ORDER

SMT. RAVI SUSHA      : PRESIDENT

        Complainant filed this complaint  U/S 12 of the Consumer Protection Act 1986  alleging  deficiency in service on the part of  opposite parties, praying for  a direction to get Rs.20425/- as mental agony, cab hiring charges, service charges already paid to the opposite parties with legal expenses.

   The brief of the complainant’s case is that

       The complainant purchased  a Maruti car(model ERTIGA BS IV vehicle)  manufactured  by 3^rd OP through their authorized dealer ,Ist OP on 25/7/2015 .  That the  month of October  complainant observed some technical difficulty while driving the vehicle, she immediately notice it to 1^st Op ,  he advised to take the vehicle to their workshop at Kannur on 21/10/2015.  Then after keeping the vehicle for more than 10 days, the opposite party informed  the complainant that the defect is due to the abnormal wear of clutch and it is on account of the driving habit  and  the complaint cannot be entertained under the terms of the warranty.  So before starting  work, the 1^st Op informed the complainant that  the complaint is entirely due to the manufacturing defect and it is fit  case to be entertained  under  warranty since the vehicle is not even completed 1000 kms of run.  That  complainant  was constrained to pay  an amount of  Rs. 5425/-  and got the vehicle released from the  opposite party that the defect was entirely on account of the manufacturing defect and  the OP is not willing to accept this fact and escaped from their responsibility of entertaining the defect under warranty.  The action on the part of the opposite parties are highly  illegal and contrary to the provisions of law and thee is  deficiency of service on their part.  The complainant had to undergo several difficulties and mental tension  during  the 10 days period, she had to requisition the service of taxi cab and spent Rs.5000/- towards hiring charges.  The complainant is entitled to get Rs.10,000/- towards mental tension and agony, Rs.5000/- as cab hiring charges  and Rs.5425/- towards services charges from the opposite parties.  Hence filed this complaint.

        1^st opposite party filed  version  admitting that the  complainant  purchased a  Maruti car(model Ertiga BS  car on 25/7/2015 manufactured by 2^nd OP  Maruti Suzuki Ltd  and also  the complainant  had handed over  the vehicle  to them  for repair work on 21/10/2015 that  on inspection  of the vehicle  it was found that  the clutch disc was worn out due to wear and tear and this may happen because of over stress on the clutch due to  driving habits .  In this case the  clutch disc was  replaced  and  the vehicle was delivered  after curing  the  defect and as the  warranty  will not cover wear and tear parts, the clutch disc  could not be replaced under warranty  and  so bill was charged  for the same.  The warranty terms and conditions mentioned in the owner’s  manual in possession of  the complainant  will also clear this point  and the position was clearly mentioned to the  complainant also but she was not ready to accept  it. The notice of the complainant, the  1^st OP  had given  a reply  dtd 29/10/2015..  That  the defect pointed out  by the complainant is not a manufacturing  defect, it is only a case of clutch disc worn out, due to wear and tear  which may happen because of over stress on the clutch due to  driving habits., and  there is no  case of  any  unfair trade practice from the side of 1^st OP. That the allegations of  complainant that she  had to undergo difficulties and mental  agonies  during the  days of repair  of the vehicle  for paying  an amount of Rs. 5425/- as bill charges and  spent Rs.5000/- towards  taxi are  baseless and prayed  for the  dismissal of the complaint.

      In the  version  opposite party 2&3 submits that  warranty in relation to this case is subject to certain  terms and conditions and limitations as set out in owner’s manual and service book let. That the alleged defect of fault in clutch  is not covered under the warranty  as per clause 4(2) of the warranty policy as enumerated in the  Owner’s manual.  The warranty does not cover the  replacement of the normal wear and tear parts and  the clutch disc was worn out  not because of any  manufacturing  defect but due to careless and negligent driving of the complainant and also they submitted that  as is evident from records, the complainant to her entire satisfaction  took the delivery of the vehicle from the showroom,  It is further submitted that  vehicle was sent to the workshop on 21/10/2015 for the 2^nd visit  and the mileage of the vehicle on that date was 1001kms.  The opposite parties further submitted that by driving the vehicle using the clutch pedal as foot  rest results into the damage to the clutch assembly (clutch disc gets burn) that  the clutch was completely worn out  as is evident from the records  and the photographs of the worn out clutch that the damage to the clutch assembly was due to the careless attitude and negligent driving of the complainant and that the alleged defect is not covered under the warranty as per clause 4(2) of the  warranty policy and  the reasons for the alleged defect were clearly explained to the complainant.  The opposite parties 2&3  denied that  the defect is due to any manufacturing defect, that the vehicle was not covered under warranty  the repairs were done on paid basis . That it is denied that the complainant had to undergo several difficulties and mental agony and the vehicle was repaired and delivered in perfect  ok conditions.  The opposite parties 2&3 also submits  that there is no negligent act, unfair trade practice or deficiency in service  or manufacturing defect in the vehicle and pray for the  dismissal of the complaint  against these  opposite parties.

The points to be decided  in this case are

1.  Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Relief and cost?

Point No1:-  In this case, there is no  dispute that the complainant purchased  a Maruti car(model ERTIGABS IV vehicle)  manufactured  by 3^rd OP through their authorized dealer Ist OP on 25/7/2015 and also the complainant had handed over the vehicle to the Ist Op for repair work on 21/10/2015.  Both the parties admit that the defect is in the clutch disc and the complainant  paid Rs. 5425/- as service charge  to  Ist OP.  On inspection of the vehicle, 1^st OP found that the clutch disc was worn out due to wear and tear and this may happen because of over stress on the clutch due to  driving habits.  The complainant’s allegation is that the  complaints arised due to  the manufacturing  defect and  also  which will cover the warranty  conditions as the vehicle is not even completed  1000 kms of run.  Because of the  conflicting  contentions we have to decide  whether the defect occurred in the vehicle is a manufacturing  defect and  further this defect comes under the purview of warranty conditions.

        From the  side of the complainant, complainant was examined  as PW1  and  her husband was examined  as PW2 and marked Exts.A 1 to A4.  Ext.A1 is vehicle  invoice dated 25/7/2015.  Ext.A2 is RC copy Ext.A3 is cash bill dtd.31/10/2015 and  Ext.A4 is letter issued by opposite party dtd.31/10/2015.

       From the side of Ops 2&3 along with version filed warranty policy conditions.  Opposite parties filed chief affidavit but not examined any witness from their side except cross-examined  PWs1&2.

      On going through the testimony of PWs 1&2 , we can reveal that the complainant neither  knows driving nor having license.  PW1 deposed that the  vehicle is driven by her husband (PW2) who is an expert driver and the defect occurred in the  clutch disc comes under the benefit of warranty condition and the Ist OP has no right to  obtain repairing charges.

      On analyzing the depositions of PW2, we can see that the vehicle was used by him and he admitted that  defect  in clutch, does not come under warranty condition and further no  steps  has been taken for appointing  an expert  for proving  the manufacturing defect.  Moreover he admitted that the clutch become defective when  over stress applied on the clutch.

     From the  side of opposite parties warranty conditions produced.  On the  perusal of warranty policy condition, No.(4)(2) says that “ This warranty shall not apply to the replacement  of normal  wear  parts  including without  limitation, bulbs tyres and tubes, spark plugs , belts, hoses, filters wipers, blades, brushes, contact  points, fuses “ clutch  disc” break shoes, brake pads, cable and all rubber parts.”

      From clause 4(2) of the warranty  condition, it is proved  that the  defect in clutch disc will not  come under the  purview  of warranty benefit.  So from the aforesaid discussions, we are of the view that  the complainant is not entitled to get  refund of the amount of Rs. 5425/- from the Ist OP.

      The 2^nd  allegation of the  complainant is that the complaint  occurred in the vehicle was due to  the manufacturing defect of the vehicle.  The 3^rd OP is the manufacturer.  2^nd&3^rd OP’s contention is that the  complainant to her entire satisfaction  took the delivery of the vehicle from the  showroom  and worn out clutch  happened  due to  using  the clutch  pedal as foot  rest  results into the damage to the clutch assembly and not due to any manufacturing defect.

      It is the duty of the party who raised the allegation to prove  of manufacturing defect.  Here complainant ought to have  proved  with material evidence (expert opinion) their allegation.  In this case the complainant failed to substantiate her allegation with  expert opinion.  The complainant is not an  expert  to say that the vehicle is having manufacturing defect.  In fact it is for the complainant to prove that the vehicle suffered from any manufacturing defect, but the complainant chose not to examine any expert , nor she  made any request to the commission, for  appointing  a technical  expert  in that behalf.  It is a settled position that for proving manufacturing defect, expert opinion  is necessary.

      Further on scrutinizing the entire facts and  evidence before us, we have noted that the complainant is not having any allegation regarding the work done by the 1^st OP and also after that  work ( ie after the replacement of clutch disc) dtd.21/10/2015 there was no further defect happened to the vehicle.  According to the complainant the 1stOP had taken more than 10 days  for  doing the work and further alleged that she had spent Rs.5000/- towards hiring  of Taxi during  that period.  Here we cannot blame 1^st OP to take 10 or 12 days for  work of replacing  clutch disc.  Here the complainant did not produce any  piece of evidence to show that she had  rent-take taxi and spent money for that.

     Hence from the available pleadings, contentions and material  evidence   brought before us  we come to  a conclusion that since the complainant failed to prove her allegations, the complainant is  not entitled to get any relief as claimed.  Hence the complaint is dismissed.

     In the result the complaint  fails  and hence dismissed.  There is no order as to cost of the proceedings of this case.

Exts:

A1- dt.25/7/15- Vehicle invoice

A2- copy of RC

A3- 31/10/15- cash bill

A4- 31/10/15 letter issued by OP

PW1-Divya .P.P-complainant

PW2- Roopesh.A-Husband of PW1

Sd/                                                                       Sd/                                                                          Sd/

PRESIDENT                                     MEMBER                                          MEMBER                                 

eva    

/Forwarded by Order/

SENIOR SUPERINTENDENT