By Sri. Chandran Alachery, Member:

The Complaint is filed under section 12 of the Consume Protection Act for an order directing the Opposite parties to repay the present value of the vehicle which amount to Rs.18,35,000/- to the Complainant, to pay compensation of Rs.26,100/- as loss towards taxi charges, to pay Rs.75,000/- towards mental agony and suffering and to pay Rs.20,000/- towards cost of the proceedings.

2. Complaint in brief:- The Complainant on 25.06.2014 booked for a BMWX-1 model car with the Opposite Parties by paying Rs.1,00,000/- as booking amount. Later, the sales executives of 2^nd and 3^rd Opposite Parties visited the Complainant and gave promises and instigation to the Complainant to purchase Ssangyong Rexton RX 270 XVT-RX7 Car by narrating somany particulars. So being instigated, the Complainant cancelled the booking of BMW car and purchased the Ssangyong Rexton Car. The value of the vehicle at the time purchase was Rs.21,45,646/- as per invoice dated 20.08.2014. The 2^nd Opposite Party gave delivery of the vehicle through 1^st Opposite Party. The 1^st Opposite Party is the delivery outlet and 2^nd Opposite party is the sales as well as service outlet. 3^rd Opposite Party is the importer of the vehicle to India. Inorder to purchase the car, the Complainant raised money by loan from Canara Bank under hypothecation of car. The car is having 3 years warranty from the date of purchase or 100000 km which ever occurs earlier. It was stated in the brochure. In warranty information and maintenance booklet supplied to the Complainant shows 2 years warranty only. This is a clear case of unfair trade practice from the part of Opposite Parties. In the beginning itself, the vehicle was having slight vibration, Hitting sound on the steering road while traveling through the gutters on the road and also showed a rigidity in the steering wheel. The Complainant informed to 1^st and 2^nd Opposite Parties. The 1^st and 2^nd opposite parties informed the Complainant that it will not be there if the vehicle completes 2000 – 3000 km running. When the Complainant approached the 1^st and 2^nd Opposite Parties in the month of November 2014, 1^st and 2^nd Opposite Parties informed the Complainant that it will be cleared at the time of 1^st free service. Thereafter, the Complainant felt difficulty in running the vehicle. The steering of the vehicle become rigid while running, vibration in steering wheel and hitting sound was there. The Complainant contacted the 2^nd Opposite party through telephone and reminded the same but they did not took it seriously. On 26.12.2014, while the Complainant was returning from Manglore, it was found very difficult to drive since the steering defect. When the complainant reached in between Iritty and Boys town, the vehicle met with an accident. The accident occurred only due to the rigidity of steering. The accident occurred when the vehicle ran about 3200 km. The 1^st Opposite Party took the vehicle and entrusted to 2^nd Opposite party on 07.01.2015. The 2^nd Opposite party carried out works as accident repair and charged Rs.46,970/- on 24.01.2015. Out of Rs.46,970/- the Complainant paid Rs.10,680/- and the balance amount is paid by the insurer. The accident was caused only due to the defect in the vehicle. On 24.01.2015, the 2^nd Opposite Party delivered the vehicle to the Complainant ensuring that every faults are rectified. But on driving, the Complainant found that the defects are still persisting. Later the complainant found leakage of Coolant from radiator, noise from all side doors, noise from steering, back lash while changing the gear, vibration to whole vehicle, high and abnormal sound from engine while running, abnormal noise from engine etc in the vehicle. The Complainant found it very difficult to drive the vehicle. When reported, the Opposite parties not responded to the problems. The Complainant hence restricted the usage of car and depended on taxi. The 2^nd Opposite party took the vehicle for another service on 18.04.2015 and returned it on 23.04.2015 claiming that necessary repairs are done. But the Complainant found that the Complaints are still persisting. The officials of 2^nd Opposite Party pleaded one more chance to rectify the defects and taken the car from service on 13.12.2015 and returned on 23.12.2015. But the defects are not actually rectified by them. Even if the Opposite Parties assured 12.5 km mileage to the vehicle, the Complainant got only 8 km per litre. The act of Opposite parties are clear deficiency of service and unfair trade practice from their side. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notices were issued to the Opposite Parties and the Opposite Parties appeared before the Forum and filed version. In the version of 1^st and 2^nd Opposite parties, 1^st and 2^nd Opposite Parties contended that 1^st Opposite Party is an unnecessary party in the proceedings. 1^st Opposite Party is the showroom of 2^nd Opposite Party only, 2^nd Opposite Party is the dealer. 1^st Opposite Party is not equipped with the facilities as fixed by 3^rd Opposite party. The 1^st Opposite party had not occasion for rendering service to the Complainant as regards the vehicle in question. There is no deficiency of service from the part of 1^st Opposite party. The entire allegations in the complaint are denied by the 1^st and 2^nd Opposite Parties. The Opposite Parties assured 3 years warranty and it is still existing. The warranty ends only on 20.08.2017. A vehicle be it a high end vehicle or otherwise, if used roughly all through, the vehicle will develop mechanical problems. The 2^nd Opposite Party never informed the complainant that the defects will be over by running 2000-3000 kms. The vehicle was delivered by 2^nd Opposite party at the residence of the Complainant by one Jabir. The accident had not happened due to the defect in the steering rod. The accident occurred only due to the rash and negligent driving of Complainant who had driven the vehicle. The accident was not reported to any authorities. The 2^nd Opposite party submits that the charging of Rs.10,680/- is in accordance with the norms. The Complainant not produced the service book at the time of repair. The 2^nd Opposite party attended to the Complaint of the Complainant as and when it was reported. The service records proves the rendering of service by the 2^nd Opposite Party. The vehicle was delivered to the Complainant on 24.01.2015 after curing defects cent percent. On 18.04.2015 also the 2^nd Opposite Party took the vehicle and delivered on 23.04.2015. There is no deficiency of service or unfair trade practice from the side of 1^st and

2^nd Opposite Parties. In the version of 3^rd Opposite Party, 3^rd Opposite Party contended that 3^rd Opposite party did not have any knowledge about the booking of BMW car by the complainant and subsequent cancellation. This 3^rd Opposite Party had no knowledge about the alleged promises made by the representatives. The above said vehicle was delivered on 20.08.2014 and the warranty also starts from that date. The owner of the car is eligible for 3 years warranty. Warranty period shown in booklet as 2 years is only a clerical mistake. The allegation that the vehicle shown vibration, hitting sound on steering rod while traveling etc are not reported to the Opposite parties by the Complainant. It is not true that the vehicle is having defect of steering. No such complaints are reported before accident. All other allegations in the complaint are denied by this 3^rd Opposite Party. There is no manufacturing defect in the vehicle sold to the Complainant. It is submitted that the defect pointed out b- 5 -y the Complainant in the service was properly attended under warranty. The manufacturer has no obligation other than what is stated in the warranty policy. There is no deficiency of service or unfair trade practice from the side of 3^rd Opposite Party.

4. On perusal of complaint, version and documents, the Forum raised the following points for consideration.

1. Whether there is deficiency of service and unfair trade practice from the side of

Opposite Parties?

2. Relief and costs.

5. Point No.1:- The Complainant filed proof affidavit and the Complainant is examined as PW1 and Ext.A1 to A10 documents are marked from their side. The commission report is marked as Ext.C1. 2^nd Opposite Party filed proof affidavit and 2^nd Opposite Party is examined as OPW1 for and on behalf of 1^st Opposite Party also. 3^rd Opposite Party filed proof affidavit and 3^rd Opposite Party is examined as OPW2 and Ext.B1 and B2 documents are marked from their side. Ext.A1 is the proforma invoice dated 24.06.2014. Ext.A2 is the invoice copy dated 20.08.2014, Ext.A3 is the brochure, Ext.A4 is the insurance certificate, Ext.A5 is the warranty information and maintenance guide, Ext.A6 is the repair order, Ext.A7 is the trip sheet of Tourist taxi, Ext.A8 is the trip sheet of Tourist Taxi, Ext.A9 is the Pass book copy of complaint at Canara Bank, Ext.A10 is the copy of RC of the vehicle. Ext.C1 is the Commission Report filed by the Commissioner in this case. Ext.B1 is the warranty information and maintenance guide of the vehicle. Ext.B2 is the ARAI certificate dated 10.08.2012 for compliance to the central motor vehicle rules. The case of Complainant is that in the beginning date of purchase itself, the vehicle was having slight vibration and hitting sound on the steering rod while travelling through gutters on the road and also showed a rigidity in the steering wheel. So the Complainant informed the 1^st and 2^nd Opposite Parties over telephone and in person on several occasions but the 1^st and 2^nd Opposite parties not taken it seriously. On 26.12.2014, the vehicle met with an accident. At that time, the vehicle was run by 3200 kms. The 1^st Opposite party took the vehicle and entrusted to 2^nd Opposite party on 07.01.2015 for repair. According to the Complainant, the accident happened only due to the defect of vehicle and the rigidity of steering. The 1^st and 2^nd Opposite Parties contended that the accident happened only due to the rash and negligent driving of complainant and not due to the defect in steering rod. The 3^rd Opposite party contended that the accident took place not due to any manufacturing defect in the vehicle sold to the Complainant. As per Ext.C1 commission report, the commissioner not reported any manufacturing defect in the vehicle. But the commissioner stated that there is rattling noise from all side doors in the vehicle and from steering etc. Also certain other defects are noted. At the time of inspection, as per records, the vehicle was run by 20818 kms. On analysing the defects noted by the commissioner the forum found that these defects can be cured by proper service by the Opposite Party's service centre. Admittedly, the vehicle met with an accident at 3200 kms. The Forum found that there is no document which shows that there is any defect in the vehicle till accident occurs at 3200 kms. The Complainant alleged that in the beginning itself, the vehicle was having slight vibration, hitting sound on the steering rod while travelling on the gutters on the road and also showed a rigidity in the steering wheel. The complainant stated that the complainant informed these things to 1^st and 2^nd Opposite parties over telephone but 1^st and 2^nd Opposite Parties not cured it. The forum found that the complainant not produced any document to show that the Complainant had informed the defects to the 1^st and 2^nd Opposite Parties before the accident. It is seen that the vehicle is having the defects after the accident as noted by the commissioner. The Commissioner inspected the vehicle at 20818 kms. The Forum found that all services and all repairs in the vehicle are done after the accident. The complainant not proved that the accident occurred to the vehicle due to the rigidity of steering and hitting sound from steering rod. It is seen that after accident, the vehicle showed somany complaints. It is reported by the Commissioner also. The present complaints in the vehicle are within the warranty period and the 2^nd Opposite Party being the service centre is liable to cure the defects and make the vehicle in comfortable running condition. It is proved that the Opposite parties failed to cure the defects in the vehicle even after repeated services. In a ruling pronounced by the Hon'ble National Consumer Disputes Redressal Commission (reported in the CPR August 2016(3) Part 8 Page 474, the Hon'ble National Consumer Disputes Redressal Commission ruled that persistent complaint in a new vehicle would amount to manufacturing defect. But in this case the Forum found that the defects in the vehicle occurred only after the vehicle met with accident. So this ruling is not applicable in this case. The Forum found that the ruling pronounced by the Hon'ble National Consumer Disputes Redressal Commission (reported in 2008(1) CPR 318 (NC)) is also not applicable in this case. The Forum is of the opinion that here in this case, the complainant is entitled to get free service to the vehicle alone since the defects occurred during warranty period even if it is happened subsequent to an accident. Since the commissioner not reported any manufacturing defect in the vehicle and all defects occurred after an accident, the Complainant is not entitled to get the refund of the present value of the vehicle. By analysing all the evidences, the Forum found that the Opposite Parties failed to rectify the defects in the vehicle even after repeated services during warranty period. The Forum found that this is a clear deficiency of service from the part of 2^nd and 3^rd Opposite Parties. Hence the Complainant is entitled to get compensation which must commensurate with the loss sustained. Since 1^st Opposite Party is only a delivery outlet, 1^st Opposite Party is not liable for the future services in the vehicle. 2^nd Opposite Party being the sales and service outlet, 2^nd Opposite Party is liable to rectify the defects in the vehicle as noted by the Commissioner. Since 3^rd Opposite Party is the importer of the vehicle in India, 3^rd Opposite Party is vicariously liable for the acts of 2^nd Opposite Party. Hence the Forum found deficiency of service from the part of 2^nd and 3^rd Opposite parties.

In the result, the complaint is partly allowed and the 2^nd and 3^rd Opposite parties are directed to rectify all defects as noted by the Commissioner free of cost and free of parts if required and the 2^nd and 3^rd Opposite Parties are also directed to pay Rs.1,50,000/- (Rupees One Lakh Fifty thousand) only as compensation which includes all the expenses met by the Complainant and Rs.10,000/- (Rupees Ten thousand) only as cost of the proceedings to the Complainant. 2^nd and 3^rd Opposite Parties shall comply the order within 30 days from the date of receipt of this order failing which the complainant is entitled to get 12% interest for the whole sum. The complainant is directed to entrust the vehicle to 2^nd Opposite Party within one month from the date of receipt of this order for repair and 2^nd Opposite Party shall complete the work and return the vehicle to the Complainant within one month from the date of such entrustment. The 2^nd and 3^rd Opposite Parties are also directed to extent the warranty of the car for another period of one year from the date of this order since it being the period of pendency of this case.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 17^th day of November 2017.

Date of Filing:25.07.2016.

PRESIDENT : Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witnesses for the complainant:

PW1. Mathai. T.V Complainant.

CW1. Roni Varghese. MVI.

Witness for the Opposite Parties :

OPW1. Praveen. Customer Relations Manager, Eram Motors, Feroke Chungam, Calicut.

OPW2. Sreeraj T.C ( Sriraj T.C). Area Manager, Customer Care, Mahindra &

Mahindra, Cochin.

Exhibits for the complainant:

A1. Copy of Proforma Invoice. dt:24.06.2014.

A2. Copy of Invoice- Form-8 dt:20.08.2014.

A3. Copy of Brochure.

A4. Copy of Letter. dt:13.08.2015.

A5. Copy of Warranty Information & Maintenance Guide.

A6. Copy of Repair Order.

A7. Trip Sheet for Contract Carriage/Tourist Taxi.

A8. Trip Sheet for Contract Carriage/Tourist Taxi.

A9. Copy of Kisan Credit Card.

A10. Copy of Certificate of Registration.

C1. Commission report. dt:21.12.2016

Exhibits for the Opposite Parties:

B1. Copy of Repair Manual.

B2. Copy of Certificate.