By Sri. Mohamed Ismayil.C.V, Member
The grievance of the complainant is as follows:
1. On 26-10-2016 Mr. Abdul Basheer, who is the uncle of the complainant had purchased a Toyota Etios Liva V.D (Engine No. INDIA12699, chassis No. MBJK 49BT4000943221016) car (KL 10 AW 8770) from the opposite parties for the use of the complainant. According to the complainant, he is depending upon his uncle. On 02-01-2017 the complainant along with his uncle went to his relative’s house at Ponmala wherein the car could not start due to breakdown. On the same day the complainant informed the trouble to the first opposite party and on 03-01-2017 a mechanic of the opposite party attended the complaint. According to the complainant, it was informed by the mechanic that the breakdown of the car is a result of defect of battery and advised to visit the service centre on the very next day for replacement of battery. Subsequently, on 04-01-2017 the complainant handed over the car to the service centre of the first opposite party. On the next day the first opposite party reported that there is no complaint to the battery and the car is in good condition. But at the same time, the first opposite party failed to disclose the reason for breakdown of the car. On the same day, breakdown was again occurred at Melmuri, Malappuram by 7 PM. When the issue was raised before the first opposite party it was replied by the first opposite party that, they can attend the vehicle only on the next day if towing was not arranged by the complainant. So the complainant was compelled to spent whole night inside the car for security reasons. On 06-01-2017 the staffs of the first opposite party named Bineesh and Pramod came and after examination and it was told that the battery was having manufacturing defect. So the first opposite party removed battery manufactured by the Exide company from the car and they installed another used battery manufactured by TATA company. The first opposite party assured that, they will replace the battery within one week of time and advised to take used battery until replacement. It is stated in the complaint that the vehicle continued to occur breakdown at different places on different occasions even using the substituted battery. But the opposite party sought time for installation of new battery instead of giving proper explanation to the defects of the car. According to the complainant, he is suspicious of manufacturing defects to the car. The complainant informed the first opposite party that the complaint of the non starting of the car is a result of suspected manufacturing defect of dynamo and its associated wiring which causing failure in charging of the battery of the car. But the first opposite party was evaded from his responsibility to provide proper explanation to the complaint. The first opposite party removed the original battery from the car on 06-01-2017 on the assurance of replacement of a new battery within one week. But the first opposite party neither replaced the battery nor the defect of the car is rectified. According to the complainant, he became a laughing stock among the public and relative due to the frequent breakdown of the car. It is also stated in the complaint that the complainant also lost peace of mind. The second opposite party manufactured a defective car and the same is sold by the first opposite party to the complainant. The opposite parties committed deficiency in service towards the complainant. So the complainant approached this Commission to get a order directing the opposite parties to replace the car with new car belonged to the same model and to pay Rs. 50,000/- to the complainant as compensation for the sufferings of mental agony and hardship due to the deficiency in service by the opposite parties. The complainant also prayed for a direction to pay the cost of the proceedings to the complainant.
2. The complainant is admitted on file and issued notice to the opposite party. The opposite party entered appearance and filed version. The complainant filed an application for impleading the manufacturer of the vehicle as supplemental second opposite party in the proceedings. The above application is numbered as I.A 521/17 and same is allowed by the Commission. The Commission issued notice to the supplemental second opposite party. The supplemental second opposite party appeared and filed version.
3. In the version of the first opposite party, who is the dealer of the vehicle, the allegation raised by the complainant is denied. The first opposite party admitted the purchase of the vehicle by Mr. Abdul Basheer S/o Hassan Kutty as stated in the complaint. According to the first opposite party, the complainant is not a consumer. It is further contented that the complainant had no right to file this complaint. The first opposite party stated that there is non joinder of necessary party as the complaint of manufacturing defect is pleaded by the complainant and so manufacturer is to be impleaded in this proceeding. The incident of breakdown occurred on 02-01-2017 is admitted by the first opposite party. But at the same time the first opposite party denied the allegation of assurance of replacement of battery and finding of battery problem by the staff of the opposite party. It is admitted by the first opposite party that on 04-01-2017 the vehicle was reported in the institution of the first opposite party and found that battery was fully discharged causing fault in start of the vehicle. It is stated by the first opposite party that the vehicle was taken back on 05-01-2017 after recharging of the battery. The first opposite party also admitted the breakdown of the car occurred on 05-01-2017 at 7 pm and information was also received from that respect by the first opposite party. The first opposite party denied the allegation of direction for towing of the vehicle and denial of service on that day. According to the first opposite party, as per the direction given by the owner of the vehicle the staff of the first opposite party attended the vehicle on the very next day. It is further stated by the first opposite party that nobody has informed the complainant as the Exide company battery is having manufacturing defect. According to the first opposite party, the Exide battery was removed from the vehicle and substituted with a TATA battery in order to avoid the delay resulting due to examination of battery and its consequential proceedings. But the owner did not handed over the copy of Registration Certificate of the vehicle irrespective of repeated demand for replacing the battery. So far no more case of breakdown of the vehicle was reported before the first opposite party by the complainant. Moreover the complainant or owner of the vehicle were not contacted the first opposite party ever since 06-01-2017. But the complainant and owner of the vehicle failed to provide copy of Registration Certificate for replacement of battery. There is no deficiency of service on the part of the first opposite party. It is contented by the first opposite party that there is no defect to the dynamo and to its associated wiring and vehicle is free from manufacturing defect. The first opposite party could not take further step due to failure to handover the copy of the registration certificate by the owner of the vehicle. There was no suffering of mental agony and hardships to the complainant and the complainant does not deserve any relief as claimed in the complaint. So the first opposite party prayed for dismissal of the complaint with
compensatory cost of Rs. 30,000/- from the complainant.
4. The second opposite party is the manufacturer of the vehicle involved in the dispute, formed under the provisions of the Companies Act, 1956. According to the second opposite party, it is one of the leading car manufacturers in India and is known for its quality reliable products. It is contented by the second opposite party that the relationship between the opposite parties is on principal to principal basis and issues related to booking, delivery, cancellation, servicing, customer relations, etc. are independently handled by the dealer, who is the first opposite party. So the
second opposite party is not responsible for the acts and omissions of the first opposite party. According to the second opposite party the present complaint is not maintainable and it is filed in individual capacity not on behalf of the owner of vehicle. It is also contented by the second opposite party that the complainant is not a consumer as defined in the Consumer Protection Act. It is stated in the version that the complainant had tampered with the electrical fittings by fitting non genuine fog lights in the vehicle from unauthorized persons, the battery in the vehicle got drained/ damaged and this aspect was informed to the complainant. It is also stated in the version of the second opposite party that the complainant failed to produce the copy of the warranty card and invoice for replacement of battery. It is further stated that due to inaction on the part of the complainant, the problem persisted due to non replacement of the old battery. According to the second opposite party there is no manufacturing defect with the vehicle and there is no deficiency in service on the part of the opposite parties. According to the second opposite party the claim of the complainant is devoid of any merits and same is to be dismissed.
5. The complainant and first opposite party filed affidavits. The complainant produced documents and marked as Ext. A1 to A8. Ext. A1 document is the copy of delivery note of the vehicle purchased by the uncle of the complainant. Ext. A2 document is the copy of Registration Certificate of the vehicle. Ext. A3 document is the copy of Vehicle Condition Report Form/Job Record dated 03-01-2017 issued by the first opposite party. Ext. A4 document is the copy of Vehicle Test Report dated 05-01-2017 issued by the first opposite party. Ext.A5 document is the letter dated 05-01-2017 issued by the service staff of first opposite party to the owner of the vehicle. Ext.A6 document is the copy of e-mail reply sent by the second opposite party to the owner of the vehicle. Ext.A7 document is the copy of call history details showing the calls made by the complainant to the office of the first opposite party between 09-04-2017 and 20-04-2017. Ext A8 document is the copy of e-mail letter dated 07-04-2017 sent by the owner of the vehicle to the second opposite party. The complainant filed an application numbered as I.A 520/2017 to appoint an expert commissioner for inspecting the battery of the vehicle. The Commission allowed the application and a commissioner was appointed. After the inspection of battery, commissioner filed a report and same is marked as Ext.C1 document. The second opposite party did not file affidavit to substantiate the pleadings in the version. So the Commission need not consider contentions raised in the version of the second opposite party. No documents were produced from the side of the first opposite party.
6. Heard both sides in detail. Perused documents and affidavit. The points arisen for the consideration of the Commission are as follows:
- Whether the complainant is a consumer coming under the provision of Consumer Protection Act?
- Whether there is deficiency in service on the part of the opposite parties?
- If yes, what will be relief and cost.
7. Point No. (1): -
The grievance of the complainant is that on 26-10-2016 a car was purchased from the opposite parties and within a short span of time a number of breakdown occurred to the car. It is alleged in the complaint that on 02-01-2017 and 05-01-2017 breakdowns were occurred repeatedly and on 06-01-2017 the first opposite party removed original Exide company battery from the car and installed an used battery after undertaking of replacement with new one within a week. Even though the complainant was suspicious of manufacturing defect to the car, but the first opposite party reported that there was leakage of battery and so replacement will meet the requirements. Unfortunately, the opposite parties did not replace the battery so far. It is also alleged that the vehicle continued to occur breakdowns at different places on different occasions. On the contrary, the first opposite party contended that the complainant is not a consumer coming under the purview of the Consumer Protection Act. The first opposite party challenged the locus standi of the complainant to file this complaint. Both parties admitted that vehicle was purchase by one Abdul Basheer and he is the owner of the vehicle as per the registration certificate. It is pleaded in the complaint that the complainant is a dependent of his uncle, the owner of the vehicle and the vehicle was purchased for the use of the complainant. No contra evidence is available against these pleadings in this case. Ext C1 document clearly shows that the complainant is in use and possession of the vehicle. The arrangement made between registered owner of the car and the complainant need not be looked into by the Commission at this point of time. So under these circumstances the Commission finds that complainant got locus standi to file this complaint and he is a consumer under Consumer Protection Act.
8. Point No. (2) and (3):-
Besides the allegations of defects in battery, the complainant also alleged manufacturing defect of the car. But the complainant failed to adduce evidence to show that vehicle is affected with manufacturing defects. It is admitted by the both sides that original battery availed at the time of purchase of the vehicle was removed by the first opposite party. The original removed battery was installed by the manufacturer at the time of production of the car. The frequent occurrence of breakdown of the car is proved in this case. The first opposite party also stated that complainant was failed to produce copy of registration certificate in order to replace the defective battery with a new battery. Moreover the first opposite party did not produce the original removed battery for inspection before the expert commissioner appointed by the Commission. The purchaser of a new vehicle is not expected to use an old substituted battery in his new car. The first opposite party is also failed to produce any kind of evidence to show that an earnest attempt was made for getting the copy of registration certificate from the complainant. So the story of non production of copy of registration certificate of the car is not believable. The Commission need not look into the strength and capacity of the used battery and its condition mentioned in the commission report. The Commission also finds that the complainant got every right to get replaced the defective Exide company battery with a new one. The delay caused for replacement of battery is not satisfactory and Commission finds that the opposite parties are committed deficiency in service towards the complainant. So the Commission allows the complaint in the following manner:
- The opposite parties are directed to replace the battery inspected by the commissioner appointed in this case with a new Exide Company battery for the use of vehicle. The complainant need not hand over the copy of registration certificate to the opposite parties as it was served along with copy of complaint in this proceedings.
- The opposite parties are directed to pay Rs. 50,000/-(Rupees Fifty thousand only) as compensation to the complainant for the sufferings of mental agony and hardship due to the deficiency in service committed by the opposite parties.
- The opposite parties are also directed to pay Rs. 10,000/-(Rupees Ten thousand only) to the complainant as the cost of the proceedings.
The opposite parties shall comply this order within 30 days from the date of receipt of copy of this order otherwise the entire amount including the market price of the Exide Company battery existed on the date of this order shall bear 9% of interest from the date of order till realization.
Dated this 30th day of December, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A8
Ext.A1 : Document is the copy delivery note of the vehicle purchased by the uncle of
the complainant.
Ext A2 : Document is the copy Registration Certificate of the vehicle.
Ext A3 : Document is the copy Vehicle Condition Report Form/Job Card dated 03-01-
2017 issued by the first opposite party.
Ext A4 : Document is the copy of Vehicle Test Report dated 05-01-2017 issued by the
first opposite party.
Ext A5 : Document is the letter dated 05-01-2017 issued by the service staff of first
opposite party to the owner of the vehicle.
Ext.A6 : Document is the copy of e mail reply sent by the second opposite party to
the owner of the vehicle.
Ext A7 : Document is the copy of call history details showing the calls made by the
complainant to the office of the first opposite party between 09-04-2017
and 20-04-2017.
Ext A8 : Document is the copy of e mail letter dated 07-04-2017 sent by the owner of
the vehicle to the second opposite party.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
Ext.C1 : Commissioner’s Report.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
