S.S. Satheesachandran: President

Opposite parties 1 and 2 in C.C.No.18/2013 on the file of the District Consumer Disputes Redressal Forum, Kalpetta, for short District Forum, have filed this appeal challenging the Order of the Forum directing them to rectify the defects of the motor vehicle of complainant and to hand it over to him with compensation of Rs.10,000/- (Rupees Ten Thousand) and cost of Rs.3000/- (Rupees Three thousand). They were directed to comply with the Order within one month failing which the complainant was allowed to have interest @ 12% per annum and also compensation of Rs.500/- per day till delivery of the vehicle fully repaired. Aggrieved by the Order the above opposite parties have preferred this appeal.

2. Case of the complainant in brief can be summed up thus: Complainant purchased a Maruti Omni LPG vehicle from the first opposite on 23.8.2007 paying price of Rs.2,58,496.75/- (Rupees two lakhs fifty eight thousand four hundred and ninety six and paise seventy five). On the date of purchase while the vehicle delivered over it showed some starting trouble- which was attended to by the technicians of the first opposite party. On the same day the vehicle again gave complaints of stopping while it was driven through a public place and that complaint was also attended by the technicians of first opposite party. Complaints over the vehicle over its starting trouble and cutting of engine persisted and as advised by the first opposite party it was taken to the authorized workshop at Calicut for repair. Still, even after repair carried out, the vehicle continued to have starting trouble and cutting of of engine, and the complainant had to take the vehicle several times to the authorized workshop the second opposite party and also once in another authorized workshop of the manufacturer in Calicut. Complainant could not use the vehicle peacefully and without entertaining a fear that it would stop all of a sudden in the middle of the road at any time. He was afraid to take the vehicle on long trips since it had serious defects over starting trouble and also cutting off of engine while being driven. The vehicle was handed over to the second opposite party, authorized workshop of the manufacturer, for repair on 22.12.2012 and at that stage the vehicle had covered a total milege of 22317 kms only. According to the complainant the second opposite party admitted that the defects and complaints of the vehicle are on account of its manufacturing defect and it could not be rectified. There was deficiency of service on the part of opposite parties in delivering a defective Maruti motor vehicle to him, is his case to claim replacement of new Maruti motor vehicle of the same type or to get refund of the entire amount paid by him for the vehicle with 12% interest per annum. He has also claimed compensation of Rs.25000/- (Rupees twenty five thousand) for mental agony suffered, Rs.25,000/- (Rupees Twenty five thousand) as damages and cost of Rs.15,000/- (Rupees fifteen thousand).

3. Complaint was initially filed only against the first and second opposite parties and pursuant to objection raised over the maintainability of petition by those opposite parties contending that it is bad for non impleadment of the manufacturer and thus non joinder of necessary parties the manufacturer was also impleaded as additional 3rd opposite partiy in the proceedings.

4. Opposite parties 1 and 2 together and 3rd opposite party separately have filed their versions disputing the claims of the complainant. While admitting booking of the Maruti vehicle by the complainant with first opposite party and its delivery on payment of the price opposite parties 1 and 2 disputed the case of complainant that from delivery the vehicle suffered very serious defects and from time to time it was attended to by their technicias or at their authorized workshop. Complainant had conducted free services of the vehicle from first opposite party and at no point of time during such free service period he had raised any complaints over the service nor of the vehicle having defects to be rectified according to them. The vehicle was covered with a warranty of two years and during such period no mechanical defect over the vehicle occurred nor complained of. However, later, complainant brought the vehicle to the service centre complaining starting trouble and demanded a general check up of the vehicle. Accordingly the complaints were attended to and some of the parts were replaced. Complainant has not maintained the vehicle properly, and it gave rise to the complaints reported, but, they were attended. He had complained of engine missing after a lapse of three years from the delivery of vehicle. That, according to the opposite parties, disclosed that he was using the vehicle till then without any defect. Opposite parties have provided the best service to the complainant is their case refuting the claims of the applicant and also deficiency of service imputed against them.

5. 3rd opposite party, manufacturer, in its version contending that the warranty obligations over the vehicle had concluded long time back on 22.8.2009 asserted that the vehicle had no manufacturing defect and it was not liable to compensate the applicant. Warranty provided was for a period of 24 months or 40000 kms whichever ccurred first from the date of the delivery to the first owner, and no complaint over the vehicle was raised during such period alleging manufacturing defects, according to this opposite party. Complainant had entered into an independent service contract with the second opposite party for service of the vehicle was the further case of this opposite party to contend that it has no liability nor was it answerable for deficiency of service alleged against the opposite parties. This opposite party reiterating the contentions of the opposite parties 1 and 2 asserted that there was no deficiency of service by those opposite parties in attending the complaints raised over the vehicle.

6. Evidence in the case consisted of the testimonies of complainant as PW.1 and his witness PW.2 and Exts.A1 to A9 on his side. On behalf of the 3rd opposite party its Areas Service Manager was examined as OPW.1. No oral evidence was tendered by the first and second opposite parties, but, on their side Exts.B1 to B5 were produced as documentary evidence. The forum below had directed Opposite parties 1 and 2 to produce the vehicle history of the vehicle for the period from 22.12.2007, the date of its delivery. The above opposite arties filed a statement over the job works carried over the vehicle for the period from 17.5.2009 onwards with an affidavit stating that online computer data system was installed in the office of the opposite parties only from the year 2009. Statement produced is exhibited as Ext.B5 in the case.

7. The lower forum appreciating the materials rejecting the case of the opposite parties 1 and 2 that the vehicle history of the vehicle was available only from the period of 2009 accepted the case of complainant which was supported by the evidence tendered by him that the vehicle had defects from the date of its delivery and it continued in 2013 when it was entrusted to the second opposite party for rectification. The case of the complainant that there was deficiency of service by opposite parties 1 and 2 was also found established by the materials tendered. On such conclusions opposite parties 1 and 2 were held liable to rectify the defects over the vehicle to the satisfaction of the complainant and also to pay compensation and costs as ordered. As against the 3rd opposite party manufacturer no finding or order was made by the lower forum indicating that it was absolved totally. Aggrieved by the Order first and second opposite parties have preferred this appeal.

8. We heard counsel on both sides. Learned counsel for the appellants highlighting the case of complainant that the vehicle had complaints from the date of delivery and such complaints raised related to the manufacture of the vehicle contended that complainant failed to prove any manufacturing defect over the vehicle. No inspection of the vehicle through an expert appointed by the forum and collecting of a report from him was sought for by the complainant and no material was produced to show that the vehicle had any manufacturing defect, is the further submission of the counsel. Whatever defects of the vehicle had been attended to by the opposite parties to the satisfaction of the complainant during the warranty period and later, and the vehicle had no manufacturing defects, is the further submission of the counsel. Documentary evidence tendered by the opposite parties were not properly appreciated and that has led to formation of a wrong conclusion by the forum that there was deficiency of service by the opposite parties, contends the counsel. Complaint against opposite parties were pressed into service five years after purchase of the vehicle that too after availing all free services during the warranty period and later repairs from time to time without any complaints is the further submission of the counsel to contend that the case of the complainant against the opposite parties is devoid of any merit.

9. We have perused the Order of the lower forum and the records of the case with reference to the submissions made. First and foremost it has to be pointed out that though complainant raised complaint that the vehicle even on the date of delivery had shown starting trouble he has not set up a case that the vehicle suffered from any manufacturing defect in his complaint nor in his evidence. Opposite parties 1 and 2 misconstruing the allegations raised in the complaint advanced a contention in their joint version that the complaints alleged over the vehicle related to its manufacture and as such the manufacturer was a necessary party to the proceeding. Complainant had no case that the vehicle had any manufacturing defects and as such impleadment of the manufacturer nor any enquiry whether the vehicle had any manufacturing defect does not arise for consideration. The lower forum has also rightly and correctly refrained from dilating upon the frivolous contention over manufacturing defects advanced by opposite parties 1 and 2 to resist the claim of the complainant. The one and only question that demanded consideration in the given facts of the case was whether the vehicle purchased by complainant from first opposite party had defects and whether such defects continued over a period of time despite attending to repair of the vehicle at various workshops including that of opposite parties 1 and 2 and was there deficiency of service on the part of the above opposite parties in rectifying the defects of the vehicle. To examine that question the forum below had directed the opposite parties 1 and 2 to produce the vehicle history of the vehicle. Setting forth a case, filing an affidavit, these opposite parties contended that computer online data system commenced only from 2009 in the office of the first opposite party, and, produced a statement Ext.B5 as the vehicle history statement of the vehicle for the period from 17.5.2009 to 15.3.2013. Perusing the affidavit it is seen that the opposite parties have not offered nor asserted that they are not in custody of the hard copies of the job cards over the vehicle of the complainant from the date of its delivery ie 17.5.2009. What was directed was production of the vehicle history statement of the vehicle from the date of its delivery, and it has nothing to do with the commencement of the online computer data system in the office of the first opposite party. When the opposite parties have no case that the job cards of the vehicle for the previous period i.e from 17.5.2009 are not available or lost irretrievably their failure to produce the vehicle history for that period was nothing but an attempt to prevent disclosure of the defects of the vehicle which were attended to, during such period from the purview of the forum. There is no reason to disbelieve the case of complainant that the vehicle had starting trouble from the date of its delivery and that the vehicle on that day abruptly stopped twice once even at the premises of the first opposite party and later while it was being driven through a public road. Complaints over the vehicle over its engine missing continued eversince and despite repairs carried out at various workshops it persisted is his case to impute deficiency of service against opposite parties 1 and 2. He has never set up a case that such defects were manufacturing defects and none of the opposite parties have such a case as well. What is then evident is that the vehicle which had defects of starting trouble, engine missing etc required proper repair, perhaps, by replacement of some parts. When both sides have no case of manufacturing defects over the vehicle what need to be looked into is whether the deficiency of service imputed against the opposite parties 1 and 2 has been established in the case. We notice that the vehicle of the complainant even after a period of 5 years covered only 22317 kms. Warranty provided to the vehicle covered two years period or 40000 kms from the date of its delivery has to be noticed with the milege covered even after a period of 5 years in appreciating the complaints rised by the complainant over the continuing defects of the vehicle and deficiency of service in rectifying the defects by opposite parties 1 and 2. Not only that the opposite parties 1 and 2 failed to produce job cards of the vehicle from the date of its delivery as ordered by the Forum they also did not produce any material to show what are the defects of the vehicle and what was to be done for rectifying such defects. The vehicle had defects over starting trouble and cutting of engine while being driven is established by the evidence of the complainant and also by Ext.B1 series showing the repairs done from time to time over the vehicle. Other than producing Ext.B1 series and B5 opposite parties 1 and 2 have not let in any evidence over the repairs attended to on the vehicle in the authorized workshop nor any explanation why the defects of starting trouble and cutting of engine during driving continued with the vehicle since its delivery. The evidence of DW.1 (Area Manager of 3rd opposite party) shows that he is only a supervisor of the dealers of that company and he does not know anything over the defects reported over the vehicle and services rendered at the authorized workshops. He has stated that the records of the vehicle showing the complaints raised over cutting of engine while starting are with the dealer and he has not gone through them. If that be so, there was no justification for opposite parties 1 and 2 in not producing the records despite the order passed by the Forum to do so. He has also candidly answered in the negative the question whether all repairs carried over the vehicle would be reflected in the online computer system stating that only some are reflected. He does not know what were the defects of the vehicle nor what steps were taken for repair. He being a supervisor of the dealers of the 3rd opposite party he cannot be found fault with as he could not be expected to have any direct knowledge over the complaints of defects of the vehicle and also the repairs carried out at the authorized workshops. Suffice to say that his evidence does not in any way assist the opposite parties 1 and 2 to show that there was no deficiency of service on their part in attending to the complaints over the vehicle and carrying out its repairs.

10. The motor vehicle was purchased by the complainant on 23.8.2007 paying its price of Rs.2,58,496/75. From the date of delivery it had defects over starting trouble and cutting of engine while being driven. These defects persisted even after periodical inspection and repair of the vehicle at the various workshops of the 3rd opposite party. Opposite parties 1 and 2 have atempted to take shelter setting forth a defence that the defects complaints imputed related to manufacturing defects of the vehicle, which definitely was not the case of the complainant. Such a case was projected by the opposite parties to deny the deficiency of service imputed against them in rectifying the defects complained over the vehicle. The vehicle handed over for repair on 22.12.2012 to the second opposite party continues to remain with opposite parties 1 and 2 and the defects complained of have not been rectified. They have not disclosed before the court what are the defects of the vehicle and whether such defects could be rectified. No doubt there was deficiency of service on the part of the opposite parties in attending to the complaints raised by the complainant over the defect of the vehicle. The lower forum holding so has directed opposite parties 1 and 2 to rectify all the defects of the vehicle and hand it over to the complainant with compensation of Rs.10000/- (Rupees Ten thousand) and cost of Rs.3000/- (Rupees three thousand). We find that the direction to carry out the repair and handing over the vehicle in view of the long lapse of time after filing the complaint would not advance the ends of justice. The vehicle kept idle in the workshop without attending to its repair by this time might have deteriorated and chances of rectifying the defects complained earlier by the complainant at this stage may not be possible. The vehicle was handed over to the workshop for repair of the defects complained of about five years after its purchase, and, it was preceded by complaints of the same defects and carrying out repairs at the workshop, but, with no effective solution. Having regarding to the tear and ware caused to the vehicle during the five years after its delivery it is just and reasonable to hold that there was depreciation of atleast 30% its value when it was handed over for curing defects by the complainant. So the vehicle at the time of handing over can be assessed of having a market value of Rs.1,70,000/- (Rupees One lakh Seventy thousand) Opposite parties 1 and 2 have to pay the aforesaid value fixed over the vehicle for their culpability for deficiency of service in rectifying the defects over the vehicle. The above sum shall be paid with the sums of compensation and cost ordered by the lower forum within one month from the date of this judgment, failing which the price fixed over the vehicle(Rs.1,70,000/-) shall carry interest at 6% per annum till realization. Complainant has to execute necessary documents for transfer of ownership over the vehicle to collect the sums ordered to be paid to him by opposite parties 1 and 2.