The Opposite parties 1, 2, 5 and 6 in CC No.840 of 2010 on the file of District Consumer Forum-II, Hyderabad preferred this appeal feeling aggrieved by the orders dated 25.09.2013 in allowing the complaint in part and directing the Opposite parties jointly and severally to pay a sum of Rs. 2,00,000/ - towards compensation for the mental agony and deficiency of service on the part of Opposite parties; to pay a sum of Rs. 5,000/- towards costs granting time of (30) days and on failure to comply within time specified, to pay interest 6% p.a. from the date of default till realization.
FA NO.541/2014 :
The Opposite parties 3 and 4 in CC No.840 of 2010 on the file of District Consumer Forum-II, Hyderabad preferred this appeal feeling aggrieved by the orders dated 25.09.2013 in allowing the complaint in part and directing the Opposite parties jointly and severally to pay a sum of Rs. 2,00,000/- towards compensation for the mental agony and deficiency of service on the part of Opposite parties; to pay a sum of Rs. 5,000/- towards costs granting time of (30) days and On failure to comply within time specified, to pay interest 6% p.a. from the date of default till realization.
FAIA NO.1089 OF 2018 IN FA NO.1281 OF 2013 AND FAIA NO.1598 OF 2018 IN FA NO.541 OF 2014
These Interlocutory applications are filed under Order-VII, Rule-14 read with Section-151 of CPC to receive additional documents, during pendency of the appeal. The documents that are proposed to be filed are the news articles obtained from the online portals of (1) Hindustan Times, dated 23.06.2017, (2) Times of India, dated 24.06.2017, (3) The Hindu, dated 13.09.2013 and (4) Reuters, dated 13.08.2012. These are the relevant news clippings which have got bearing to the facts involved in the present case. They are all the documents which emanated subsequent to lodging of the complaint.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The facts of the instant case are that the Complainant has purchased the car during the relevant period. When the manufacturers have noticed the manufacturing defect in rear twist power and the power assisted steering hose and therefore the manufacturer has recalled about 39000 vehicles manufactured during 2004-2012 for rectifying the defect/fault. The news item that are published are not disputed. Considering the above, in the interest of justice, it is felt that the documents can be received by way of additional evidence and ordered accordingly and the same are received and marked as Ex.X1.
4. The case of the Complainant, in brief, is that Complainant purchased Ford Fiesta motorcar from the Opposite party No.1 on 01.04.2010 vide invoice No.APR/TCK-001 for a consideration of Rs. 6,72,750/- which was subsequently registered as AP28DE7589. Within few days of its purchase, the vehicle started emanating abnormal noise at steering column in addition to pulling towards right side. The same was complained to Opposite parties by handing over the vehicle on 16.04.2010 but the problem could not be resolved, however, it was stated that it would be resolved over a period of one month. Again the vehicle was taken to the workshop on 10.05.2010 with same problem which also persisted on 25.05.2010. Even after attending the problem and replacing some spares, the same could not be rectified. On 22.06.2010 the vehicle had to be picked up from the place of work of Complainant at Madhapur, however, the vehicle could not be attended as they required some spares.
5. Even though the vehicle was kept till 05.07.2010, the problem could not be resolved which is nothing but deficiency in service and unfair trade practice. By delivering the defective vehicle, the Opposite parties have caused agony and pain to the complainant, for which all the Opposite parties are vicariously liable and responsible. Hence, the complaint with a prayer to direct the Opposite parties to award compensation of Rs. 5,00,000/- towards deprivation from use of the vehicle, harassment, agony, etc., and to pay Rs. 2,00,000/- towards damages and also costs of the complaint in addition to giving instructions to Opposite parties to discontinue from unfair trade practice and also to award punitive damages of Rs. 50,000/- and costs of the complaint.
6. Opposite party No.3 and 4 filed their written version admitting the purchase of vehicle in dispute for Rs. 6,72,750/- by the Complainant on 01.04.2010. The problem reported by Complainant was attended by them promptly from time to time. On complaining noise from steering side, the same was replaced under warranty and since then there is no abnormality with the vehicle. Every time, the defects reported by Complainant have been attended by trained experts. However, the Complainant did not permit to inpect the vehicle again and filed the complaint with a malafide intention. Hence, prayed to dismiss the complaint.
7. Opposite parties 1, 2, 5 and 6 filed memo adopting the written version filed by Opposite parties 3 and 4 to be their written version.
8. During the course of enquiry before the District Forum, in order to prove their case, the Complainant filed his affidavit evidence as PW1 and the documents Ex.A1 to A13 and on behalf of Opposite parties 3 and 4, it got filed the affidavit evidence of Jayakumar Dushyanth, its authorized signatory as RW1.
9. The District Forum after considering the material available on record, allowed the complaint in part bearing CC No.840 of 2010 by orders dated 25.09.2013, as stated supra, at paragraph No. 1.
10. Aggrieved by the above orders, the Appellants/Opposite parties 1, 2, 5 and 6 preferred appeal bearing FA No.1281/2013 contending that the forum below failed to appreciate the material on record in proper perspective and came to a conclusion erroneously. It failed to appreciate the fact that the Respondent/Complainant failed to provide the vehicle for inspection by technical team from Chennai and also the fact that the vehicle already ran 60000 Kms and it also failed to consider the report submitted by Sri C.Sridhar, technical personnel. It came to wrong conclusion that there is manufacturing defect without there being any evaluation report. Hence, prayed to allow the appeal by setting aside the orders impugned.
11. Aggrieved by the very same orders, the Appellants/Opposite parties 3 and 4 preferred appeal bearing FA No.541/2014 contending inter-alia that the forum below passed orders without there being any averment of manufacturing defect pleaded or cause of action in the entire complaint. It failed to consider the expert report filed by them which shows that the subject vehicle was not suffering from any defect much less a manufacturing defect. Even otherwise, the complainant does not make a case for defect or deficiency in service and the entire findings are based on presumptions and assumptions. Hence, prayed to allow the appeal by setting aside the orders impugned.
12. The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
13. These two appeals are being disposed of by common orders inasmuch as they arise out of the same judgment i.e., the orders of the District Forum made in CC No.840/2010 dated 25.09.2013.
14. The facts leading to the present appeal, briefly stated are as hereunder. The parties are referred to as they are arrayed in the complaint.
15. The complainant stated to have purchased the vehicle in question from the opposite party no.1 for a consideration of Rs. 6,72,750/- being manufactured by OP No.3. Within no time the vehicle started giving trouble to him as abnormal noise is noticed in the steering column and the same was pulling towards right side. On complaining the same, the opposite parties service centre attended to the problem but could not rectify to the satisfaction of the complainant. Again the vehicle was taken to the work shop of the opposite parties for numerous times, in spite of which, the problem could not be solved.
16. It is the further case of the complainant that after a period of time, the opposite party no.3 has recalled the vehicles numbering 39000 for rectification of hosepipe problems in respect of the vehicles manufactured at relevant period of time. Even the subject vehicle pertains to the same period which the opposite party no.3 had recalled the vehicles and rectified the problems.
17. Adverting to the main case, which needs to be adjudicated in both these appeals is as to whether the order of the District Forum directing both the dealer and the manufacturer to pay a compensation of Rs. 2,00,000/- to the Complainant in view of the mental agony that the Complainant was subjected to.
18. Opposite parties 1, 2, 5 and 6 are the dealers who shall hereinafter be referred to as dealers, whereas, Opposite parties 3 and 4 shall hereinafter be referred to as the manufacturer. The Complainant purchased the car under Ex.A1 on 01.04.2010 and within a fortnight thereafter started feeling discomfort in driving the car. It may be stated, at the outset, that the Complainant is not seeking the relief of replacing the car on the ground that there was manufacturing defect. As stated above, the specific prayer of the Complainant is to award him the compensation of Rs. 5,00,000/- towards the deprivation, harassment and mental agony and Rs. 2,00,000/- towards pecuniary loss of precious time and damages suffered due to the dereliction of duty, negligence, defect and deficiency in service of the Opposite parties. Apparently, the defect in the car which was being felt by the Complainant was rectified by the dealer with a spare part having been supplied by the manufacturer. However, for the initial three months of his purchasing new car, he was subjected to severe hardship, discomfort and inconvenience for the reason that the vehicle had to be taken to the dealer as many as on five occasions within a span of three months of its purchase. Since it was within the warranty, the requisite spare parts were replaced by the dealer.
19. According to the Complainant, within a week of his purchasing the car, he noticed abnormal noise from the steering and the vehicle was being pulled towards one direction. The voluminous documentary evidence that is produced by the Complainant, the correctness of which is not disputed clearly shows that all was not well with the vehicle due to which it was being regularly attended to by the dealer and excepting for the abnormal noise from the steering column of the vehicle and the vehicle being pulled towards right side, there was no other complaint in the product which was purchased by the Complainant. The facts which are borne out from the record and are not disputed are to the following effect.
(i) With the above complaint, the vehicle was taken to the dealer on 16.04.2010, 10.05.2010, 25.05.2010 and 22.06.2010. On all these occasions, the vehicle was attended to by the sales and service centre of the dealer.
(ii) As per Ex.A3, the vehicle was taken to the dealer service centre on 16.04.2010 with the above complaint and by that time, the vehicle has already covered a distance of about 1153 kilometers. The service centre has attended to the vehicle and returned the same on the same date to the Complainant.
(iii) Thereafter, as per Ex.A4, after having covered a distance of about 2005 kilometers, the vehicle was once again taken to service centre on 10.05.2010 i.e., within 40 days of its purchase with the same persisting problem. The vehicle was attended to by the service centre and returned to the Complainant assuring him that an attempt was made to rectify the defect but however the steering column of the car need to be replaced which will be done after the same will be received from the manufacturer.
(iv) Thereafter, again on 25.05.2010, as per Ex.A5, the vehicle was taken to the service centre with the same complaint and as per Ex.A5, the power assistance steering hose was replaced.
(v) Thereafter, on 30.06.2010 as per Ex.A6, the vehicle was once again taken to the service centre and after keeping for about 13 days, the vehicle was returned after servicing.
(vi) Within these three months period, there was correspondence in between the Complainant and the dealer and manufacturer and it was being assured by the dealer that the defect will be rectified. It is further the case that when the vehicle covered a distance of about 4575 kms, the vehicle was road tested on 22.06.2010 and nothing abnormal was noticed.. Similarly, a communication was sent to the Complainant that there was no abnormality found with respect to the functioning/ performance of the steering system nor are there any quality issues with the steering component.
20. Within three months after having purchased the car, the Complainant approached the District forum with the above grievance. During the pendency of the complaint the developments which have been referred to has taken place. According to the Opposite parties, the vehicle has already covered a distance of about 50000 kms by 10.09.2013 and 90000 kms by May 2017. In between in January 2014 and August, 2015 the vehicle also met with an accident.
21. The above facts if carefully analysed, what is manifest is that the Complainant has purchased the new car on 01.04.2010 and immediately noticed the abnormal noise in the steering of the vehicle and the vehicle being swerving towards one direction. The problem appears to be of the power steering which was replaced. It may be recalled that as per Ex.A1, the vehicle which was manufactured by the manufacturer up to 2012 was suspected to have that problem and accordingly the vehicles were being recalled and that part was replaced. In the instant case also, the defective part viz., steering hose pipe was replaced by the dealer within three months of the car having been purchased by the Complainant. Therefore, what can be concluded is that there was some defect in the vehicle which was attended to but in that process, the Complainant was put to inconvenience and hardship.
22. The forum below has considered the above aspects in proper perspective and held that the Complainant is entitled to compensation for the mental agony caused due to the said defect in the vehicle.
23. The District Forum has awarded a compensation of Rs. 2,00,000/- fastening the liability jointly and severally both on the dealers and the manufacturer. According to the dealer, they are not responsible for the said defect in the part of the car which was replaced and it is the manufacturer who is liable to pay the compensation, if any, but directing the dealer to pay the same cannot be justified. Upon carefully perusing the voluminous evidence and documentary evidence produced by the Complainant including the news item which show that during the relevant time were suspected to have defect, I feel that the liability cannot be fastened on the dealer but it is only the manufacturer who is liable to pay the compensation, if any.
24. The next aspect is what is the quantum that can be awarded to the Complainant for hardship and inconvenience which he has suffered. Admittedly, within three months the vehicle had to be given to service centre for about 5 times and it be
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ing within warranty, the same was attended to at free of cost and even the part was replaced without any cost, since it was being replaced within the period of warranty. After the above repairs and replacement were affected by the dealer, there do not appear to be any major defect or inconvenience caused to the Complainant and as a matter of fact, the vehicle is being in custody and possession of the Complainant all along and has already covered more than 90000 kms. Therefore, I feel it just and proper to reduce the compensation awarded by the District Forum from Rs. 2,00,000/- to Rs. 1,00,000/- directing the manufacturer to pay the same by exculpating the liability on the dealers as has been fastened by the District Forum. Hence, directing the opposite parties 1, 2, 5 & 6 cannot be sustained. Hence, the impugned orders needs to be interfered in the following respects. 25. For the aforesaid reasons, the orders of the forum below are modified insofar as grant of compensation at Rs. 2,00,000/- is concerned and the same is reduced to Rs. 1,00,000/- payable with interest @ 6% per annum from the date of complaint till realisation and costs of Rs. 5,000/-. 26. In the result, the appeal bearing FA No.1281/2013 is allowed by setting aside the orders of the forum below insofar as the appellants are concerned. The appeal bearing FA No.541/2014 is allowed in part by modifying the orders impugned, as stated, supra. There shall be no orders as to costs in these appeals. Time for compliance : 4 weeks from today. The interlocutory applications bearing FAIA No.1089/2018 in FA No.1281/2013 and FAIA No.1598/2018 in FA No.541/2014 are allowed and the documents are received on record and marked as Ex.X1.