THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.488/2011

Dated this the 14^th day of January, 2019

(Smt. Rose Jose, B.Sc, LLB.              :  President)

                                                                       Sri. Joseph Mathew, M.A., L.L.B.      :  Member

ORDER

Present: Hon’ble Rose Jose, President:             

This petition is filed by the petitioner under Section 12 of Consumer Protection Act, 1986 for an order directing the opposite parties to replace the defective car with a defect free new one or to refund its purchase price with n24% interest thereon after taking back the defective car and to pay compensation for her financial loss, mental agony and other difficulties suffered due to the defects of the car and also cost of the proceedings.

Petitioner’s case is that, believing the representation made by the staff of the 2^nd opposite party that the vehicle Tavera B3-7C (BS3)IIC manufactured by the1st opposite party is excellent and the best one prevailing in the market at present and it will get 20 km. mileage per liter diesel etc. she had purchased the said car from the 2^nd opposite party on 13/10/2011 after paying Rs.8,80,775/- for the same (inclusive of all extra fittings). It is stated that her husband was working abroad and she had purchased the same with intend to let it for rent to earn her livelihood from the income arising out of it.

But to her utter dismay within few days of its running she noticed heavy leakage of oil from the engine and the vehicle was getting only 11½ kms, mileage also. Oil was continuously dripping from the engine to the ground. So she took the vehicle to the 2^nd opposite party on 27/10/2011 and informed these matters. They told that they will rectify the said defects and will deliver the vehicle at the evening. When she went to the opposite party at the evening to take back the vehicle she was told that the engine is having some serious defect and so it will take one week time for the repairs. The next day also she went to the service centre of the 2^nd opposite party with an automobile engineer, then it is found that the entire engine of the car dismantled. From this it became evident that the opposite parties had sold a defective car to her as a brand new one. So she refused to take delivery of the car and demanded replacement of the same with a defect free new one. But the 2^nd opposite party persuaded her to take delivery of the car assuring that all the defects are cured completely and there will not be any complaint further and this time also believing their words she took delivery of the vehicle on 16/11/2011. That time the 2^nd opposite party issued a bill showing the spare parts used and replaced for the repairs. It is stated that, from the bill it became clear that the engine head was defective and there was heavy leakage of oil from the engine. The said major engine work was done even at the 1^st service period of the vehicle and that too before the vehicle run 1000 kms. and this shows that the vehicle was defective at the time of purchase itself. It is also stated that the car was in its earlier condition regarding mileage even after the repairs also.

According to the petitioner, the opposite parties had sold her a defective car as if it is a brand new one and the said act of the opposite parties amounts to unfair trade practice and the failure in rectifying the defects after repairs is deficiency in service on their part. She was getting Rs.1,500/- per day as rent from the vehicle. Since the car was under repair from 27/10/2011 to 16/11/2011 she had lost an amount of Rs.30,000/- as rent during these time. All these caused huge financial loss, mental agony and other hardships to her. So both the opposite parties are jointly and severally liable to make good her losses. Hence this petition seeking reliefs.

The 1^st opposite party in their version denied all the allegation of the petitioner against them as false and frivolous. It is contended that the petitioner without giving any opportunity to them for looking into the grievance of her and sort out the same, had rushed to this Forum and so this petition is not maintainable either in law or on facts of the case and is to be dismissed in-limini. It is also contended that admittedly the petitioner had purchased the vehicle for commercial purpose and so she is not a consumer as per the provision of Consumer Protection Act and in this ground also this petition is not maintainable. It is further stated that they are unaware of any assurance alleged to be given by the 2^nd opposite party to the petitioner regarding its mileage. They have not given any such assurance to the petitioner in this regard. It is stated that mileage of a vehicle depends on various factors like road condition, driving habits, traffic, tyre pressure, usage of A/c., acceleration pattern, load in the vehicle, speed of the vehicle, gears used etc. etc. and so there is no parameters or standard to state exactly the fuel consumption of a vehicle and so no manufacturer ever be able to give a guarantee about the mileage of a particular vehicle and regarding the said vehicle they have not given any assurance to the petitioner regarding mileage as alleged.

They also denied the statement of the petitioner that there was oil leakage from the engine and it was reported to the 2^nd opposite party and that the 2^nd opposite party informed her that the engine is having serious defects as not true or correct. It is stated that the petitioner had handed over the vehicle to the 2^nd opposite party for reassurance check-up on 27/10/2011 and she has not raised any specific complaint regarding the performance of the vehicle, or any leakage of oil as alleged. On inspection by the technicians of the 2^nd opposite party, they noticed a mild oil leakage from the cylinder head side and so they cleaned up that area and tightened the cylinder head bolts and did a road test and during the test they again noticed oil leakage from the cylinder head. Hence as per their direction the 2^nd opposite party replaced the cylinder head assembly with new one. The removel of engine to replace the engine head by no account could be construed or drawback in the vehicle. The petitioner had taken delivery of the vehicle after repairs without any protest and so she is estopped from making any false allegation thereafter. The petitioner has not reported any complaint to them after taking delivery of the vehicle on 16/11/2011 and this shows that the alleged complaint has been fully cured and the vehicle is running trouble free in all aspects at present.

It is further stated that, the warranty clearly laid down that the opposite parties are entitled only to repair the vehicle and make it roadworthy and in cases where repairs are not effective or possible, then only the question of replacement or a refund of purchase price would arise. The vehicle is having no manufacturing defect as alleged. Here the vehicle is running satisfactorily now and so no question of replacement or refund arise. There is no unfair trade practice or any deficiency in service on their side. The petitioner has not suffered any loss or mental agony or any other hardships due to any of their acts and so they are not liable to compensate the petitioner in any way. The petitioner is not entitled for any of the reliefs sought for in the petitioner and hence prayed to dismiss the petition with exemplary cost.

The 2^nd opposite party also denied all the allegations of the petitioner as false and baseless. The purchase of the said vehicle by the petitioner was admitted but denied the statement that their staff assured 20 kms. mileage to that vehicle is not true or correct and stated that none of their staff had given such an assurance to the petitioner. The statement of the petitioner that she had detected leakage of oil and was reported to them when  the vehicle brought for reassurance service on 27/10/2011 was also denied as not true and stated that, no complaint has been reported by the representative of the petitioner at that time. On inspection their technicians noticed a slight oil leakage and as a reputed dealer, after informing this matter to the petitioner they had replaced the engine head after removing the engine of the vehicle though it was strictly not necessary. This was done solely to ensure that the complainant had no further cause for any worries in the future. They had never told the petitioner that the vehicle had serious defects.

It is further stated that, the petitioner’s complaint has been fully rectified by repair and the vehicle is running defect free now and so there is no need to replace the entire vehicle. The repairs works has been done at free of cost under the warranty. Since they have made the vehicle defect free as per the warranty terms, no deficiency in service can be attributed on them. The other contentions of the 2^nd opposite party is same to as that of the 1^st opposite party. Hence prayed to dismiss the petition with cost to them.

The matters for determinations are:

1. Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
2. Reliefs and costs if any?

Evidence consists of the affidavit filed by the PAH of the petitioner, the opposite parties, Ext. A1 to A7, C1 and deposition of PW1.

Point No. 1: The definite case of the petitioner is that, the vehicle sold to her by the opposite parties was a defective one. There was heavy oil leakage from the engine and oil was dripping from the engine to the ground. The 2^nd opposite party repaired the defects after dismantling the entire engine and from this it is clear that the vehicle is having some inherent manufacturing defect and so she is entitled to get the defective vehicle replaced or its purchase price back. The other allegation is that the vehicle is getting 11½ kms. mileage per liter diesel as against the assured mileage of 20 kms. Both these allegations are denied by the opposite parties also.

In her petition the petitioner stated that, seeing the heavy oil leakage from the engine she took the vehicle to the 2^nd opposite party on 27/10/2011 and informed them this defect. According to the 2^nd opposite party when the petitioner brought the vehicle for reassurance service on 27/10/2011 no complaint was reported by her representative regarding oil leakage. On inspection their technicians noticed a slight oil leakage from the engine head and they themselves had informed this matter to the petitioner. Ext. A3 is the preliminary inspection form dated 27/10/2011 issued by the 2^nd opposite party to the petitioner. In Ext. A3, in the column captioned “Customer Complaint” the service centre will enter all the complaints reported by the customer. If the leakage of oil was heavy as stated by the petitioner, then definitely the petitioner or her representative would have reported the complaint to the service personnel and they will enter the complaints in that column also. But here no such complaint is seen entered in Ext. A3. So the absence of such an entry in Ext. A3 document shows that the said statement of the petitioner was not true. According to the opposite parties after replacing the engine head the petitioner has not approached them with the complaint of oil leakage further and the vehicle is running trouble free now. They produced the job sheet of the said vehicle from 13/10/2011 to 31/01/2015 and was marked as Ext. B2. Nowhere in Ext. B2 any major defects or oil leakage is seen reported by the petitioner after the repair on 27/10/2011 except the complaints occurring due to normal wear and tear. So Ext. B2 also shows that the oil leakage was not repeated after the replacement of engine cylinder head on 27/10/2011.

For ascertaining the present condition of the said vehicle, the Executive Engineer, PWD Mechanical Division, Kozhikdoe was appointed as Expert Commission and after inspection the expert filed his report dated 28/02/2014 and was marked as Ext.C1. in Ext. C1 report it is reported that “The vehicle has covered a distance of 80763 kms. so far. On inspection, no symptoms of leakage of oil from any part of the engine of said vehicle is seen and the working of the engine is satisfactory. Regarding the poor mileage of vehicle, no remarks are offered, as the party didn’t co-operate positively for conducting a fuel consumption test. I may also report that the overall performance of the vehicle is satisfactory.” Thus Ext. C1 report also shows that the vehicle is having no serious defects like oil leakage at present and its overall performance is satisfactory. The petitioner filed objection to the findings of the expert commissioner in Ext. C1 report. It is stated that this report was prepared without considering Ext. A3 document. Likewise the statement in Ext. C1 report that the petitioner has not co-operated for a fuel consumption test is not true or corre3ct. The actual fact is that the expert was not willing to conduct a mileage test even after her requests. So for these reasons the Ext. C1 report is not acceptable and is liable to be set aside. Though the petitioner had filed objection to Ext. C1 report, she has not cross-examined the expert to bring out the true facts. So the objections raised against the Ext. C1 report by the petitioner is not admissible.

Regarding the allegation of poor mileage the opposite parties produced the extract of owner’s manual with the warranty terms and conditions and was marked as Ext. B1. Nowhere in Ext. B1 the company had given any guarantee oroffer of 20 kms mileage to that vehicle. If the opposite parties had offered any guarantee in the owners’ manual regarding mileage then that can be considered. In the absence of any guarantee regarding mileage in the owners’ manual the statement of the petitioner that the staff of the 2^nd opposite party had assured 20 kms. mileage cannot be considered as evidence in this regard. Moreover it is true that the mileage of a vehicle depends on various factors as stated by the opposite parties in their version and so no manufacturer can give any guarantee regarding mileage to any vehicle.

As per the warranty conditions, the manufacturer is liable only to repair or replace the defective parts of the vehicle and to make it in good roadworthy condition at free of cost within the warranty period. The question of replacement of the vehicle or refund of its purchase price arises only on the event when a major or serious complaint arises which cannot be cured by repair or replacement of the defective part. Here the evidence shows that the leakage of oil was rectified completely by replacing the engine head assembly at free of cost under the warranty conditions and it was not repeated further and as per Ext. C1 report the overall performance of the vehicle is satisfactory at present also. So we are of the view that no major or serious defect is persisting in the vehicle after its repair on 27/10/2011 so as to order replacement of the entire vehicle or refund of its purchase price as prayed for by the petitioner. In Mahindra & Mahindra Ltd. V/s. Thakurdesai and Anr.II(1993)CPJ225(NC) the Hon’ble National Commission held that “If  a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced, then it will be very prejudicial to the interest of the manufacturer, if he is asked to replace the whole machinery without sufficient cause.” The same principle was upheld by the Hon’ble Supreme Court in a special leave petition in the case of C.N. Ananthram V/s.  Fiat India Ltd. and ors, (2011)1SCC(460) wherein it is held that “When there is no major or inherent manufacturing defect and the problem complained of has been removed, manufacturing company or agent is not under the compulsion to replace the same.”

The petitioner produced paper reports regarding recall of the vehicles marketed by the opposite parties for not meeting the testing standards and was marked as Ext. A6 & A7. But this recalls happens when the defects with the vehicle marketed was serious and that could not be rectified by repairs or replacement of the defective parts of the vehicle. But here in this case the defect was fully cured by replacing the defective part and so reports in Ext. A6 and A7 is not applicable in this case.

At the same time, it is also to be considered that the leakage of oil and resulted replacement of the engine head of the vehicle was happened even before the 1^st service of the vehicle and before the vehicle run 1000 kms. No doubt it will cause much distress, mental stress and strain and also serious doubt and suspicion in the mind of the customer regarding the performance of the vehicle in the coming days. This will be a real shock to the customer and remains as a pain in the mind of the customer throughout the lifetime of the vehicle. Moreover the specific case of the petitioner is that she had purchase the vehicle for renting it to earn her livelihood. Due to the repair works she could not let the vehicle for rent for about 20 days and this caused much financial loss to her also. All these happened due to the defect of the new vehicle at the very early stage of its purchase and so we are also of the view that as the manufacturer, the 1^st opposite party is liable to compensate the petitioner for her financial loss and other hardships suffered. Point No. 1 found accordingly.

Point No. 2: In view of the finding in Point No. 1, this petition is partly allowed.

            The 1^st opposite party is ordered to pay Rs.1,00,000/- (Rupees one lakh only) as compensation for the sufferings of the petitioner and Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings(which includes the commission batta) to the petitioner within 60 days from the date of receipt of this order. Failing which the whole amount will carry 7% interest per annum from the date of default till payment            

Dated this the 14^th  day of January, 2019

Date of filing: 08/12/2011.

                           SD/-PRESIDENT                SD/-MEMBER

 APPENDIX

Documents exhibited for the complainant:

A1. Power of Attorney

A2. Copy of retail invoice dated 13/10/2011

A3. Preliminary inspection form

A4. Cash memo

A5. Photographs

A6. Newspaper cutting

Documents exhibited for the opposite party:

B1. Copy of owners’ manual

B2,  Job sheet

Witness examined for the complainant:

PW1. Rajendran (PAH)

C1. Commission Report

Witness examined for the opposite party:

None                                                           

Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT