O R D E R

By Smt. Sreeja S. Member:

           Complainant purchased a Maruti Swift Dzire car on 21/01/14 for Rs.7,08,536/- as per invoice No. 13003499 from 2^nd opposite party which is the branch of 1^st opposite party Authorized Dealer. 4^th opposite party is the manufacturer of vehicle and 3^rd opposite party is its branch. The car was purchased to use it as an attraction on the marriage of the complainant’s son fixed to be conducted on 12/04/2014.

          2) After the marriage function when the newly wedded couple taken to groom’s home in the aforesaid car abruptly stopped as happened earlier and they came by another car leaving the new car in the Midway. This caused high mental agony and disgrace to the complainant and his family. Thereafter few weeks of purchase the car abruptly collapsed and 2^nd opposite party took the car to their workshop. They informed that engine of the car is defective and it is to be replaced.  Since the complainant had no other way, he agreed to replace the engine. The 2^nd opposite party returned the car on 11/04/14 after its repair assuring that the car will function properly. Thereafter the car was taken by the 2^nd opposite party to their workshop. This car has defects within its warranty period. The 2^nd opposite party failed to repair the car properly. The 2^nd opposite party kept the car in their work shop acknowledging that the vehicle has manufacturing defect. Hence this complaint filed.

          2) On receiving complaint, notice served properly to the opposite parties. 1^st & 2^nd opposite parties appeared through counsel and filed its version. 3^rd & 4^th opposite parties appeared through but no counter filed. Set ex-parte. The version of the 1^st & 2^nd opposite parties is as follows. The complaint is not maintainable either in law or facts. They admit purchase of the vehicle on 22/01/14 and consequent breakdown on 04/03/14. While he was driving, the vehicle got over heated and showed an indication on its cluster and when they checked the vehicle, found that its coolant was leaking. So the complainant had filled plain water in the radiator and continued the driving. But after some time the vehicle got off while running and he had contacted these opposite party’s break down team and they brought the vehicle to the workshop.

          3) On inspection it was found that the engine block was damaged and only because of that the vehicle was stopped in running and so the Engine block had to be replaced as the vehicle was driven even after the indication blinked in the cluster. So these opposite parties had informed the said fact to Maruti with the help of their TSM to do the work under warranty. When the engine block is replaced, it will have a new engine number and only because of that the complainant’s registration was delayed. While the vehicle was with the opposite parties’ workshop the complainant insisted to deliver the vehicle at his own risk and on his written undertaking the vehicle were handed over to the complainant on 11/04/14 the allegation otherwise denied. The allegation that the vehicle had stopped while taking the bride and groom and he had to seek other vehicle to continue the travel are unknown to these opposite parties. If the same are true these opposite parties have no responsibility for the said incident as the vehicle was taken by the complainant at his own risk discarding the words of these opposite parties. Opposite parties have given good and proper service to the complainant and they have delivered a defect less car to the complainant. The defect shown by the vehicle had occurred only by the negligence on the part of the complainant. The defects now occurred is a curable defect and is not all a manufacturing defect. The repair works of the vehicle had already over and the said fact was informed to the complaint during April 2014 itself, but the complainant had not taken delivery of the vehicle only to accuse these opposite parties and make illegal gain out of it. Keeping the vehicle idle in the workshop of these opposite parties may adversely affect the vehicle. No loss or mental agony is caused to the complainant because of any acts of these opposite parties and prayed for dismissal.

          4) The points for consideration are

                   a) whether there is any deficiency of service from the side of

                       opposite parties ?

                   b) Reliefs and costs ?

          5) Complainant appeared before the Commission and filed proof affidavits along with 7 documents. Complainant’s documents are marked as Exts. P1 to P7. Ext. P1 is the copy of Invoice dtd.20/01/14 for Rs.7,08,536/- issued by the 1^st opposite party; Ext. P2 is the copy of Lawyer Notice dtd.24/06/14; Ext. P3 is the copy of letter dtd. 30/05/14; Ext. P4 is the copy of application dtd.07/04/12 issued by the 2^nd opposite party to RTO, Guruvayoor; Ext. P5 is the copy of Insurance Certificate; Ext. P6 is the copy of Temporary Registration Certificate and Ext. P7 is the copy of Sale Certificate.  1^st & 2^nd opposite parties appeared before the Commission and filed proof affidavit along with 4 documents. Opposite parties documents are marked as Exts. R1 to R4. Ext. R1 is the copy of authorization letter dtd.13/06/17; Ext. R2 is the Job Card dtd. 04/03/2014; Ext. R3 is the Job Card dtd.18/07/2014 & Ext. R4 is the copy of letter dtd. 11/04/14 issued by the complainant.

          6) The complainant purchased a new Swift Dzire car manufactured by 4^th opposite party on 21/01/14. Ext. P1 proves the purchase. Ext. P4, Ext. P5, Ext. P6 & Ext. P7 are the subsequent documents applicable to a newly purchased car. Infact, the contesting opposite parties admit the purchase of the car. It is to be noted that the Manufacturer and its MD were remained ex-parte. The peculiar nature of these opposite parties are that they remained absent on hearing day and consequently set ex-parte. Thereafter filed its respective version without setting aside ex-parte order passed by this Commission. This Commission hence, cannot consider their respective pleas and evidence. The first and foremost case is that after few weeks of purchase, the car collapsed and brought to the premises of the contesting opposite parties. Ext. P3 document has been marked in evidence and same not has been objected by the opposite parties. Ext. P3 would prove that the car had a breakdown at mileage of 452 kms with a complaint of engine failure. The contesting opposite parties admits that the complainant reported a break down on 04/03/14. They further admits that the engine were replaced and the defect found to be leakage of coolant causing over heating to the engine of the vehicle. Ext. R2 Job card proves that the mileage was 452. The demand for repair was “running vehicle, not moving not starting”. The estimated delivery date shown as 25/03/14. Hence it has been proved that the vehicle has already met with a serious break down at its initial days of purchase.

          7) Now further case of the complainant is that the vehicle was purchased in connection with the marriage of his son and the vehicle has abruptly stopped in between the journey to their house with the newly wedded couples. The version of opposite party squarely denies the incident, since they are unaware of the incident. They further pleads that they have no responsibility as the vehicle has taken from their premises against their instructions. The complainant under took the responsibility for the consequences if arose and on that assurance the opposite party delivered the vehicle. Ext. R4 is the undertaking produced and marked by the opposite parties. It reads that the car has been taken by the complainant on 11/04/14 and on a condition to return the same. The complainant also undertaken all the responsibilities if arose in between the period. Hence it has been proved that the vehicle was in possession and use of the complainant on the relevant date of the disputed incident. Ext. R3 is the job card dtd. 10/07/14 showing the demanded repairs i.e. 1^st free service. It is pertinent to note that the opposite parties have no concrete case regarding the time when the vehicle has been returned after Ext. R4. The very case of the opposite party is that the completion repair work of the vehicle was informed to the complainant during 2014 April itself. But the complaint has not taken the delivery of the vehicle. Ext. R4 is just against the pleadings raised in their version. Therefore a strong presumption favours the case of the complaint.

          8) Ext. R3 further reads that the vehicle is within the premises of the  complainant in a satisfactory condition, hence Ext. P2 carries much weightage. It is seen that no reply were sent to Ext. P3.  If the case as shown in Ext. R3 found to be true, there is no reason for sending a reply calling them to remove the vehicle from premises of the opposite parties. Ext. R2 as a whole stands against all the angles of the case put forth by the opposite parties. Now they further states that the vehicle was kept idle and same may adversely affected the condition of the vehicle.

          9) Now the very case of manufacturing defect is to be proved by expert evidence. Ext. C1 report filed by the Expert Commissioner. The report reads that the vehicle cannot be driven on the road since it has not registered and having no insurance. Ext. P5 insurance certificate shows that the vehicle had valid insurance from 6/2/14 to midnight on 05/02/15. Ext. P6 is the Temporary Certificate of registration. Now the Ext. C1 reveals that the vehicle has been inspected at the college campus on 28/10/15. This statement is against the finding in Ext. C1. Ext. C1 further reads that the inspection could not conduct as the long distance running was not possible. The report states that no sophisticated tools for inspection was available and no manufacturing defect were observed during inspection. It is the duty of the Expert Commissioner to have all facilities or to require it to furnish a proper report before the Commission if tools are unavailable they are not expected to accept such a warrant.

          10) The counsel for the complainant further canvassed our attention to the Ext. C1 report. No other manufacturing defects were observed. Evidently no manufacturing defects are observed as the expert was not in a position to examine the vehicle with proper tools and furnish his finding by his report. It is simply strange that how he could fix that there was no manufacturing defect to the vehicle. The argument has some force. Here the peculiar nature of the case is that the main part of vehicle ie, the engine has been replaced even before 1^st service of the vehicle that is too within a short period of purchase. The fact by itself proves that the vehicle has a manufacturing defect. When all the circumstances strongly suggest such an inference and the non-completion of the registration formalities proves the probable case of the complainant. We are inclined to allow the complaint. It is true that the consumer spending a huge amount of money expected to get its value in return. The attitude of the ex-parte opposite parties and inconsistent version and evidence of opposite parties also proves that this is a fit case to be allowed directing replacement of vehicle.  

          In the result, the complaint is allowed and 3^rd & 4^th opposite parties are directed to replace the Maruti Dzire car with engine No. K12MN 1375088 and Chasis No. MA3EJKD1S00415410 having temporary Certificate of Registration bearing No. KL-09-Q-TEMP-4101 and Sale Certificate bearing No. VSL13003499 with a new car of same model within one month from the date of receipt of copy of this order. All the opposite parties are further directed to pay jointly or severally a cost of Rs.2,500/- (Rupees Two thousand five hundred only) to the complainant.

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 30^th day of  December 2020.

   Sd/-                                       Sd/-                                              Sd/-

Sreeja S                          Dr. K. Radhakrishnan Nair                C.T. Sabu

Member                          Member                                             President

                               Appendix

Complainant’s Exhibits :

Ext. P1 copy of Invoice dtd.20/01/14 for Rs.7,08,536/-

Ext. P2 copy of Lawyer Notice dtd.24/06/14

Ext. P3 copy of letter dtd. 30/05/14

Ext. P4 copy of application dtd.07/04/12

Ext. P5 copy of Insurance Certificate

Ext. P6 copy of Temporary Registration Certificate

Ext. P7 copy of Sale Certificate. 

Opposite Party’s Exhibits :

Ext. R1 copy of authorization letter dtd.13/06/17

Ext. R2 Job Card dtd. 04/03/2014

Ext. R3 Job Card dtd.18/07/2014

Ext. R4 copy of letter dtd. 11/04/14 issued by the complainant.

Id/-

Member