BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 61/2007 Filed on 23.02.2007

Dated : 16.08.2012

Complainant:

T.P. Abraham, Thoppil Veedu, Elambazhannoor P.O, Chadayamangalam, Kollam-691 534.

(Appeared in person)

Opposite parties :

1. Indus Motors, Pattom P.O, Thiruvananthapuram.

   (By adv. P.K. Aboobacker)

2. Aneesh Kadakkal, Dy. Team Leader, C/o Indus Motors, Pattom, Thiruvananthapuram.

    

3. Maruti Udyog Ltd., 11^th Floor, Jeevan Prakash-25, Kasturba Gandhi Marg, New Delhi- 110 001.

(By adv. V. Santharam & S. Suresh)

This O.P having been heard on 16.07.2012, the Forum on 16.08.2012 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The complainant, a senior citizen, who has conducted the case in person has approached the Forum for redressal of his grievance and the facts of the case are the following: The complainant had purchased a Maruti Omni from the 1^st opposite party on 27.12.2006. On the first day itself, the sound and other allied matters were not satisfactory to the complainant. The matter was informed to the 1^st opposite party on the very next day and the 1^st opposite party assured to rectify the defects during the first service. Accordingly the same was entrusted at the 1^st opposite party's workshop after detailing the defects. But when the vehicle was returned in the evening after the service, it was not in condition. The vehicle had to be again given to the workshop on the very same day itself and the complainant had to make alternative arrangements to return home. The vehicle was returned after 4 days and even after that since the vehicle was not in good condition it had to be returned to the workshop on several occasions. After one month & 6 days of the purchase of the vehicle, the vehicle had to be repaired for 6 days in the workshop. In the above circumstance, complainant doubts whether the vehicle sold to him is a new vehicle or not. Furthermore, the offers made have not been given to the complainant. An amount of Rs. 11,500/- has been collected from the complainant towards additional warranty for which also no warranty card has been issued. Hence this complaint.

1^st opposite party in their version contends as follows: The above complaint is not maintainable either in law or on facts. The above complaint is bad for non-joinder of necessary parties. The allegation of the complainant that the Maruti Omni purchased from the 1^st opposite party was found to have several mechanical defects from the same day of taking delivery of the vehicle is not true or correct and hence denied. Complainant had not availed the service facility promptly. As per the vehicle history the vehicle was brought to the Kottayam service station of this opposite party on 02.02.2007 for running repair with a demand of engine overhauling. The vehicle was taken to workshop and the water temperature gauge assembly and the engine coolant temperature sensor was repaired and the vehicle was delivered on the same day to the complainant after being satisfied with the works done. The vehicle was again brought on 03.02.2007 with the complaint of overheating and the water pump belt was replaced, battery light corrected and temperature gauge was also corrected. As per the document No.3 produced by the complainant the vehicle was brought for second free service on 27.02.2007 and along with the free service the demanded works were done by this opposite party and the vehicle was delivered after satisfied with the works done. Complainant did not point out the alleged defect in the vehicle at the time of the said service. The said service was carried out under warranty to the entire satisfaction of the complainant. The vehicle was road tested and the complainant was fully satisfied with the same. Only on two occasions the vehicle was brought with the complaint of overheating and missing and those times the said demanded works were done up to the satisfaction of the complainant and he had taken the vehicle after a test drive. Whenever the complainant had brought the vehicle for engine overheating this opposite party had rectified the demanded repairs. The engine heating of the vehicle or alleged chocking of radiator would arise when the vehicle is driven without complying with the directions in the users manual. The over heating of any vehicle will be caused by the poor habit of driving of the said vehicle and it is not because of any defect of the vehicle. Complainant failed to place any materials on record in order to substantiate the claim of any negligence, deficiency in service on the part of the opposite parties. There is no defect in the vehicle in question. Complaints pointed out by the complainant are only normal defects and the same are all curable defects. 2^nd opposite party remain exparte.

The 3^rd opposite party has stated that the complainant was provided with coupons for availing three free inspection services at 1000, 5000 and 10000 kms and periodic maintenance paid services at 20000 and 30000 or on completion of 1,6,12 months, 24 months and 36 months respectively whichever occurs first from the date of sale of vehicle. The liability of 3^rd 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 complainant is not entitled for the warranty benefits under circumstances as set out in clause 4 of the service booklet. The complainant violated warranty by not availing free and periodic maintenance services as per schedule enumerated in “Owner's Manual & Service Booklet”. Complainant brought the vehicle in question to the workshop of 1^st opposite party on 31.01.2007 at 3891 km for demanded repairs 'Engine knocking/ misfiring'. The 1^st opposite party corrected the engine misfiring and replaced leaf spring bushes under warranty to the entire satisfaction of the complainant. The complainant brought the vehicle in question to the workshop of 1^st opposite party on 02.02.2007 and 03.02.2007 at 4172 km for engine overheating. The engine heating of vehicle or alleged chocking of radiator would arise when the vehicle is driven without enough coolant or no coolant in it. The 1^st opposite party rectified the demanded repairs by replacing water pump belt and corrected temperature gauge and coolant leakage. The complainant took delivery of vehicle after attending the same by 1^st opposite party without any protest and demur. Complainant brought the vehicle in question to the workshop of 1^st opposite party vide job card No. JC 08001192 dated 28.05.2008 at 14,820 km for paid service. Complainant did not point out the alleged defect in the vehicle at the time of said service. The 1^st opposite party carried out the said service under warranty to the entire satisfaction of the complainant. The vehicle was road tested from 14820 km to 14826 km. The complainant was fully satisfied and endorsed the same on the job card. The complainant failed to place any material on record in order to substantiate the claim and any negligence, deficiency in service on the part of 3^rd opposite party. There is no manufacturing defect in the vehicle in question. The opposite parties never refused to provide warranty service as per terms and conditions. The opposite parties duly discharged their warranty obligations which are specific as per clause 3 of warranty policy. The complainant has no right to demand anything beyond the terms and conditions of warranty against the 1^st opposite party. Hence prays for dismissal of the complaint with costs.

Complainant has filed affidavit and marked Exts. P1 to P12 on his behalf. An expert commissioner has been appointed by the Forum who has been examined as CW1 and his report has been marked as Ext. C1. DW1 has been examined on the part of the opposite parties. Once this case was finally decided by this Forum, but the same has been remitted back to the Forum for giving opportunity to the 1^st opposite party to file version and to give opportunity to the 1^st opposite party and the complainant to adduce evidence.

From the contentions raised, the following issues arise for consideration:

1. Whether the complainant has been sold an old vehicle as a new one?

2. Whether the vehicle suffers from any manufacturing defects?

3. Whether there is any deficiency in service on the part of the opposite parties?

4. Reliefs and costs.

Points (i) to (iv):- The allegation of the complainant is that the vehicle purchased by the complainant developed defects from the very first day of its purchase. Complainant has furnished records in support of his allegations. An expert commissioner has been appointed by the Forum to ascertain the condition of the vehicle and the report has been marked as Ext. C1.

As per Ext. C1, the vehicle has been taken for the first free service on 02.01.2007 at 888 km odometer reading wherein in addition to the routine scheduled first service maintenance works, the specific demanded repair by the customer was to check for misfiring on gas/knocking of the engine. The vehicle was brought back at 891 km on the same day evening, the carburetor was overhauled, IAC valve (Inlet Air Control Valve) was corrected and the stepper motor-II was also checked by the service persons and the same has been delivered only on 05.01.2007. From Ext. P3 dated 31.01.2007 it could be seen that the vehicle has been entrusted to Indus Motors and the following repairs have been carried out, viz; Rung repair engine misfire corrected, leaf spring bushes renewed. The commissioner has also reported the same and further reports that cleaning of gas kit has been done again at that time.

As per Ext. P4, the engine coolant temperature sensor and water gauge assembly have been corrected. The commissioner also reports the same and according to the commissioner the reason for brake down was overheating of the engine. As per Ext. P6(a) dated 25.06.2007, the engine misfiring has been seen corrected. Again as per Ext.P6(3) engine misfiring has been corrected by engine tuning, gas gauge working also corrected.

The commissioner has reported that the vehicle has some missing while accelerating. Hence the gas kit fitted on the vehicle was dismantled and inspected, the LPG solenoid filter was found clogged, the dark brown coloured impurities appeared like rust particles from the gas fuel tank and the evaporator assembly was found assembled in a wrong way. According to the commissioner the engine cylinder condition was found reasonably well.

The commissioner in his conclusion has reported that “the vehicle is a dedicated LPG vehicle and the petrol fuel is recommended to use only as a pilot fuel. The engine systems are tuned to operate on LPG. But the vehicle is being driven on petrol fuel most of the time as the LPG pump is not available near to the residence of the complainant. (the nearest one is at Kottarakkara, which is about 24 km from his residence). As the petrol tank capacity is only 5 liters, the vehicle could not be driven for a long drive on petrol alone”. The complainant during cross examining the commissioner, CW1, had put a question “continuous ആയിട്ട് petrol-ല്‍ ഓടുന്നത് കൊണ്ടും ഈ വണ്ടിക്ക് കുഴപ്പങ്ങള്‍ ഉണ്ടാകാന്‍ സാദ്ധ്യതയില്ല എന്ന് പറഞ്ഞാല്‍ ശരിയല്ലേ (Q) Manufacturer പറഞ്ഞിരിക്കുന്നത് petrol pilot fuel ആയിട്ടാണ്. LPG-ല്‍ ഓടാനാണ് വണ്ടി tune ചെയ്തിരിക്കുന്നത്. Petrol-ല്‍ ഓടിക്കാം, പക്ഷേ ചില problems appear ചെയ്യാം. ഒരു smooth riding ആയിരിക്കില്ല, ചില missing ഉണ്ടാകാം. Engine-ന് സാരമായ തകരാറ് ഉണ്ടാകില്ല”. Further the commissioner has deposed that the service was not prompt and the complainant has not been provided expert service.

But in the owner's manual, on page 113, 'Introduction to LPG' under the head safety precautions (Do's), it has been stated that 'if engine does not start in LPG mode, start in petrol mode and get the vehicle inspected by Maruti authorized workshop'. Furthermore, on page 114 under the head 'starting the engine' it has been stated that engine can be started normally both in LPG mode and petrol mode. It could be seen that there is no mentioning regarding petrol as pilot fuel. The hand book has been produced and the pages have been marked.

As per the report of the commissioner, it is evident that on 02.01.2007 i.e; after 5 days of purchase of the vehicle, there was misfiring on gas/knocking of the engine which according to the complainant is due to manufacturing defect. In Ext. C1, it has been further stated that on the same day the vehicle was again given for repeat job and carburetor was overhauled, IAC valve was corrected.

Considering all the above discussions, it could be concluded that if the vehicle did not have any problem, there was no need for the complainant, who is a senior citizen and who has approached this Forum in person, to approach the opposite party within 5 days from the date of purchase. Furthermore, the vehicle was returned to the complainant after 5 days only. During cross examining DW1, he has deposed that “ഈ വാഹനത്തിന്‍റെ model MPFI (Multi Point Fuel Injection) ആണെന്ന് പറഞ്ഞാല്‍ ശരിയാണോ (Q) ശരിയല്ല (A) But on perusing Ext. P3, it is seen that the model is MT ENG MPFI. While cross examining DW1, he has deposed that the report of the expert commissioner that “The vehicle has developed overheating many times and got break down while it was driven on LPG. The engine coolant temperature sensor and water temperature gauge assembly were found damaged and replaced. But the overheating problem of the vehicle still persists during long drives. The LPG evaporator of the vehicle was found assembled in a wrong way. The engine and gas kit was not tuned properly. This may be one of the reasons for misfiring, less mileage and low pulling of the vehicle. The gas kit was dismantled, cleaned and serviced many times at different service centres. This could be treated as a service error” are correct. Though the opposite parties have contended that the complainant had serviced the vehicle at various unauthorized service centres, the same has not been corroborated with ample evidence. The pre-delivery inspection report of the vehicle has been done on 27.12.2006 as per Ext. C1 and the vehicle has been delivered on 27.12.2006.

As per Ext. P8 overleaf the predelivery inspection is seen done on 19.11.2006. Complainant submits that as per Ext. P12, the month and year of manufacture of the vehicle is December 2006 and that from Ext. P6 it is evident that the vehicle mentioned has been done PDI before manufacturing the same. DW1 has deposed that PDI will be done at the time of unloading the vehicle. The model of the vehicle is Maruti Omni LPG, but in Ext. P6(1) the model is seen stated MPFI. Complainant hence alleges that MPFI model vehicle has been delivered to some others after conducting PDI on 19.11.2006 and as the same was defective it was recalled and after changing the model by replacing carburetor LPG Gas kit etc. the vehicle has been changed to Omni LPG gas model manufactured in 2006 December. But there is no such pleadings in the complaint to that effect. The fact that the vehicle has been taken delivery by the complainant satisfactorily does not mean that the complainant was satisfied of the perfect condition of the vehicle. The defects can be noticed only after using the vehicle on the road. It is only after putting the vehicle into regular use that the defects come out one by one and such defects cannot be understood at the time of purchase. At the time of purchase the complainant will be satisfied about the looks of the vehicle and he will take away the same and the defects come only after considerable use. Hence the complainant could not use the vehicle defect free and the desire of a new buyer has been disappointed by the performance of the vehicle. From the very beginning the vehicle was taken to the workshop and the main duty of the complainant was repairing the vehicle. The expert commissioner has concluded that the vehicle has developed overheating many times and got break down while it was driven on LPG. The engine coolant temperature sensor and water temperature gauge assembly were found damaged and replaced. But the overheating problem of the vehicle still persists during long drives. Further CW1 reports that the LPG evaporator of the vehicle was found assembled in a wrong way. The engine and gas kit was not tuned properly. This may be one of the reasons for misfiring, less mileage and low pulling of the vehicle. That the gas kit was dismantled, cleaned and serviced many times at different service centres. This could be treated as a service error and he has finally concluded that the replacement of existing gas conversion kit and LPG cylinder may solve the existing problems of the vehicle.

CW1 has not been cross examined by opposite parties. In the light of the above discussions, this Forum is of the view that the complainant has been made to suffer due to the deficiency in service on the part of the opposite parties in not servicing the vehicle properly for which the complainant has to be compensated. Though the complainant has pleaded that Rs. 11,500/- has been collected from him towards extended warranty, there is no evidence for the same, since Ext. P5 does not mention anything regarding extended warranty. As per the conclusion in Ext. C1, this Forum finds that the complainant is entitled for getting the vehicle repaired free of cost. If the opposite parties 1 & 3 fail to repair the same within one month from the date of receipt of the order the opposite parties 1 & 3 shall refund the price of the vehicle. On the road price of the vehicle was Rs. 2,59,513/-. Considering the entire facts into consideration and after deducting the depreciation value, we fix the price of the vehicle as Rs. 2,00,000/-. 2^nd opposite party is exempted from any liabilities.

In the result, complaint is allowed. Opposite parties 1 & 3 shall jointly and severally rectify the defects in the vehicle in dispute to the satisfaction of the complainant free of cost within a period of one month from the date of receipt of order, failing which the opposite parties 1 & 3 shall jointly and severally pay Rs. 2 lakhs to the complainant and on acceptance of the said amount complainant shall return the vehicle in dispute to the opposite parties. The opposite parties 1 & 3 shall also pay an amount of Rs. 10,000/- towards compensation and Rs. 5,000/- as costs of the proceedings. Time for compliance one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of the order.

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 16^th day of August 2012.

Sd/-

S.K. SREELA : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

 BEENAKUMARI. A : MEMBER

C.C. No. 61/2007

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - T.P. Abraham

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of proforma invoice dated 27.12.2006

P2 - Copy of receipt dated 27.12.2006.

P3 - Copy of invoice dated 31.01.2007.

P4 - Copy of job card retail cash memo dated 02.02.2007

P5 - Copy of receipt dated 27.12.2006.

P6 - Copy of cash memo dated 08.02.2007

P6(2) - Copy of job card retail cash memo.

P6(3) - Copy of cash bill No. 7786 dated 01.09.2007.

P6(4) - Copy of job card retail cash memo dated 28.05.2008.

P6(5) - Copy of credit bill dated 04.08.2008.

P7 - Copy of provisional registration.

P8 - Copy of maintenance service record.

P9 - Copy of service booklet performance.

P10 - Copy of page 3 of Owner's manual & service booklet

P10(a)- Copy of page 8 of Owner's manual & service booklet

P10(b)- Copy of page 114 of Owner's manual & service booklet

P10(c)- Copy of 2^nd free inspection coupon booklet

P11 - Copy of cash memo dated 05.01.2007

P11(a)- Copy of letter dated 27.12.2006 issued by Federal Bank

P11(b)- Copy of cash memo dated 02.01.2007

P12 - Copy of certificate of registration.

III OPPOSITE PARTY'S WITNESS :

DW1 - Deepak. S

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT

CW1 - Sabu V.R

C1 - Commission Report

Sd/-

PRESIDENT