BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SMT. PREETHA G. NAIR                           : PRESIDENT (I/C)

SRI. VIJU V.R                                             : MEMBER

C.C. No. 162/2012 Filed on 21.05.2012

ORDER DATED: 14.02.2020

Complainants:

1. Seeta Mathew, T.C 27/2006/1, Little Flower, Rishimangalam, Thiruvananthapuram.

2. Rex Jacob, T.C. 27/2006/1, Little Flower, Rishimangalam, Thiruvananthapuram.

   (By Adv. S. Reghukumar)

Opposite parties:

1.  Indus Motors, Pattom, Thiruvananthapuram.

(By Advs. Aboobacker P.K & Deepesh A.S)

2. M/s Maruthi Suzuki India Ltd., 1, Nelson Mandela Road, Vasant Kunj, New Delhi-110 070.

(By Adv. G.S. Prakash)

This case having been heard on 18.12.2019, the Forum on 14.02.2020 delivered the following:

ORDER

SRI. VIJU V.R : MEMBER

The complainants have presented this complaint before this Forum under Section 12 of the Consumer Protection Act 1986.  The complainants allege that the complainants were using a 2007 model WagonR LXI car with Reg. No. KL-01 AR 1632 and they were very much satisfied with its performance and functioning from the very beginning.  During the middle of 2011 Sales Executive and Sales Manager of the 1^st opposite party approached the 2^nd complainant and told that there is a display of Maruti cars including the new Maruti WagonR in the compound of District Court, Vanchiyoor, Thiruvananthapuram and persuaded the 2^nd complainant to see the display so as to know the performance of new model Maruti WagonR.  The sales executive and sales manager repeatedly tried to convince and make believe the complainants that the new WagonR which was introduced newly having more facilities and attractive performance than the old one which is in the possession of the complainant.  They were also regularly coming to the complainant’s house and prompting, tempting and pressurizing the complainants to exchange the WagonR in their possession with the new one.  But either the sales executive or the sales manager of the 1^st opposite party never compared the performance of the new WagonR with the old one which the complainants were using.  They also did not disclose the advantage and disadvantage of the new vehicle despite the complainants enquired the same.  Having believed the words and deeds of the sales executive and sales manager and also under their pressure and prompting the complainants were compelled and forced to purchase the new Wagon R VXI car by exchanging the existing car on 28.07.2011 from the showroom of the 1^st opposite party.  The exchanged WagonR car of the complainants was valued at Rs. 2.55 lakhs.  The total value of the new car is Rs. 4,37,000/- and after deducting the benefits such as road tax, insurance premium, value of the exchanged car etc. the complainants were asked to pay Rs. 1,60,000/- and the said amount was paid after hypothecating the vehicle with SBT, RASMECCE, Thiruvananthapuram.  Thus observing all formalities, the complainants have taken delivery of the new car on 28.07.2011 from the 1^st opposite party.  After one week of the purchase, while the 2^nd complainant was driving the car through a very small steep place at Thiruvananthapuram city, the car get halted all on a sudden without moving further and even after the second gear was applied the car did not pull further and hence the complainant had to switch off the AC and to take it on first gear.  Astonished by the failure in pulling power the complainant immediately contacted the 1^st opposite party over phone and appraised him of the pathetic situation he faced at the heart of the city.  In return the 1^st opposite party had advised the complainant to bring the car tot the show room at Pattom.  Accordingly the complainant had taken the car to the showroom and from there the car was taken to their yard at Ulloor for detailed examination.  The mechanic in the yard told the complainant that the car is not having sufficient pulling power and pick up and for that reason the car should not be taken to hilly places and advised that while the car is driving even to small steep places, the AC must be switched off.  However the mechanic also expressed the hope that there may be some change in pulling power and pick up after first service of the car.  The complainants used to go to Thodupuzha frequently to look after the ancestral home and properties.  At the time of purchase of the new AC car it was also kept in mind of the complainants that they will be able to travel to their ancestral home in Idukki in a very comfortable position in their car.  But the failure in pulling power and pick up and also the advice to switch off the A/C while driving the car to steep places had caused mental strain and disappointment to the complainants.  Had the sales executive and sale manager disclosed the real facts relating to the failure in the pulling power and sudden pick up of the car to the complainants at the time of prompting the complainants to purchase the same definitely the complainants would not have purchased the WagonR which is not at all having even the basic features that of base model of the WagonR.  Moreover the new Wagon R VXI is supposed to be the top model car having a difference of Rs. 50,000/- more in price than that of its base model.  If the complainants are not capable of using the A/C throughout their driving there is no need to go for a top model car instead of the existing exchanged base model car.  On 26.08.2011, the 2^nd complainant has taken the car for first service to the workshop at Venpalavattom.  The service manager and the staff of the workshop told the complainants that he had committed a big blunder by exchanging old model having a 4 stroke engine to new model having 3 stroke engine only.  The said crucial fact was never disclosed to the complainant by both the sales executive and staff members of the showroom of the 1^st opposite party and thereby the 1^st opposite party cheated the complainants by deceptive unfair trade practice.  After the first service of the car also, there is no progress in pulling power and pick up of the car as opined by the mechanic at the yard at Ulloor.  The complainants are not able to use the car with A/C in any steep places.  The complainants have to negotiate while driving through steep places ultimately led to their mental depressions.  The 2^nd opposite party manufacturer is wholly responsible for the manufacturing defect of the said vehicle and they should have taken adequate features so as to facilitate the vehicle for its smooth running at the plain area as well as steep ascending places.  The complainants had sent a written complaint to the opposite parties on 08.08.2011 and there was no response from the 1^st opposite party so far.  The 2^nd opposite party sent a reply stating that advice would be given to the Regional Service Manager at Kochi to look into the matter and external necessary assistance.  But no such assistance was received from the 2^nd opposite party so far, despite they promised the same.  Hence this complaint.

The opposite parties 1& 2 entered appearance and filed version. The 1^st opposite party averred that they arrange display of vehicles in various places.  The said display is organized to give the opportunity to the customers to inspect the vehicles.  However, the 1^st opposite party never compel or insist any of the customers to take any particular vehicle and it is purely on the discretion of the customers according to their necessities, financial capacities etc.  It is up to the customers to come and to view the display, opt their choice, make enquiries, recognize the performance and finally opt any vehicle according to their own desire and fancy.  The allegation that the staff of the opposite party had repeatedly tried to convince and make believe the complainants that the new Wagon R which was introduced newly having more facilities and attractive performance than the old one which were regularly coming to the complainant’s house, and prompting, tempting and pressurizing the complainant to exchange the Wagon R in their possession with the newly introduced Wagon R car are not true.  Being a customer oriented company and the customers are being the masters of their decision, the 1^st opposite party has the role only to display the same and to provide the details of the vehicle opted by the customers.  It is the discretion of the customer to choice the vehicle according to their own desire and fancy, the opposite parties have no role in the same.  The complainants might had visited the display centres or showroom of the 1^st opposite party, viewed the vehicles displayed, satisfied with the performance of the new Wagon R car and was pleased to exchange their old car with the newly introduced one.  Thus it is the customers who decides and opts to purchase a new car either by selling their existing car outside or by exchanging the same through the dealer.  After receiving an old vehicle, the dealer has to do all necessary repair works and painting and polishing and if possible has to give warranty for latest model vehicles.  So the dealer can provide only the maximum possible price they can give for the old vehicle after calculating their expenses for repairing works before selling the same through their used car showroom.  As a result, the dealer offered for a maximum price for the complainant’s old car and the complainant was pleased to exchange his old vehicle for the price offered by the 1^st opposite party.  Thereafter the complainant was requested to pay the balance amount after deducting the price of their old vehicle from the price of the new vehicle and the complainants had taken delivery of the vehicle.  No dealers can either compel any customers to sell his car or purchase a car of dealer’s choice; it is the customer who decide the same based on their desire and fancy.  The allegation that after one week of the purchase of the new car the complainants had contacted the 1^st opposite party over telephone and they were advised to bring the car to the showroom at Pattom and from there the car was again taken to the yard of the 1^st opposite party at Ulloor for detailed examination and the mechanic in the yard had told the complainant that the car should not be taken to hilly places and advised that while the car is driving even to small steep places the AC must be switched off and they had also told that there may be some change in pulling power and pick up after the first free service are all not true or correct and all are made only for the purpose of this case and hence denied by the 1^st opposite party.  Performance of a vehicle in steep places will depend upon mainly on the driving habits.  A vehicle having high pulling also can be used in a manner of low pulling at steep places if the driver is not so much expert.  The averments regarding the failure in pulling power, sudden halt and pick up of the car is not true and correct.  A newly introduced car will never show such a complaint.  Moreover, the complainant purchased the same after a test drive and after enquiring about the cubic capacity and pulling of the car.  The complainant also bought this car after satisfying himself about the pulling power and pick-up by a test drive, hence they cannot raise baseless allegation regarding the same.  However the performances of the vehicle become more and more smooth and comfortable after the first three services.  The performance also depends on the mode of driving by the driver.  The complainants at the time of purchasing the new car had the intention to travel to their ancestral house in a very comfortable position and if the sales executive and the sales manager had disclosed the real facts relating to the failure in the pulling power and sudden pick up of the car at the time of prompting the complainants to purchase the new car, definitely the complainants would not have purchased the new car are not true or correct and are made for the purpose of this case.  The 1^st opposite party had never compelled the complainants either to purchase the new car or exchange their old car for a new car.  On 26.08.2011 the 2^nd complainant had taken the car for first free service to the Maruti workshop and the staff of the workshop had told the complainant that he had committed a big blunder by exchanging their old car which was having 4 stroke engine with the new Wagon R which is having only 3 stroke engine is not true or correct.  The allegation that the new car was having only 3 stroke engine was never disclosed to the complainants by both the sale executives and staff members of the showroom and thereby the 1^st opposite party had committed unfair trade practice and cheated the complainants is baseless.  The details of the vehicle will be explained to all customers and in this case the complainants had visited the showroom and had a test drive and perused the brochure of the vehicle and enquired all the details with the staff there and only after satisfied with all the details they had decided to purchase the new car.  But in this case the complainant had experienced the performance of the vehicle and was satisfied with the performance of the same, accepted the price and paid the amount and taken delivery of the vehicle.  Later issuing a complaint raising baseless and unsustainable allegations is with a malafide intention to lower the reputation of the 1^st opposite party among the public.  The allegation that the vehicle is having manufacturing defect and marketing a new model vehicle in a market at a higher price than the base model promising better features and performance, by that the manufacturer and the 2^nd opposite party had cheated the complainant by unfair trade and deceptive trade practice are not true or correct.  The complainant had not pointed out any defect in the vehicle, but his case is that the vehicle is not having that much of power and pulling than his old vehicle or as he had expected.  Moreover no complaint had been received from any customers regarding the low power and pulling for the new car.  The complainant is not entitled for the reimbursement of the vehicle price or for any reliefs sought for in the complaint as there was no defect in the vehicle delivered to the complainant or there is any unfair trade practice or deficiency of service on the part of any of the opposite parties.  The complainant had filed this complaint raising baseless allegations with a malafide intention to lower the reputation of the 1^st opposite party among the public.  No mental agony, mental depression, mental stress and utter disappointment had been caused to the complainant and the same had been mentioned only for the purpose of this case.  The complainant is not entitled for any reliefs sought for in the complaint. 

The 2^nd opposite party in their version stated that the complainant has filed a frivolous and vexatious complaint on false allegations without any material on records against the 2^nd opposite party.  The complainant has failed to set out any case for deficiency in service or unfair trade practice against the 2^nd opposite party.  The liability of 2^nd opposite party under the warranty which is part and parcel of the sale contract is specific as set out under the warranty policy as enumerated in the owner’s manual and service booklet.  The complainant like a hurried man has filed this false and frivolous case to exert legal pressure on the opposite parties.  The vehicle is in perfect OK and defect free condition.  The complainant has suppressed several relevant facts from this Forum and has impleaded the 2^nd opposite party with an ulterior motive to cause wrongful loss and to obtain undue gain.  The 2^nd opposite party discharged their warranty obligations as per warranty terms and complainant has never been denied any warranty benefits which he is rightly entitled to.  The complainant with ulterior motive had been making demands which are beyond the scope of warranty.  The complainant with ulterior motive had been making false and frivolous demands.   The allegations made in the complaint do no constitute any consumer dispute between the complainant and 2^nd opposite party and the same does not give jurisdiction to this Forum to entertain the present complaint against the 2^nd opposite party.  The complainant has failed to place any material on record in order to substantiate his claim for compensation against the 2^nd opposite party.  The complainant with an afterthought has filed the present case.  The complainant is making purposeful use of the vehicle in question and the same is in defect free and roadworthy condition.  The present complaint is baseless and flagrant abuse of process of law to harass and blackmail the 2^nd opposite party.  The complainant is estopped from filing the present complaint by his own acts, conduct and acquiescence.  The complainant has no locus standi to initiate the present proceedings and liable to be dismissed under Sec. 26 of the Act.  The relationship between the 2^nd opposite party and the dealer is that of principal-to-principal basis and governed by Dealership Agreement executed between the opposite parties.  Admittedly, the complainant to his entire will and satisfaction took the delivery of the vehicle from the showroom of 1^st opposite party on 28.07.2011 and without any protest and demur.  There is no question of pressurizing or prompting the complainant to purchase the vehicle in question as alleged by the complainant.  The vehicle in question is fitted with new K-series engine which is a next generation engine with advanced technology with compare-less performance.  Before any vehicle is launched in the market, it has to undergo several processes of statutory approvals and compliances apart from internal research and development.  All the vehicles so manufactured by 2^nd opposite party are duly approved by appropriate authority of Government of India after homologation test, considering all aspects of quality, safety and emission norms.  The performance of the vehicle is OK and as per set standards.   It is denied that there is any failure in pulling power and pick up of the vehicle or the complainant was advised to switch off the AC while driving the car to steep places or has caused mental strain and disappointment to the complainant as alleged by the complainant.  The present complaint is mere bundle of false allegations and has been filed to exert legal pressure to obtain undue gains from opposite parties.  It is emphatically denied that the service manager or the staff of the workshop made alleged representation to the complainant or the opposite parties have cheated or made unfair trade practices to the complainant as alleged by the complainant.  The complainant for the first time reported low pulling on second gear as demanded repairs upon which the vehicle was thoroughly inspected by the expert service engineer of the vehicle and no abnormality or low pulling was observed.  The said remarks were marked on the job card ‘low pulling-checked OK’.  Normal routine maintenance services were carried out as per periodic maintenance schedule and after service the complainant took the delivery of vehicle to his entire satisfaction and without any protest and demur.  The complainant expressed her entire satisfaction during the post service follow up carried out by workshop after few days of carrying such services to the vehicle which itself refutes the averments made by the complainant and raises serious doubts over her bonafides.  After first service of the car there is no progress in pulling and pick up of the car or the complainants are not able to use the AC of the car while plying at steep places as alleged by the complainant.  There is no alleged problem or any problem in the vehicle and the same is in perfect OK and defect free condition.  The complainant is making purposeful use of the vehicle and the same has plied for more than 6814 kms as on 30.07.2012.  At the time of carrying the second and third free inspection services on 16.02.2012 at 4107 kms and on 30.07.2012 at 6814 kms respectively at the workshop of the 1^st opposite party, the expert service engineer of the workshop did not observe any abnormality in the vehicle.  The complainant is not entitled to receive either reimbursement of price of vehicle or any relief qua compensation from the 2^nd opposite party.  The compensation calculated by complainant is mere his exaggerations, which proves ulterior motives and malafide intentions of complainant.  The complaint in question is devoid of merits and the complainant has filed a frivolous and vexatious complaint.  The complaint against the 2^nd opposite party is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed in limine.     

Issues to be ascertained:

1. Whether there is any unfair trade practice or deficiency in service from the side of opposite parties?
2. Whether the complainants are entitled to get the reliefs?

Issues (i) & (ii):- Both these issues are considered together for the sake of convenience.  The complainant has filed chief affidavit in-lieu of chief examination and has produced 2 documents which were marked as Exts. P1 & P2. The complainant was not cross examined by opposite parties 1 & 2.  Opposite parties 1 & 2 have not filed any chief affidavit in-lieu of their chief examination. The commission report was marked as Ext. C1.  The complainant only filed argument note.  The main contention raised by the complainant regarding the pulling power of the vehicle was not disproved by opposite parties 1 & 2. Even though opposite parties 1 & 2 filed version they have not taken any steps to disprove the contentions raised by the complainant.  They have not given any evidence to show that the vehicle has got sufficient pulling power.   Opposite parties 1 & 2 were absent at the time of inspection of the vehicle by the commissioner, even though notice was given by the commissioner to the opposite parties.  It is stated in the commission report that the pulling power of the vehicle is insufficient and also the vehicle is incapable of running uphill’s with normal gears. The commission report was not challenged by opposite parties 1 & 2, hence the commission report has to be believed.

We are of the opinion that there is no provision in the Consumer Protection Act that absolves the manufacturer of goods from the liability to compensate having sold defective goods as the goods manufactured and sold to a consumer have to be tested on anvil of definition of the word ‘defect’ provided by Sec. 2(1)(f) of the Act which states:

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or  [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;

The fact remains that law framers had provided such strict guidelines against those manufactures who provide defective products to exploit consumers.  It also remains a fact that any person who buys a vehicle does so with an object that the same will provide comfort and peace of mind, however, if such a vehicle starts giving trouble and the consumer is made to visit workshop time and again then it is definitely an area of concern as it is clear case of mental agony, pain and harassment.   Everyone wants a hassle free car.

          1^st opposite party being the dealer is duty bound to ensure that the vehicle sold by them are free of any defects.  The dealer shall be vicariously liable for the loss caused to the purchaser along with the manufacturer of the vehicle. 

Hence we find that the complainants have succeeded in proving their case and there is unfair trade practice from the part of opposite parties 1 & 2.  Hence the opposite parties 1 & 2 are jointly and severally liable to compensate the complainant.

In the result, the complaint is allowed.  The opposite parties 1 & 2 are directed to take back the car and refund Rs. 4,37,000/- which was paid by the complainants and pay Rs. 25,000/- as compensation for the mental agony suffered by the complainant and pay Rs. 2,000/- towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 8% per annum from the date of default till realization. The above orders are joint as well as several against both the opposite parties.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 14^th day of February 2020.     

        Sd/-

PREETHA G. NAIR  : PRESIDENT (I/C)

       Sd/-

                                                                        VIJU V.R                               : MEMBER   

jb        

C.C. No. 162/2012

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

II       COMPLAINANT’S DOCUMENTS:

P1     - Copy of Certificate of Registration

P2         - Copy of letter from OP dated 23.08.2011.

III      OPPOSITE PARTY’S WITNESS:

                             NIL

IV      OPPOSITE PARTY’S DOCUMENTS:

NIL 

 V      COURT EXHIBIT:

          C1     - Commission Report

                                                                                                                     Sd/-

PRESIDENT (I/C)

jb