vehicle and now he cannot go back against his own acceptance in willing.

The admitted facts are:-

13. The complainant has purchased Maruti Swift car on 24.5.07, at the time of delivery of the above car, the complainant was fully satisfied and after taking a ride only, the above said car was delivered to the complainant. The admitted case of the complainant in the written argument is upto three months no major defects were noticed.

14. The fact that the 1st free service was rendered on 7.6.07 after 1st free service, at the request of the complainant the service rendered for rear bumper spot painting are all not disputed by the complainant.

15. As per Ex.B1, the second free service was carried out by the opposite party on 10.8.08 at 47712 kms. of playing vehicle. The allegation that after 1st free service major problem of emanating smoke and poor pulling were reported to the opposite parties are not proved by the complainant. As per Ex.B1 no such complaint was reported to the opposite parties. Only the Charger Assembly was changed during the second service. Soon after that second service on 20.8.07 the complainant’s vehicle was once again attended for accidental/body repairs by the 2nd opposite party. As per Ex.B1 the Demanded Repairs: - RHS MIROR CHANGE AND PAINTING

Again on 24.8.07 the vehicle was again attended to under warranty replacing ECM.

As per Ex.B1 the demanded repairs:-

1. CHECK ENGINE SMOKE

2. CHECK WIRING



Again on 12.11.07 the complainant had reported Engine Excess white smoke, poor mileage and poor pickup. But as per Ex.B1 there was no such problem but some minor parts were changed under warranty.

16. As per Ex.B1 the 3rd free service was due on 29.11.07. The following repair works were attended.

…..

1. Door rattling

2. Tyre rotation

3. Wheel balancing – 2 wheel (front) – Front

4. Wheel alignment

5. Gear shifting time jerking



17. As per Ex.A4 and B1 the vehicle was taken for Road Test Observation from 16776 km to 16811km (35km) and again with Senior engineer for 6 km. But there was no problem absorbed during the test road. Except the allegation that the vehicle is having the problem of emitting of white smoke, and power reduction there is no expert or documentary evidence to substantiate the averment of the complainant. The complainant having admitted that he has signed service records like Ex.B1 to B3 while taking delivery of the vehicle, it is not open to the complainant that the signature of the complainant alone has obtained in printed service records. The complainant has given express satisfaction in post service follow ups which rebutes the allegations of the complainant.

18. It has been held by the West Bengal State Commission DRC I (2009) CPJ 27 that Expert Evidence is necessary for the replacement of car or refund of price which is not available in the present case.

The authorities filed by the complainant are not in favour of the complainant.

In 2008(1) CLT (Page 596) the complainant, at no point of time has given a satisfactory report after repair of the car. But in the present case the complainant had agreed and signed as being satisfied.

In 2008 (1) CLT Page 975 the car was requested to be repaired on several occasions, and the car was all through out emitting smoke which defect could not be rectified by the opposite party. But the present case is not similar one.

19. Hence for the above said reason, we are not inclined to accept the contention of the complainant that there is a manufacturing defect in the car. But in our view the car was required to be repaired on several occasions which was also admitted by the opposite parties.. It is therefore ordered that the opposite parties shall arrange for a no defect service in the car and also extend the warranty period from the date of rectification.

20. In the result we direct the opposite parties to arrange for “NO DEFECT SERVICE” in the car No.TN 37 AU 9093 and also extend a warranty period from the date of rectification, to pay the repair expenses of Rs.13,000/-, to pay Rs.10,000/-as compensation for mental agony and to pay cost of Rs.1000 within a period of two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

K.S. Anand,

S/o. K.k.Subramaniam

No.2, Ramar Koil Street,

Ramnagar, Coimbatore – 641009. --- Complainant

Vs.

1. M/s. Sree Saradhambal Automobiles (P) Ltd.,

No.555,N.S.R. Road, Saibaba Colony,

Coimbatore – 641011.

2. M/s. Sree Saradhambal Automobiles (P) Ltd.,

Iyer Hospital Premisis,

Trichy Road, Singanallur,

Coimbatore – 641005.

3. M/s. Maruti Udyog Ltd.,

Regd. Office, Palam,

Gurgaon Road, Gurgaon – 122 015.

Haryana. --- Opposite Parties.


ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite parties to the complainant to pay the cost of new vehicle or take back the vehicle and replace it with a brand new similar vehicle, and to pay a sum of Rs.4,00,000/- as compensation for mental and physical stress encountered by the complainant and towards the damages and loss of time, and to pay Rs.10,000/- as cost of the proceedings.

The averments in the complaint are as follows:

1. The complainant is an Advocate by profession practicing at Coimbatore. The 3rd opposite party is a manufacturer engaged in the production, sales and service of automobile locomotives. The 2nd opposite party is a dealer and agent of third opposite party. The 1st opposite party is a branch of the 2nd opposite party. The complainant's vehicle "Maruti Esteem DI" bearing registration No. TN – 09 AH 9187 with Engine No. VJZIOWACDPSA0480106 and Chassis No. MA3FBG51S00420249 was manufactured by the 3rd opposite party and sold through its' dealer at Chennai Viz. M/s. Kiviraj Motors Ltd., No.623, Mount Road, Chennai – 600 006 to one P.M.M. Redy, Chennai on 1.11.2004. Subsequently in May 2006, the complainant purchased the said vehicle and by then the vehicle has run 8,500 Kilometers and the previous owner has done all the prescribed services at M/s. Kiviaj Motors, Chennai.

2. The vehicle was used by the earlier owner for 1 ½ years period. The vehicle warranty for a period of two years from the date of sale Viz. from 1.11.04 to 1.11.06 or 40,000 Kilometers which ever is earlier. The name change was effected in the Registration Certificate on 11.07.06. The vehicle encountered faults when it has run about 12,000 Kilometers. The pickup and mileage was poor, the vehicle strains to move at traffic signals and even some times abruptly stops.

The 1st opposite party effected few adjustments with the fuel delivery system (Fuel Pump) as the complainant was not prepared to tamper the originality of the vehicle at the first instance since the vehicle has run only for about 12,000 Kilometers by then. As the adjustments did not yield the expected result the 1st opposite party was constrained to remove the fuel pump on 27.6.2006 (under job Card No. 2680) and has forwarded the same to M/s. TVS and Sons for service since it was under warranty period.

3. After service, a new problem of engine jerking erupted at a particular RPM (Revolution per Minute) of 1500 to 2000 apart of two years was to expire on 1.11.06, the complainant has caused a communication dated 12.9.06 to be sent to the 1st opposite party intimating them about the problems the complainant was facing and requesting it to rectify the defects or to replace the vehicle since such a claim of the complainant is within the warranty period, but the 1st opposite party has not come forward to comply with the demands of the complainant till now. The demand was attended by 1st opposite party by adopting similar set of procedures carried out. In spite of the repairs carried out by the 1st opposite party at the first instance, the condition of the vehicle did not improve and still continues to be very poor.

4. Subsequently the 1st opposite party further dismantled the fuel pump 03 times and the vehicle was kept at the garage even for a month for a single service but could not rectify the faults in spite of removal of the fuel pump for 5 times for service with no result. This condition of the vehicle has been accepted by the 1st opposite party as evidenced by their own communication dated 12.10.06 to M/s. TVS and Sons, Coimbatore and a copy marked to this complainant. With no other alternative the complainant addressed a communication dated 31.01.07 to the 1st opposite party and marked copies to the 2nd opposite party and M/s. TVS and Sons about the dissatisfactory performance of the car during the warranty period itself. More over, the vehicle stops on the mid of highway and did not start on many occasions.

5. Subsequently, the persons from M/s. TVS, the General Manager and a Technician of the 1st opposite party inspected and tested the vehicle and agreed that the vehicle have problems. In spite of it, no effort was made to rectify the vehicle on a permanent basis or to depute a Qualified Service Engineer to rectify the defects.

This was also followed up by communication dated 17.5.07 by the complainant addressed to 1st opposite party and a copy marked to the 2nd opposite party. As a result the pump was removed for the 7th time and an alternate pump was fitted, the performance of which was also very poor and to add insult to the injury the diesel started to leak from the pump. The complainant took delivery of the vehicle under protest and further new problems have cropped up Viz. noise like earth moving equipment emanate from the engine and the vehicle did not move with air conditioner.

6. Finally on 3.7.07 the 1st opposite party caused an e-mail inviting the complainant to bring the vehicle for inspection and the complainant also agreed for the said course, provided the vehicle is inspected in the presence of the Maruti Service Engineer. Though the 1st and 2nd opposite parties accepted the demand, they failed to comply with the condition of the complainant and the car was tested and inspected without the Maruti Service Engineer. On the next day i.e., 31.7.07 a brand new fuel pump was fitted with the vehicle and few improvements were noted. The removal and refitting was done as the 8th time in a brand new vehicle that has hardly run 25,000 kilometers by then. Subsequently many phone calls were made about persistence of engine jerking at certain RPM and invited the attention of the opposite parties and further sent e-mail on 4.10.07 and on 28.11.07.

7. The vehicle further faced new sets of problem apart from older ones by the month of December 2007. The same was also communicated to the 1st opposite party on 27.12.07 and a copy marked to 3rd opposite party and it is not unlikely to evoke any response till date. On 24.12.07 when the vehicle was taken for mandatory Emission Check Certificate (Pollution Certificate), the vehicle exceeded the permissible emission norms. The fuel delivery systems and the engine systems alone contribute to the result of the pollution. The certificate is issued collectively by Tamilnadu Pollution Control Board and Tamil Nadu Transport Department and the very same Government Agency has given negative certificate to the complainants vehicle. In simple terms the vehicle is not roadworthy and unfit to ply on road as it exceeds the prescribed emission nor

ms and liable for penal action too.

8. Further on 14.01.08 when the complainant was proceeding the Tirupur in the instant vehicle it stalled suddenly at a place called Kanakampalayam (near Tirupur) on the mid of road and in traffic and did not start even after many ignition. The vehicle yields only 9.7.kilometers per liter of diesel on very good highway. The vehicle has done only 35,000 Kilometers and all the services were done by 1st opposite party. The 1st opposite party carried out only the stereotypic repairs and the solution was not good and durable. Further not even an element of effort was under taken by the 3rd opposite party who is responsible for manufacturing and selling the vehicle and by not attending the problem till now. The vehicle problem erupted during the period of warranty and continues to be not rectified till date and in contra the problems swell in numbers and strength.

The opposite parties ought to have replaced the vehicle with the new one at the earlier stage. The complainant vehicle was just attended on a trial and error basis without arriving at a definite diagnosis whether the fault is with the fuel pump or with the engine or other. The originality of the vehicle is greatly damaged and half of the time the vehicle lies with the first opposite party for service and the complainant is unable to use the same. Inspite of voluminous correspondence addressed by the complainant no sincere and progressive effort was undertaken by the opposite parties and which itself amounted to deficiency in service. The opposite parties have committed deficiency of service by not rectifying the faults and by not replacing the vehicle in warranty till date and by not giving any reply to the service request of the complainant and thus the opposite parties are jointly and severally liable for deficiency of service and unfair trade practice.

The averments in the 1st opposite party are as follows:

9. The 1st opposite party is the authorized service centre for Maruti cars which is at Coimbatore that is under the umbrella of Sree Saradambal Autos (P) Ltd., Coimbatore. The complainant in para no.5 of the complaint states that the vehicle 'Maruti Esteem DI' bearing registration number TN 09 AH 9187 was bought by the complainant from a third party as a second hand car. Then the complainant goes on to say the vehicle was with the first owner from 1.11.04 to May '06. (the complainant does not mention the date of purchase just 'May 2006") and submits that it was sparingly used. The complainant mentions in para no.6 that the kilo meter reading was 8,500 K.M.

In these days anything can be manipulated by anyone. These kilometer readings cannot be taken at face value. Also it is not to be accepted that just because a vehicle had run short distance does not make it well maintained – instead it is to be noted how the vehicle was run. This complainant is not qualified to give a certificate as to the condition of a second hand vehicle. Also when he buys it from a total stranger the complainant is not correct in stating that the vehicle was well maintained by the previous owner. All these are here say statements that are to be treated as irrelevant.

10. The 1st and 2nd opposite parties stand by the warranty without any doubt. But the warranty also has certain terms and conditions attached to it. When the vehicle is a second hand vehicle and is brought for the first time to any service centre for check-up, that is when they find the real status of the vehicle. The service centers are qualified as to state the true condition and previous maintenance of the said vehicle.

This should not be stated by the complainant as he is neither trained nor an authorized technician to certify the condition of any vehicle. The distance from 8500 km to 12,000 km was used by the complainant as per his statement and there is no mention of how it was immediately after he purchased the said second-hand vehicle. All the faults can be believed if the complainant had taken the said II hand vehicle immediately after purchase to a trained and authorized motor technicians and got it checked. Even then the liability squarely lies on the Maruti car dealer in Chennai M/s.Kiviraj Motors Ltd., and on the previous owner Reddy.

11. This complainant had purchased this said II hand vehicle from one Reddy at Chennai in May 2006 and the said vehicle was registered in the complaint's name only on 11.7.06. The previous owner had bought the said vehicle from a Maruti Dealer in Chennai. Then why is that the 2nd opposite party which has no role in the sale or manufacture or in part or portion of the said vehicle is cited as opposite party? It is objectionable and done with mala fide intentions.

The warranty on any Maruti service centre recognized by the 3rd opposite party. That work is being done by the 1st opposite party with sincerity and the 2nd opposite party has no role in the whole issue. It is not right on the part of the complainant to drag in parties with no issue to settle and harass them and cause them mental agony for reasons best known to him.

12. Furthermore the complainant finds fault with the fact that the said II hand vehicle was inspected by the technicians from M/s. TVS, Coimbatore and the technicians from the 1st opposite party. The complainant could very well have arranged for the inspection of the said vehicle by a neutral agency that is qualified to do the job such as the RTO, Inspection team of technicians. It was not by the complainant as he knew the truth would emerge and it was wanted by him. It is unfortunate a practicing advocate also being the complainant files a complaint and says he bought the said vehicle from one Reddy in para no.5 and then in para no.16 the 1st opposite party becomes the seller as per his complaint.

The confusion found in all the pass prove that the complaint is false and is being filed with a hidden agenda. Then he mentions deficiency of service and it has not been justified in any of the statements he has made. All the times he had taken the II hand vehicle with some complaint to the 1st opposite party it was always attended to by the best technicians trained by Maruti. This also has been admitted by the complainant.

13. The said vehicle was purchased at Chennai by one Reddy from M/s. Kaviraj Motors Ltd., Chennai who are Maruti Car Dealer on1.11.04. Thereafter this complainant bought the vehicle from this Reddy at Chennai in May '06. The cause of action arose at Chennai as per the statements of the complainant him-self. Also the complainant does not mention as to where and how the payment was made. There is no mention of this previous owner one Reddy coming to Coimbatore and making a sale. It is not maintainable before this Honourable Forum as far as jurisdiction is concerned. Also there is no deficiency of service by the 1st opposite party as they always attended to all the demands made by this complainant. The complainant clearly states in all the paras of the complaint that the 1st opposite party attended to all the complaints of his.

14. As of now it is requested that a neutral agency's technicians be permitted to inspect the said vehicle in all aspect and give the finding. That has to include whether or not the said vehicle was being used currently or stationed in the garage. This complaint is most confusing and misleading to say the least. This neutral agency's technicians could shed light on a lot of false statements made by the complainant. As far the 2nd opposite party is concerned they are Maruti Car dealers at Coimbatore and are no way connected Esteem DI bearing registration number TN 09-AH 9187 and are truly shocked and pained at this kind of harassment by the complainant. They are being unnecessarily dragged into this complaint with no rhyme or reason.

The averments in the of the 3rd opposite party are as follows:

15. The transaction in question in so far relating to answering opposite party is concerned is without any consideration and beyond the expiry of warranty. The present complaint is barred by limitation and deserves to be dismissed on this ground. The liability of answering opposite party under the warranty which is part and parcel of the sale contract is specific as set out under clause 3 of the owner's manual and service booklet. The present complaint is without cause of action against the answering opposite party.

The complainant has no case for deficiency in service or unfair trade practice as defined under section 2(1)(0) and ® of the Consumer Protection Act, 1986 (the Act). the present complaint is bad for non-joinder of parties for the reason that the complainant has admitted that the vehicle in question was serviced at M/s. Kiviraj Motors, Chennai & the same was also attended by TVS & Sons Ltd., Coimbatore, but did not make them party to complaint and bad for mis-joinder of parties for the reason that the complainant did not make any specific allegations against answering respondent or made any claims. On this point alone the complaint has to be dismissed by this Forum or the name of answering respondent be deleted from the array of parties.

16. The compensation U/S 14 (1) (d) of the Act can be awarded to the complainant for any loss or injury suffered by the complainant due to the negligence of the opposite party(s). The complainant has failed to place any material on record in order to substantiate his claim for compensation against the opposite party. The complaint deserves to be dismissed on this ground also. If there has been any complaint the same would have been raised by first owner during services. The complainant himself has opined that the previous owner of vehicle in question has availed all the prescribed services.

17. The 1st opposite party has attended the vehicle in question on 28.6.2006 and observed fuel injector and fuel pump required calibration. Since the said items are bought out item, the same had been calibratedby its manufacturer M/s. T.V.Sundaram Iyengar & Sons Ltd., Coimbatore under warranty. The 1st opposite party even wrote a letter dated 12.10.06 to Mr.Shankar (Warranty Coordinator) of M/s. T.V.Sundaram Iyengar & Sons Ltd., Coimbatore conveying the concerns of complainant in respect of fuel injector and pump. being their manufactured items & got the same repaired. It is not true to state that the vehicle in question did not improve and continues to have problem. Complainant has given his satisfaction in post service follow-ups indicating his total satisfaction with regard to services and vehicle.

18. The warranty period of vehicle has already been expired on 31.10.06 but even then the opposite party no 1 extended his services to satisfy the complainant on goodwill basis. Accordingly the vehicle in question was inspected by TVS engineers and the 1st opposite party on 31.07.2007 the complainant has given his written satisfaction vide letter dated 31.07.2007 and wanted some more time to test the same. Rest of the contents of para is matter of record and complainant is put to strict proof of the same.

As per the vehicle history provided by the 1st opposite party the complainant has taken his vehicle to the workshop of the 1st opposite party 0n 12.10.07 and 21.12.07 after plying 38187 kms. It is pertinent to submit that the complainant has plied 38187 kms within three years of purchase indicating its extensive use.

19. Further if the vehicle had been suffering with manufacturing defects, the vehicle would not have been able to ply so many thousands of kilometers. the vehicle as on 24.12.07 had been plied in excess of 38187 kms and completed more than 3 years after purchase. The obligation of answering opposite party under warranty is limited to 24 months and 40,000 kms which ever comes first. Admittedly opposite parties have fulfilled their obligations as required under warranty. It is the responsibility of complainant to upkeep his vehicle to road worthy standards as stipulated by government.


The complainant is trying to shift his liability on opposite parties to make unjustified gains. The complainant's vehicle was last reported to service as per records with the 1st opposite party is on 21.12.07. The complainant subsequently did not report any problem in vehicle to answering opposite party. The complainant availed the services of private mechanic at his free will, if any. The vehicle in question has already crossed warranty tenure and the opposite parties are not liable whatsoever in any manner towards complainant.

20. The complainant is suppressing the facts and misleading this Forum making frivolous claims qua allegations, without lacing material on record. As already explained in above paras, according to complainant the 1st owner has availed all the prescribed services from M/s. Kiviraj Motors. Subsequently whenever complainant has come up with any problem in the vehicle, the same was attended according to warranty terms and conditions. The complainant has given his express satisfaction on several occasions in post service follow-ups and also indicated the same in his correspondence. The complainant is juggling facts to his advantage and placing before this Honourable Forum to make unjustified gains. The vehicle in question covered 38187 km as on 21.12.07 as per vehicle history with the 1st opposite party. The complaint is falsely indicating 35000 km and more so the vehicle has already crossed more than three years since purchase.

21. The opposite parties discharged their obligations as per terms and conditions of warranty. It is emphatically denied that the problems erupted during the period of warranty and continues to be not rectified till date and in contra the problems swell in numbers and strength. The opposite parties have discharged their obligations and more so under warranty the only obligation of opposite party is to repair or replace parts but not replace the vehicle as alleged by complainant. There is no point of deficiency in service by opposite parties and complainant is making frivolous allegations by suppressing facts from this Honourable Forum. The complainant in para 5 of his complaint has admitted to have purchased the vehicle from one Mr.P.M.M.Reddy and he is not the 1st owner.

22. The complainant himself has admitted that the 1st owner had availed all the prescribed services from M/s. Kiviraj Motors and nothing has been averred with regard to alleged defects during said period indicating perfect ok condition of vehicle. The opposite parties attended complainants vehicle at all times and discharged their obligations truly. There is no point of replacing vehicle by opposite parties and are neither jointly or severally liable in any manner.

The complainant has failed to make any case against opposite parties and is fit one to be dismissed by imposing exemplary costs. The complainant has no cases with in the provision of the act and is not entitled to any compensation as claimed. The complaint in question is devoid of merits. The complainant is not entitled to any relief. The complainant has filed a frivolous and vexatious complaint and has no case for deficiency in service or unfair trade practice against the answering opposite party. The present complaint is therefore liable to be dismissed the costs.

23. The complainant and opposite parties have filed Proof Affidavit along with Ex.A1 to A36 was marked and Ex.B1 to B3 were marked on the side of the 3rd opposite party and the authorities on the side of the complainant and opposite parties.

The rulings cited on the side of the complainant

1. II(2007) Orissa State Commission Page 130

2. 2006(3) CTC Page 74 Supreme Court of India

3. I (2008) CPJ 19 National Commission

4.

The point for consideration is

1. Whether the opposite parties have committed deficiency in service? If so to what relief the complainants are entitled to?

Issue-1

24. The case of the complainant is that he has purchased a Maruti Esteem D1 car from one Mr.Reddy in the month of May 2006 for his own use, the vehicle is covered under the manufacturer’s warranty the vehicle faced problems and the same was given for servicing with a first opposite party who is a authorized service dealer, the vehicle was attended by the 1st opposite party about 8 times in a span of 14 months from the date of his purchase but there is no progress but in contra certain new problems erupted and the vehicle became unfit to ply on road and therefore the complainant has stored his car at his garage. The 1st and 2nd opposite parties have committed deficiency of service by not rectifying the faults and 3rd opposite party has committed deficiency of service by not replacing the vehicle during warranty period. Hence this complaint is filed for replacement of a new vehicle and for other reliefs.

25. The case of the 1st and 2nd opposite parties is that they are one of the Maruti Service station at Coimbatore, they did not sell the vehicle to the complainant and therefore they are unnecessary party and they have discharged all the warranty obligations to the satisfaction of the complainant. The first opposite party has done all the service under the warranty to the complainant till date and therefore no deficiency occurred.

26. The case of the 3rd opposite party is that the complaint is barred by limitation, there is no cause of action and the complaint is bad for nonjoinder of necessary parties. The vehicle has crossed warranty tenure and the 3rd opposite party is not liable for whatsoever in any manner towards the complainant. The problems in the vehicle were attended according to warranty terms and conditions. The only obligation of the opposite party is to repair and replace the part but not to replace the vehicle.

27. The admitted facts are:- The complainant purchased the vehicle from one P.M.M.Reddy, Chennai for a sum of Rs.4,52,500 and the name change were effected with the registration certificate and the original of the cash receipt and Xerox copy of the registration were marked as Ex.A1 and A3 respectively. It is also admitted that the manufacturer warranty is effective to the subsequent owner of the vehicle as found in Ex.A2, Ex.A31 and as per counter of opposite party 1 and 2 in para 5 and the complainant is also entitled to the benefits of warranty.

28. Though the complainant is the 2nd owner and has purchased the vehicle during the warranty period whether he can step into the shoes of the 1st owner?

The manufacturer warranty Ex.A2 and A31 are unambiguously clear. Page 22 clause 9 reads as "even if ownership of the vehicle changes, the remaining period of warranty is effective for the next owner".

Therefore it is clear that the subsequent purchasers are also covered under the benefits of manufacturer warranty. The terms of the warranty is clear that the subsequent purchases are ratified and further more in the instant case the OP's admit that the complainant's vehicle was attended to warranty repairs on many occasions. The job cards filed by the complainant also refers to the warranty services and therefore the complainant can very well sustain the case for himself as complainant.

As per the warranty policy of the company there exists a direct relationship between the manufacturer and the owner of the vehicle even the subsequent purchaser and therefore the complainant is capable to step into the shoes as the owner of the vehicle and can claim warranty. Moreover complainant has invoked the warranty clause in Ex.A5 and the same is also agreed by the 1st opposite party by their communication Ex.A7. Nevertheless the OP's do not deny that the complainant is not entitled to the warranty benefits and service records throughout refer to the warranty and running repairs done to the complainant's vehicle.

29. Why the 1st owner and the Chennai dealer is not made party to the proceedings and why the earlier documents were not filed?

It is admitted case of both sides that the earlier owner Mr.P.M.M.Reddy was the previous owner. Once he sold the vehicle he has nothing to with it. Since the manufacturer warranty Ex.A2 and 31 provides the scope for the customer to step into the shoes as the owner and can avail the benefits under the same. The warranty is provided only by the manufacturer ie. the 3rd OP to its customer and 1st and 2nd OP are the service dealer. Any manufacturing defect shall squarely lies with the 3rd OP being the manufacturer of the vehicle. Therefore for the warranty claim the previous owner and the dealer at Chennai are not necessary parties to the proceedings. Ex.A31 is the user manual which has the details of the service done by the previous owner P.M.M.Reddy as per the company guidelines.
Expert Opinion:-

30. A defect arises in the normal usage of vehicle and can be removed after its service/repair. A manufacturing defect on the other hand is a defect from the very beginning and cannot be removed even after repairing the vehicle. The main allegation of the complainant is that inspite of repairs carried out by the 1st opposite party the condition of the vehicle did not improve and still continuous to be very poor. On the side of complainant One Mr.P.Sengottayan, BE, automobile engineer and Mr.K.N.Senthil Kumar, DME automobile engineer were examined.



31. Mr.P.Sengottayan, BE with 21 years of standing experience in the automobile field is examined as PW2. PW2 is of the opinion that the vehicle was frequently serviced by 1st OP. The vehicle has heavy engine noise, engine jerking, RPM fluctuation, engine stall, poor pickup, and also that the vehicle emitted thick black smoke constantly. Further the expert is of the opinion that if the vehicle if used continuously with the same set of problems it may cause further damage to clutch, gear box and transmission problems and the break down is eminent and that the vehicle is more over unfit to ply on the road as it is polluting.

Mr.K.N.Senthilkumar, DME with a standing experience of 12 years in the automobile field is examined as PW3 and he speaks that he attended the break down service on 14.1.08. Previously he worked with M/s.ABT Industries, Coimbatore an authorized Maruti Dealer, he is also of the opinion that the vehicle have problem of heavy engine noise, engine jerking, RPM fluctuation, engine stall, poor pickup and also that the vehicle emitted thick black smoke constantly.

32. Further experts were not crossed examined by the opposite parties and no rebuttal evidence was also let in thus admitting the entire case of the complainant.



33. One Mr.V.Vishnu Shankar Raja, the Sales manager of the 1st OP was examined by 1st and 2nd opposite parties. He is only the Sales Manager and cannot be a competent expert to speak about the present case.


One Mr.Gopalakrishnan, BE, Area Service Manager with the 3rd OP was examined, he is only a Mechanical engineering and cannot be claimed to be a competent expert. Furthermore he did not deny any of the opinion rendered by PW2 and PW3 and also did not let in any rebuttal evidence.

34. In the present case the vehicle was attended by the 1st opposite party under warranty on many occasions to attend to the problems with the vehicle and the job cards discloses that the nature of services as running repair and the job cards were produced as Ex.A4, A12, A16, A21 and A25. It is further evidenced that the vehicle faced problems during the period of warranty as per the communication issued by the complainant dated 12.9.06 to 1st opposite party as per Ex.A5 and the corresponding AD card as Ex.A6. The 1st opposite party by their communication dt.12.10.06 categorically admits that the vehicle faces problem of fuel mileage, engine noise and engine jerking.


The relevant portion of Ex.A7 is given below:-

……..

“As you are already aware we have checked all the parameters according to the specifications of MUL, after that we have send the fuel pump to you for servicing and you have charged Rs.1077.00, but still fuel average has not improved rather the noise level and jerking considerably increased due that customer got more dissatisfied”….

35. The complainant has addressed communications to 1st opposite party and marked copies to 2nd opposite party and M/s.TVS and Sons and is produced as Ex.A8 and the corresponding AD cards as Ex.A9, 10 and A11 and under which the complainant has invited the attention of the opposite party to set right the problems faced in the vehicle. Further followed by a communication dated 17.5.07 by the complainant to the 1st opposite party and a copy marked to the 2nd opposite party reminding that the vehicle faces a new problem of engine stall on the mid of the high way apart from the older problems and the copy of the communication is produced as Ex.A13 and the AD cards as Ex.A14 and A15. Various e-mail communication were exchanged between the complainant and the opposite party's and the copy of the communication are produced as Ex.17, 18, 19, 20, 23 and 24. Ex.A22 is the letter dt.31.7.07 by the complainant to 1st opposite party and copy to M/s.TVS & Sons, Coimbatore about the feedback of the complainant after the new pump has been fitted with the vehicle, the complainant accepted that many problems were set right for the present and that he reserved his rights to report the exact nature of the performance of the vehicle as he test rode only few kilometer and further that the problem of engine stall erupted only occasionally and that he needs time to report the same. The complainant has further informed the persistence of the problem with the vehicle and requested the 1st opposite party to make it ready by various e-mail communications and the copies are marked as Ex.A23 and 24.

The job card dt.1.11.04 produced as Ex.A25 also refers to the vehicle reported to problems of engine jerking, engine stall and poor mileage and the previous history dt.21.12.07 and 31.7.07 are also referred to in it. Emission control certificate Ex.A26 dt.24.12.07 for the complainant vehicle shows that the vehicle exceeded the permissible limit of emission and therefore the vehicle can be said to be unfit to ply on the road as it is polluting. The legal notice dt.27.12.07 issued by the complainant to 1st opp.party and the copy marked to 3rd opposite party calling upon them to attend to the defects in the vehicle and about the pollution caused by the vehicle is marked a Ex.A27 and the corresponding AD cards as Ex.A28 and 29. There was no reply to the notice. The bill dated 14.1.08 referring that the vehicle broke down is produced as Ex.A30 and 31, the user manual book discloses that the previous owner has done the services with M/s.Kiviraj Motors, Chennai promptly.

During the pendency of the litigation the 1st opposite party addressed a communication dt.6.2.09 to the complainant apologizing for the casual attitude shown in earlier service and for the problem of poor mileage. The vehicle of the complainant stood with the 1st OP for about 6 months and 2 days in a span of 14 months apart from regular maintenance proving the case of the complainant the vehicle had problem and was frequently with the 1st OP. Further Ex.A7 and 36 are the clear admission by the 1st OP on the case of the complainant and too when the case was under sub-judice. 1st OP has admitted that they have attended to the vehicle for problems and their own communication admits that the vehicle have problems inspite of constant effort, which only shows that the vehicle is defective, beyond repair as services did not yield any useful result.

36. The complainant refutes the version of the 3rd OP affidavit and that Ex.B3, the extract of the user manual relates to petrol model of some other vehicle and not the complainant's vehicle which is a diesel one. Further the complainant has filed the original of the user manual pertaining to the instant vehicle has marked the same as Ex.A31 which refers only that the kilometer service is recommended.

37. The complainant has examined as PW1 and has let in expert evidence of one Mr.P.Sengottayan a BE (Automobile Engineering) automobile expert having a standard experience of 21 years examined as PW2 and a mechanic named K.N.Senthilkumar, DME with a standing experience of about 12 years was examined as PW3. The 3rd opposite party did not choose to cross examine the experts and they did not also let in rebuttal evidence with an automobile expert and therefore it amounts to admission in total. Nowhere the opposite parties deny that the fuel pump was attended to for 8 times and that the vehicle was frequently serviced which is also a clear admission.

38. The first opposite party has not sold the vehicle to the complainant as stated by the complainant in para 16 of the complaint. In fact he is a second owner and the first owner Mr.Reddy has purchased the vehicle from M/s.Kiviraj Motors Ltd. Chennai. The first opposite party is the authorized service centre for Maruti Cars which is at Coimbatore and the control of Shree Saradambal Automobiles Pvt. Ltd. Coimbatore. The complainant has repeatedly stated in the complaint that his demands were always met by the technicians of opposite parties 1 and 2. The extract of complaint para 7 is also given below:-


“The demand was attended by 1st opposite party by adopting similar set of procedures carried out. Inspite of the repairs carried out by the first opposite party at the first instance, the condition of the vehicle did not improve and still continues to be very poor”.


39. Hence, we are of the view that the complainant has purchased the vehicle from one Mr.Reddy, the vehicle encounted faults when it has run about 12000 kms. after service a new problem of engine jerking erupted the demand was attended by the opposite parties No.1 insptie of repairs carried out by the 1st opposite party the condition of the vehicle did not improve and still continuous to be very poor the vehicle problem erupted during the period of warranty, the service work was being done by the 1st opposite party properly but there is no progress but in contra certain new problems erupted and the vehicle became unfit took ply on the road and therefore the complainant is unable to use his car. Hence the opposite party No.3 has committed deficiency in service by not replacing the vehicle during the warranty period. Hence the complainant is entitled to get necessary relief from 3rd opposite party.

40. The authorities filed by the complainant are all in his favour.



41. In the result, we direct the opposite party No.3 to take back the vehicle bearing No. TN 09 AH 9187 and replace it with a new similar vehicle or pay the cost of the vehicle ie.Rs.4,52,500 and to pay a compensation of Rs.10,000 for mental agony and cost of Rs.1000 within two months from the date of this order

Maninder Singh son of Sh.Satpal Singh Proprietor M/s. Excelsior Public Relations, 1043, Dyal Nagar, Ghumar Mandi, Civil Lines, Ludhiana.

Versus

1. M/s. Maruti Suzuki India Limited, Palam Gurgaon Road, Gurgaon-122015 through its Chairman/Chief General Manager.

2. M/s.Swani Motors Private Limited authorized dealers for Maruti Udyog Limited, showroom no.12, Feroze Gandhi Market, Ludhiana through its Manager.

3. M/s.Gulzar Motor Limited, G.T.Road, Dholewal, Ludhiana -141 003 through its Managing Director.

4. M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana-through its Manager.

5. Satish Bharadwaj, Works Manager, M/s.Gulzar Motors Limited, Aarti chowk, Ferozepur Road,Ludhiana.

….Opposite parties.
O R D E R

Complainant is doing business for his livelihood of public relations under the name and style of M/s.Excelsior Public Relations. He purchased Maruti Swift Diesel VDi car bearing No.229015, Engine No.1012099 with temporary no.PB-10BR (Temp.) 5911, Model:2007 on 02.05.2007 vide Invoice no. 6202-KRDCD07-280154 from OP.2-M/s.Swani Motors Private Limited, Ludhiana by paying 510059/- as cost of the vehicle. That complainant received a letter on 18.08.2007 from OP.2-M/s.Swani Motors Private Limited, Ludhiana that a fault of some aberration in an engine component has been noticed by the OP.1- due to which the company has launched the free inspection of the vehicles in order to minimize the inconvenience to the customers and as a proactive measure and to check-up the vehicle.

That the showroom/workshop of OP.no. M/s.Gulzar Motors limited which is also an authorized dealership of OP.no.1 is near to the house of the complainant as such he took his car to the said workshop on 29.09.2007 for the routine checkup and to rectify some minor fault of air conditioner of the vehicle. The complainant also took along with him the letter dated 18.08.2007 and had shown the same to the works manager of the OP.4- M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana for free checkup/inspection of the vehicle as per the said letter.

The works manager honored the commitment made in the said letter and asked the complainant to leave his vehicle there at the workshop for necessary inspection and to take back the vehicle in the evening after getting the inspection done from the engineers of the company, but no job card was issued to the complainant despite his demand for the same.

When the complainant went to the workshop in the evening, he has been told by the officials of OP.4- M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana that the engineers of the company have not come today and as such, he was asked to come on Monday evening i.e. on 01.10.2007. The complainant visited M/s.Gulzar Motors limited, Aarti Chowk Ludhiana on 01.10.2007, the complainant received a phone call from one Ashok Kumar from M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana, who asked him to pickup his car from the agency.

2. The complainant along with his friend went there and he was astonished/shocked to see the condition of the vehicle. When he saw his car, he found that the front original bumper of the car was replaced by some other bumper and was hanging from the right side, which was damaged from the right side and the rear bumper, driver seat door, rear door of driver side, quarter panel for the vehicle were found to be repainted and the left fender also seems to be replaced and there was dent on the bonnet of the vehicle and the radiator also looks like pushed inside. All these things clearly indicated that the car of the complainant was used by the agency in its own use and the vehicle had met with some accident at the hands of the officials of the OP.no.4- M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana and this thing was very well within the knowledge of the agency and its officials, but they tried to befool the complainant.

The complainant raised a protest against the misdeeds and mishandling of the officials of M/s.Gulzar Motors limited, at which said Ashok Kumar has called Gurkirat Singh owner of M/s.Gulzar Motors limited but he also failed to give satisfactory reply to the complainant and rather started abusing the complainant and his friend and they tried to give delivery of the vehicle forcibly to the complainant, but the complainant refused to take back the vehicle and told them that he will file complaint against them, at this they physically assorted the complainant and they pushed him out of the showroom by hurling abuses on him, the works manager refused to meet the complainant, even they threatened the complainant, if the matter is highlighted and also openly told the complainant to do whatever possible and they did not bother and care as they are well connected with the police and politicians and also with Sh.Jagdish Kattar, Managing Director of OP.no.1. The complainant made efforts for the redressal of his complaint, but all in vain.

That he made E.mail on 09.10.2007 to Mr.Jagdish Khattar, of OP.1, but to no avail. Lateron he submitted complaint to Senior Superintendent of Police, Ludhiana but that also did not bear any fruit. Then on 19.12.2007 complainant was forced to take delivery of the vehicle by paying Rs.16300/- to the OP.3 the complainant took the delivery under protest and he also against sent a complaint through e-mail on 19.12.2007 to Sh.Jagdish Khattar, Managing Director of OP.1., but to no effect. Complainant is not at all satisfied with the performance of the vehicle, as the engine of the vehicle gives knocking and pickup of the vehicle is very bad. Hence, this present complaint under section 12 of the Consumer Protection Act, 1986.

3. OP.No.1 took in preliminary objections that the complaint is not maintainable as exclusive public relation engaging in commercial activities bought the car in question; that the complainant has filed a frivolous and vexatious complaint on false allegations without any material on record, it is misconceived, groundless and unsustainable in law; that the complainant has failed to set out any case for deficiency in service or unfair trade practice against the OPs; that the complaint is without cause of action; that the relief asked for by the complainant fall outside the ambit of causes (a) to (i) in section 14(1) of the Act and beyond the scope of specific terms and conditions of warranty, which is not permissible in law. On merits, it was averred that the car in question was brought to the workshop of OP.4 on 23.08.2007 for 3rd free service and general check up which shows that the vehicle in question was in perfect road worthy conditions. It is emphatically denied that the complainant has taken his vehicle to the workshop of OP.3 for routine checkup and to rectify some minor fault of air conditioner of the vehicle on 29.09.2007; that the complainant is making false and frivolous allegations by suppressing facts from this Forum.

The complainant has taken his vehicle to the workshop of OP.3 for body repairs and denting & painting job on 30.09.2007. The OP.3 after prepared the repairs estimate and started the denting painting jobs. After the denting and painting job work was carried out by OP.3 complainant acknowledged the same by signing the delivery note (jointly with dealer) on 19.12.2007 & took delivery of the vehicle. The complainant has distorted the facts and making frivolous allegations in order to mislead this Forum to gain unjustified benefits. It is emphatically denied that the OP.3 has used the vehicle or the same met with an accident in their custody and got damaged in any manner. All this is an afterthought of complainant and well cooked concocted story to make a case out of it.

The signing of delivery note jointly with dealership acknowledging the perfect, scratch less condition of vehicle indicate perfect ok condition of vehicle on 19.12.2007; that the complainant has taken the delivery of the vehicle after being fully satisfied; that the complainant paid amount towards the job works carried out by OP.3 which they have mutually agreed before hand; that the complainant has put no remark of protest in delivery note; that the OPs being manufacturer of car in question are responsible for after sale warranty service only ; that the complainant sought for body repair on 30.09.2007 which are not covered under warranty; that the it is reiterated that the complainant has given his vehicle for denting and painting to OP.3 on payment terms settled between them; that he paid no amount to this to OP for job undertaken on 30.09.2007 are done; that the vehicle has no manufacturing defect and vehicle for workshop of OP.3 for getting denting and painting job done on 30.09.2007; that the averment of not willing to keep the vehicle in question after plying 22706 kms and demanding replacement of vehicle/refund of vehicle price together with compensation, are untenable and with malafides intention; On the otherhand OPs.3 to 5 submitted that complaint in question is car was not commercial activities and commercial purpose; that complainant is wholly misconceived, groundless and unsustainable. All other allegations made in the complaint were denied by the OP and prayed for dismissal of complaint with costs.

4. Both the counsel for the parties adduced their evidences. We have perused the file and gone through the record. The counsel are stood heard.

5. The complainant argued that he received a letter from OP.2-M/s.Swani Motors Private Limited, Ludhiana in which letter they have mentioned that that a fault of some aberration in an engine component has been noticed by the OP.1- due to which the company has launched the free inspection of the vehicles in order to minimize the inconvenience to the customers and as a proactive measure and to check-up the vehicle.

The complainant further argued he took his car to OP.4- M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana on 29.09.2007 for routine check-up and to rectify some minor fault of air conditioner took letter with him to get free check-up/inspection, which will be done under warranty period. The complainant also argued that he took this letter alongwith him and went to the showroom OP.4- M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana which is near to his house on 29.09.2007 to rectify the some minor fault of air conditioner of the vehicle.

The complainant argued that the works manager asked him to take the vehicle in the evening. So that instructions can be got from the engineer of the company. The complainant argued that no job card was issued to him despite demand for the same. That the complainant went in the evening to collect the vehicle and OP told that the engineer of the company has not come. He was asked to come on Monday ie. 01.10.2007. The complainant argued that he visited OP.4- M/s.Gulzar Motors, Aarti Chowk, Ludhiana on 01.10.2007 but still the vehicle was not ready and again asked to come on 02.10.2007. The complainant argued that he received a call from Ashok Kumar from M/s.Gulzar Motors limited, that the vehicle was ready and to pickup his car.

But he was shocked to see the condition of his vehicle and found that the front original bumper of the car was replaced by some other bumper and was hanging from the right side, which was damaged from the right side and the rear bumper, driver seat door, rear door of driver side, quarter panel for the vehicle were found to be repainted and the left fender also seems to be replaced and there was dent on the bonnet of the vehicle and the radiator also looks like pushed inside.

6. Complainant further added that his car was used by the agency in its own use and the vehicle had met with some accident at the hands of the officials of the OP.no.4- M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana and this thing was very well within the knowledge of the agency and its officials, but they failed to give satisfactory reply to the complainant and rather started abusing the complainant and refused to take back his vehicle. Complainant argued that he was forced to take the delivery of the vehicle after making the payment of Rs.16300/- on 19.12.2007. Complainant also made a complaint to OP1- M/s. Maruti Suzuki India Limited, Palam Gurgaon Road, Gurgaon.

7. Complainant argued that they have reported to the police about their misbehaviors with him about OP harassment and abusing, but to no use.

8. OP argued that the complainant had brought his vehicle to OP.3- M/s.Gulzar Motor Limited, for body repairs and denting & painting job on 30.09.2007. OP argued that proper repairs estimate and denting and painting etc was prepared and job card was carried by OP.3. Further said that the complainant also signed the delivery note, jointly with dealer on 19.12.2007 & took vehicle after full satisfaction by paying Rs.16300/- Ex.C7 against denting, painting and body repairs and without any protest on the duly signed note.

9. OP argued that the there was no manufacturing defect in the vehicle. It is also mentioned that the record of the OP proves that the vehicle was perfect and in working conditions. OP argued that job card was issued to the complainant.

10. From the facts it is clear that OP.2- M/s.Swani Motors Private Limited had written letter to complainant on 18.08.2007 in which they have offered to get rectify an aberration in an engine component, if any, warranty free of charge and the complainant instead of going to M/s.Swani Motors Private Limited he went to M/s.Gulzar Motors limited, Aarti Chowk, Ferozepur Road,Ludhiana, for check up and rectification of defects in the car.

It is to mention here that the complainant has also signed the delivery note jointly with the dealer on 19.12.2007 and took the delivery of the vehicle perfectly in o.k condition and he has not put any protest note on the delivery receipt on 19.12.2007 and also paid Rs.16300/- Ex.C7. The complainant could not prove that the vehicle met with an accident in the custody of the OP and there was nothing on the record with regard to vehicle met with an accident during the repair of the vehicle in the custody of OP.

11. From the facts and figures there is no any proof that the car of complainant met with an accident when the vehicle was in the custody of the OP. Had he noticed anything objectionable while taking the delivery of the vehicle he should have put the protest note on the delivery note itself which the complainant has not done and took the vehicle by paying Rs.16300/- for the repair and denting, painting. It means that the complainant took the vehicle quite in working condition and satisfactorily conditions from OP. Hence Fora finds no merit in the complaint the complaint stands dismissed.

I am owner of SX 4 car bearing registration No. HR-26-AP-2632. Unfortunately, my car met with accident on 20th August, 2009 and has been taken to Maruti Service Masters at Okhala, New Delhi for repair. My Insurance Company M/S Reliance Insurance promptly approved payment of repair cost of the vehicle.

At the time of handing over of the vehicle to Maruti Service Masters at Okhala, I was advised that the vehicle would be repaired within 15 days if the insurance Company does not put any problem.

However, despite prompt approval of insurance Company, the vehicle has not been repaired till date. On my personal visit, I was advised that three vital parts from Maruti Suzuki Spare Parts Division are yet to to received. Hence, the delay. I approached Mr. R.S. Yardava, Incharge, Stores at Maruti Service Masters, Okhal who informed me that despite his best efforts, parts have not been receivied from Maruti Suzuki Spare Parts Division. Therefore, I spoke to Mr. Mukherjee, Sr. Manager, Spare Parts Division of Maruti Suzuki India Ltd. who assured me that the parts would be supplied to Maruti Service Masters at Okhala within two days. However, the parts have not reached so far resulting in detention of my vehicle at MSM for about two months.

I am spending Rs. 1,000 or more per day on hiring of taxi besides paying of salary to the driver amounting to Rs. 10,000/p.m. Thus, I have already suffered loss of more than 60,000/ even after the period of 15 days during which I was promised that the vehicle would be repaired.

Therefore, I demand from Maruti Suzki India Ltd.:

1. My vehcile should be repaired and handed over to me immediately.
2. A compensation of Rs. 1,000/ per day + salary of idle driver (Total Rs. 40,000) per
month should be paid to me for the period beyond 5th September 2009 by which date the
vehicle was promised to be delivered to me.
3. The Company must initiate disciplinary action against those reponsible for delay in supply
of spare parts to Maruti Service Masters, Okhala.

Thanking you,


Yours faithfully,


(Smt. Kiran Shukla)
9958893484

Smt. Har Kiran Thakur wife of Shri B,S Thakur, resident of Near Carmel Convent School, Rani Ka BaGH, Shimla Road, Nahan, Distt Sirmaur H.P.



… Complainant.

Versus



1 Maruti Udyog Limited through its General Manager ( Service department) Palam- Gurgaon Road, Gurgaon, ( Haryana)



2. D.D Motors, 81-A Rajpur Road, Dehradun-248001, ( Utranchal) through its Manager.





…Opposite Parties.







O R D E R:



This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that she purchased a new Maruti Car from the OP No.2, on, 06.07.2005, manufactured by the OP No.1. She avers that after covering distance of 25000 kilometers, it was noticed that there was some problem with the engine oil. She immediately brought the aforesaid fact to the notice of the OPs, and also lodged a written complaint on, 12.06.2006.


Thereafter, the car of the complainant was checked by Works Manager, who after inspection informed that the car is now in perfect condition. However, after covering about 3000 kilometers, when the car was checked by M/S Aggarwal Motors, the engine oil was again found less, hence she again filled up the engine oil upto maximum capacity and intimated about the said defect to the OP No.2. The complainant further proceeded to aver that thereafter the OPs were requested on several occasion to inspect the vehicle and carry out necessary repairs, but of no avail. Hence, it is averred that there is apparent deficiency in service on the part of the OPs, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OPs, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, that there is no deficiency in service and that there is no cause of action. On merits, it is contended on behalf of the OP No.1 that the complainant took her vehicle to a Maruti Authorized Service Station for routine maintenance service and they cannot undertake warranty repair or replacement. It is further contended that the vehicle was sold to the complainant as per terms and conditions of warranty, hence the complainant is bound by the said terms and conditions and as per clause 6, the complainant is required to bring the vehicle to the workshop of authorized dealer and as such, she was advised to produce the vehicle at the workshop for inspection and repair under warranty, if any, which she failed.


It is denied that the vehicle is a sub-standard product and not of merchantable quality. The OP No.1 further contend that they never shirk from their warranty liability subject to complainant provide the vehicle to the workshop, as such, no negligence can be attributed to them. The OP No.2, in its separate reply, has denied the allegation of the complainant in toto and contended that the complainant was asked to bring her vehicle to their workshop at Dehradoon, for mechanical inspection, but she did not turn up, hence, no negligence of any kind in not repairing the vehicle of the complainant, can be attributed on the part of the OP No.2. As such, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

5. The grievance, as, ventilated by the complainant qua the defect in the engine, has been repulsed by the OPs by filing a detailed reply. An affidavit has also been sworn by the OPs disclosing the fact that the defects as complained by the complainant, had not come to be noticed during its inspection at the authorized workshop of the OPs at Dehradoon.

6. Even during the pendency of the complaint, before this Forum, this Forum on, 05.09.2007, had directed the OPs to rectify the defects in the vehicle. In compliance wit the orders rendered on, 05.09.2007, the OPs did proceed to rectify the defect as existing in the vehicle. The OPs have also filed a report of the technical expert, who has in compliance with the directions of this Forum, had, not only proceeded to reflect in it that, on, inspection of the vehicle, the, defect as complained of by the complainant qua leakage of engine oil from the engine, hence, purportedly revealing a defect in the engine was, not, observed by them. The said report of the technical expert has not been repulsed by the complainant. The complainant has also not subsequent to the rendition of the report of the technical expert on, 05.09.2007, has not brought on record any material to substantiate the defect that the leakage of engine oil from the engine side still persists.

7. The effect of the report of the technical expert as placed on record and with its manifesting the non-observance by the technical expert of the defect as complained of by the complainant and which the observations divulged in his report placed on record not having been come to be repudiated, hence, we are of the view that the complainant has acquiesced to the findings as recorded by the technical expert or her grievance have been mitigated. Hence, the result of the above discussion, is, that the complainant, has miserably failed to prove that there was any defect in the engine, hence, entitling him to claim relief against the OPs.

8. In view of the above, the complaint being merit less deserves dismissal and hence we order accordingly, leaving the parties to bear their own costs. The learned counsel for the complainant has undertaken to collect the certified copy of this order from the office, whereas the certified copy of this order shall be sent to the OP by the office through UPC. The file after due completion, be consigned to record room.

Aseem Sharma S/o Sh. Dev Rishi Sharma, r/o Nawanshahr, Tehsil and Distt. Nawanshahr. …Complainant.

Versus

1. Maruti Insurance Brokers Ltd. As Corporate Agents of National Insurance Co. Ltd. Div. No.10, Flat No. 101-106, N-1, BMC House, Connaught Place, New Delhi.

2. Lovely Autos, Chandigarh Road, Nawanshahr.

3. Regional Manager, North II, Maruti Udyog Limited, SCO 39-40, Sector 8C, Madhya Marg, Chandigarh.

4. Amit Sharma

5. Himanshu Sharma Ss/o Sh. Dev Rishi Sharma

6. Prahba Sharma wd/o Sh. Dev Rishi Sharma, Rs/o Nawanshahr, Tehsil & Distt. Nawanshahr. …Opposite Parties





ORDER

Present complaint has been filed (under Section 12 of the Consumer Protection Act.) Sh.Aseem Sharma son of Sh.Dev Rishi Sharma, r/o Nawanshahr, Tehsil and District Nawanshahr against Maruti Insurance Brokers Ltd. and others. Briefly stated the father of the complainant Sh.Dev Rishi Sharma was the registered owner of the vehicle Maruti Swift Car bearing No. PB-32F-3870 registered at Nawanshahr. The registered owner of this vehicle Sh.Dev Rishi Sharma died on 12/03/2007 at Nawanshahr and after his death complainant alongwith respondents No.4 to 6 became the owners of this vehicle in view of the registered Will dt.17/11/2006 executed by the father of the complainant during his life time. The said vehicle was insured with Op1 through Op2 under Maruti Insurance Scheme. Previously the father of the complainant now the complainant is paying premium of insurance regularly to the Ops. So the complainant is consumer under the Ops.


The said vehicle met with an accident on 21/10/2007. On information the surveyor of Op1 inspected the spot on 22/10/2007; all the required documents were submitted to him, who submitted his report on 26/10/2007 since then the car was removed to the Show Room/Workshop of Op2 at Chandigarh Road, Nawanshahr. Despite of the valid insurance of this vehicle with Op Nos. 1 to 3 the Ops had failed to give his due claim of insurance. Under pressure the complainant deposited Rs.25,000/- with Op2 in October 2007. Despite this on his every visit to the workshop he found the vehicle unattended what to speak of the repairs, rather he was pressed upon to deposit Rs.1,25,000/- to start the work of repairs on the vehicle.


However, it has also been pointed out that the car of the complainant was insured under cashless scheme, meaning thereby in case of any emergency of accident Op3 will repair the vehicle and after assessing the amount of depreciation of the vehicle only shall charge the rest of the amount of repair and body parts of the vehicle directly from Op2. Despite a legal notice dated 17/03/2008 the Ops have failed to pass the claim of the vehicle. It is further clarified that Op Nos. 4 to 6 the legal heirs of Late Sh.Dev Rishi Sharma are made party only for effective adjudication of the present complaint whereas no relief or claim has been claimed by or against them.


In these circumstances the Op No. 1 to 3 are deficient in service for neither passing the claim of the car nor delivering the car to the complainant for about two years; that the Ops be directed to pass the insurance claim of the vehicle and after repairing the same to deliver the vehicle to the complainant. Further request has been made for compensation for physical and financial loss to the vehicle lying static at the workshop for more than two years and also for damages and the mental agony caused to the complainant. The Ops may also be made liable to pay Rs.10,000/- as litigation expenses.

2. In response to the notice the Op 1 (National Insurance Company Ltd.) has filed the written statement. On merits denying the ownership of the deceased father of the complainant who died on 12/03/2007 & the Will dated 17/11/2006 of Late Sh.Dev Rishi alleging that the Will is required to be roved and a succession certificate is required to be obtained before making any claim by the beneficiaries of the original insured. Moreover, it is averred that as per condition No. 9 of Motor Insurance Guidelines, the registration should be transferred within 3 months from the death of the registered owner as well as policy too having grace period of 14 days, that due to the non-compliance of these legal requirements the Ops have closed the case as “No Claim” about which due information has already been given to the complainant vide letter dated 25/07/2008.


It is admitted that Didar Singh Ruprai was appointed the Surveyor by the Company who submitted his report on 26/10/2007; that later on Sh.M.L. Mehta and Company also submitted their final report on 31/03/2008 assessing the loss of the vehicle at Rs.1,13,662.75. It is alleged that under these circumstances no negligence or deficiency in service can be attributed to the Op 1, the insurance Company. Finally a request has been made to dismiss the complaint.

3. Op 2 Lovely Autos in written statement has also denied the allegations of the ownership of Op Nos. 4 to 6. However, it is admitted that the said vehicle was insured with Op 1. It is further denied that Op2 is in any way concerned with Op1, that Op2 only referred the case and made introduction of the complainant to Op1. No complaint lies against him, he has been made a party just to harass. The allegations of the death of the father of the complainant and his Will dated 17/11/2006 are denied. Admittedly the said car met with an accident on 21/10/2007 and this accident case was duly referred to the local Surveyor.


It is further averred that during the discussion of loss with the repairer the insured’s son the complainant Aseem Sharma was insisting to settle the loss on total loss basis but he was pressed upon that the repair cost of the vehicle does not exceed 75% etc, that he was duly informed that the whole repair will be done by cash and not under the cashless scheme, the complainant had directed Op 2 to proceed accordingly and that he will take care of his insurance under the cash less scheme with the insurance company.


He was told to deposit Rs.50,000/- for the repairs but he neither paid the amount nor took the delivery of the vehicle which has been parked in the premises of Op2 since then etc. It is alleged that the complainant can simply be not be allowed cashless repair as has already been informed. Lastly it is averred that there is no merit of the complaint and the same deserves to be dismissed with special costs in the interest of justice and the complainant be directed to pay Rs.2 lacs to Op3 along with interest till the final payment of this amount etc.

4. The complainant has tendered into evidence his affidavit Ex. C-1, Insurance Cover Note Ex. C-2, Acknowledge Receipt Ex. C-3, copy of notice Ex.C-4, coy of R.C. Ex.C-5, Postal Receipts Ex. C-6 to Ex. C-8, copy of Will Ex. C-9, Estimate of repair Ex. C-10 (8 pages), copy of Driving License of complainant Ex. C-11, copy of death certificate Ex. C-12 and closed the evidence.

5. To rebut the evidence of complainant the learned counsel for Op 1 tendered into evidence affidavit of Satinderjit Singh, Branch Manager of Op 1 Ex. RW-1/A, letter dated 25/07/2008 Ex. R-2, letter dated 13/06/2008 Ex. R-3, Surveyor Report dated 26/10/2007 Ex. R-4, other surveyor report dated 31/03/2008 Ex. R-5, Insurance Policy Ex.R-6 and closed the evidence.

6. We have perused the record & heard the parties in detail. In view of case cited as 2006 (2) CLT 451 NC. A mere letter to the effect, ‘as per advice of the competent authority, your aforesaid claim is hereby closed as “No claim’ case is acceptable as final repudiation. Examination of Ex. R-3 & R-2 reveals that the case has been closed only on the basis that the R.C. of the vehicle was not got transferred in the name of the complainant within 3 months after the death of the insured as condition No. 9 of the Motor Insurance Guidelines etc.


However Ex. C-5 copy of R.C. evidently proves that now the vehicle has duly been transferred, in the name of the complainant. In the resent circumstances we appreciate the complainant’s evidence Ex. C-12; Ex. C-9, ‘Will’ of Sh.Dev Rishi Sharma father of the complainant registered vide No. 371 dated 17/11/2006 & duly supported by the affidavit submitted as written statement on behalf of Op No. 4 to 6 and of course by Ex. C-5 i.e. change of R.C. of the vehicle in the name of the complainant. The question now arises even if the said condition (9) of the Policy Ex. R- stands contravened whether the complainant/insured is entitled to get the compensation/claim or not.


The main purpose of Insurance Policy was undoubtedly to indemnify the damage caused to the vehicle. In view of the this legal position as such there appears no nexus between the accident for which the Op is requested to indemnify the complainant and subsequent transfer of RC in the name of the complainant. Admittedly the insured vehicle met with an accident & suffered wreck-less damage; consequently the insured Mr. Dev Rishi Sharma died. The insurer can not be absolved of its liability to indemnify the insured/his legal heir/heirs etc for the accidental damages to the vehicle. Therefore denial of benefit to the legal heir/heirs merely on technical ground that RC was not transferred in his name within stipulated time is not justified.

7. Admittedly the complainant is the son/legal heir of the deceased insured, therefore, he is the beneficiary consumer under the provision of the Act. Ops’ objection to the ‘will’ is baseless as they have insured the vehicle only and the claim is to be allowed for the repairs of the vehicle only. As such the Ops have no connection with the will. Moreover the complainant has nothing to do with the Surveyor’s assessment Ex R5. Admittedly the vehicle was allowed cashless insurance at the time of issuing the policy. The repudiation of the cashless insurance as read on Ex.5 page 3 “we discussed the loss with the legal hirer/authorized dealer who were interesting for cash less settlement since the insured himself died” is not acceptable The said vehicle has been parked/stationary in the workshop of OP 3 since 21/10/2007 just because of their clever tactics to wriggle themselves out of their liability to indemnify the damage cashless to the complainant. The vehicle till date has been reduced to naught. This surely is Ops No.1 & 2’s deficiency in service to the complainant.

8. As per aforesaid discussion and due application of mind to the relevant facts, circumstances and arguments, we are constrained to allow the complaint with the directions to the Op No.1

i. To honour the admitted terms of the contract with the insured and ensure to provide the complainant cashless repairs/ replacement/repairs/paints etc. to make the vehicle perfect and road worthy.

ii. OP is also directed to pay Rs.10,000/- as compensation for such a long harassment to the complainant along with Rs.5,000/- as litigation cost.

iii. OP2 further directed to refund Rs.25,000/- already deposited under pressure.

9. Copies of this order be sent to the parties as per rules.

10. File be consigned to the record room.

K. Krishnan, Kasthuri, K.P 8-472, Peroorkada, Thiruvananthapuram.







Opposite parties:




1.

The Managing Director, Maruti Udyog Ltd., 11th Floor, Jeevan Prakash-25, Kasturba Gandhi Marg, New Delhi – 110 001.


2.

The General Manager, Indus Motors Co. Ltd., M.G. Road, Thevara, Kochi- 682 015.


3.

The Manager, Indus Motors Co. Ltd., Pattom, Thiruvananthapuram.
















ORDER




The facts of the case are as follows: As per the proforma invoice given to the complainant, the cost of the Zen VXI Model car is shown as Rs. 3,99,314/-. The cost of insurance comes to Rs. 13,126/-, the road tax & registration fee and extended warranty comes to Rs. 18,850/- and 1,450/- respectively. Thus the total cost of the vehicle as per proforma invoice dated 24.07.2004 is Rs. 4,32,740/-. The case of the complainant is that on 23.08.2004, as per newspaper reports, the price of the vehicle has been slashed down by Rs. 9,000/-.



The complainant took delivery of the vehicle on 25.08.2004. The complainant paid total amount of Rs. 4,21,500/- for taking delivery of the vehicle. On a perusal of the invoice dated 24.08.2004 the complainant noticed that though a total amount of Rs. 4,21,500/- was collected from the complainant, an amount of Rs. 3,99,314/- alone is accounted towards the price of the vehicle and Rs. 22,186/- is seen accounted towards road tax and extended warranty. From the invoice it is also explicit that the price collected at Rs. 3,99,314/- covers the price of accessories supplied and sale tax. On further enquiry the complainant understood that there was a decrease in price at Rs. 12,462/- for the model Zen VXI model. In other words the ruling price of the model purchased was only Rs. 3,86,852/-. The complainant requested the opposite parties to refund the excess amount collected from the complainant on several times. In spite of an earnest effort made to get it refund, the opposite parties did not honour the commitment of the company so far. Hence this complaint.





The 1st opposite party, the Managing Director, Maruti Udyog Ltd. filed their version contending the case. The 1st opposite party states that there was no contract for sale of vehicle between the complainant and 1st opposite party. The complainant neither paid any amount to the 1st opposite party for purchase of vehicle nor the complainant had any transaction relating to the sale of the vehicle in question with the 1st opposite party. The 1st opposite party sells the vehicles to its dealers on a price prevailing at the date of invoicing. It is the prerogative of the 1st opposite party to decide the price of its products.


In so far as sale of vehicle to the individual customer is concerned, it is the dealer and that individual customer has to settle the terms and conditions of sale including the price of vehicle, date of delivery etc. The sale of vehicle, therefore, depend upon specific conditions of agreement for sale as entered into between the complainant and selling dealer. The 1st opposite party states that the company was not bound to honour any alleged commitment with the complainant.




The 2nd and 3rd opposite parties' main contentions in the version are that these opposite parties had not collected excess amount from the complainant. They admitted that the price of the vehicle and the insurance amount till 2nd August 2004 had been changed and the new scheme was introduced from 23rd August to 31st August 2004. The opposite parties stated the details as below:







Old price upto 22nd August New price from 23rd August to 31 August

Vehicle Cost - 399314 386852

Insurance - 13126 12738

-------------- ------------

4,12,440 3,99,590/-

======= =======




Old Scheme till 22nd August New price from 23rd August to 31 August




Free Insurance - 13126 Price difference - 12462

Accessories given - 13239/- Insu 50% of 12738 - 6369

----------- ------------

Total 26,365/- 18,831/-

======= =======




As per the opposite parties the complainant has enjoyed the benefit of Rs. 7,534/-. If the complainant had purchased the vehicle after the price decrease he would have got only the above mentioned 50% insurance and price difference as offered and he would have lost the gain Rs. 7,534/-. And therefore these opposite parties had given the best deal, which is beneficial to the complainant with a view to keep good customer relationship. The opposite parties deny the allegation that the opposite parties have collected excess amount of Rs. 12,412/- from the complainant. There is no unfair trade practice or deficiency in service from the part of the opposite parties. Hence they prayed for the dismissal of the complaint.

In this case complainant has filed proof affidavit in lieu of chief examination and he has been examined as PW1. From his side 5 documents were marked as Exts. P1 to P5. 1st opposite party has also filed affidavit along with a document. 2nd and 3rd opposite parties have submitted that they have no evidence.

Points that would arise for consideration are:-

1.

Whether there is deficiency in service or unfair trade practice from the side of opposite parties?
2.

Reliefs and costs.

Points (i) & (ii):- In this case the complainant has been examined as PW1 and the opposite parties cross examined him. From the complainant's side 5 documents were marked as Exts. P1 to P5. Ext. P1 is the proforma invoice dated 24.07.2004. The on road price quoted in Ext. P1 by the 3rd opposite party is Rs. 4,32,740/-. As per this document Ex Showroom price is Rs. 3,99,314, insurance amount is 13,126/-, road tax and registration fee is 18,850/- and extended warranty is 1,450/-. In the proforma invoice three conditions are stated. First and second conditions are (1) price quoted above is current and subject to change without notice (2) price prevailing at the time of invoicing shall only be applicable.


The opposite parties have no objection on these points. Ext. P2 is the copies of paper cuttings of Malayala Manorama and Hindu in which the news published that the price of the vehicle Zen have been slashed down by around Rs. 9,000/-. Ext. P3 is the invoice No. 5965 dated 24.08.2004. As per this document the complainant had to remit Rs. 4,21,500/- to the 3rd opposite party. Ext. P4 is the copy of the delivery receipt dated 25.08.2004. Ext. P5 is the copy of tele fax dated 16.09.2004 issued by the 3rd opposite party to the complainant. The copy of this document has been produced by the 1st opposite party also along with their version.

We have carefully examined all the pleadings, documents and evidence of both sides. The opposite parties agreed that the price prevailing at the time of invoicing shall only be applicable (Ext. P1) In this case we have also taken that view for deciding the case. The date of invoice is 24.08.2004(Ext. P3). As per Ext. P5 the price of the vehicle on that date was Rs. 3,99,590/- including insurance. The opposite parties have argued that at that time they offered 50% insurance off. Accordingly the complainant would have to pay Rs. 3,99590-Rs. 6,369/- = Rs. 3,92,221/-. But the opposite parties charged Rs. 3,99,314/- from the complainant. Hence the complainant is entitled to get refund of Rs. 3,99,314 – Rs. 3,99,221= Rs. 7,093/- from the 2nd and 3rd opposite parties, the excess amount collected by them from the complainant.


In this case opposite parties argued that they have given accessories for Rs. 13,239/- as free. But they have no evidence to prove that contention and moreover the complainant never demanded free accessories from the opposite parties. In Ext. P5 document the opposite parties stated that they have given accessories for Rs. 13,239/-, but the opposite parties charged Rs. 407.88 for accessories as per Ext. P3. In this case the opposite parties have failed to prove that they have given the accessories free of cost. From the above mentioned discussions we are of the view that there is unfair trade practice from the side of 2nd and 3rd opposite parties, that they have not given the vehicle at the price prevailing at the time of invoicing. Hence the complaint is partly allowed.

In the result, the opposite parties 2 & 3 are directed to refund Rs. 7,093/- with 12% annual interest from 24.08.2004 till the date of realization and shall pay Rs. 3,000/- as compensation and Rs. 2,000/- as costs to the complainant. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest shall also be paid to the entire amount till the date of realization. 1st opposite party is exempted from any liability.