The Chairman, Maruthi Suzuki India Limited Vs. S. Ahimsairaj and Another - Court Judgment

J. Jayaram, Judicial Member

This appeal is filed by the 2^nd opposite party against the order of the District Consumer Disputes Redressal Forum, Chennai [North] in C.C.155/2010, dated 10-11-2011, allowing the complaint.

2. The case of the complainant is that, he purchased a new SWIFT Diesel VDI Model car bearing registration No. TN-18 A-5424 on 25-9-2009 for a sum of Rs.5,69,723/- which includes Road Tax, Insurance and cost of accessories. The first service was done on 28-10-2009 on completion of 911 KMs and 2^nd service was done on 31-12-2009 at 5526 KMs. On 8-4-2010 during routine check-up he found no oil trace in the dip stick and he left the car with the 1^st opposite party for necessary check-up and service and the car was returned to him on 16-4-2010 by the opposite party informing him that the engine was found having 1.7 litre of engine oil and that there was leak in the turbo charger and lubricating line due to which oil was running continuously and hence oil level has been steadily going down, and that the turbo charger was replaced and oil was filled up to the requisite level, but after running trial for 140 KMs, there was no undue noise. As per Owners Manual and Service Booklet supplied by the manufacturer, the capacity of the engine oil is specified as 3.1 Litres, and it is specified in the Manual that the engine oil should be maintained at the correct level for proper lubrication and the oil and the dip stick should be between the upper and the lower level shown on the stick. It is therefore clear that the claim of the 1^st opposite party that nothing happens to the car even if the car runs half of the engine oil is baseless and unacceptable. On 24-5-2010, he noticed excessive black smoke emanating from the exhaust of the car and abnormal noise, and so he took the car to the 1^st opposite party, and as per their advice, the complainant took the car to ARAS PVPV Automobiles at Nagercoil for further check-up and rectification and at that stage the car had covered only 10,145 KM where it was found by them that the engine had consumed 150 ML of oil to cover a distance of 280 KM which is abnormal for a new car having covered about 10,000 KMs. The complainant took up the issue with the opposite parties, but there was no response. During the free service period there was no excessive oil leak and it was understood that the engine oil line to the turbo charger had failed and the engine oil got consumed by the turbo charger and consequently the oil in the system continuously came down and the engine might fail leading to major break down. The complainants requests were simply ignored by the opposite parties who failed to respond to the requests of the complainant and the attitude of the opposite parties amounts to deficiency in service and unfair trade practice. Hence the complaint praying for direction to the opposite parties to refund the sum of Rs.5,81,723/- towards the amount paid by him and to pay a sum of Rs.5 Lac for the deficiency in service and unfair trade practice of the opposite parties by neglecting and ignoring the complainants requests and to pay a sum of Rs.5 Lac for mental agony and stress caused by the opposite parties and to pay costs of Rs.5,000/-.

3. According to the opposite parties, pursuant to the grievance of the complainant, they found no engine oil in his SWIFT Diesel Car on 8-4-2010, it was verified by the service station and found that 1.7 litre of oil was found in the engine and that there was a malfunction in the turbo charger which was replaced under warranty basis immediately; and that on 24-5-2010 complainants car was examined in detail by the appellants authorized service station ARAS PVPV and the Engineers Report attached with the job card Ex.B10 reflects that a thorough service inspection was carried out and that inter cooler of the car was cleaned due to clogging leading to black smoke emission. There are no materials on record other than the complainants contention that the vehicle was still emitting black smoke. There is no manufacturing defect established by the complainant by proper evidence and that black smoke was persisting even after 24-5-2010 or that there was manufacturing defect in the vehicle. There is no deficiency in service on the part of the opposite parties or unfair trade practice.

4. The District Forum considered the rival contentions and allowed the complaint holding that there is manufacturing defect in the car and there is negligence, deficiency in service and unfair trade practice on the part of the opposite parties, and passed an order directing the 2^nd opposite party to replace the car by providing a new one to the complainant or in the alternative refund the sum of Rs.5,64,723/- with interest at the rate of 9 % p.a. from the date of complaint viz. 24-8-2010 till the date of payment, and to pay a sum of Rs.50,000/- towards compensation for unfair trade practice, negligence and deficiency in service and Rs.25,000/- towards compensation for mental agony suffered by the complainant and to pay costs of Rs.5,000/-. Aggrieved by this order, the opposite parties have preferred this appeal.

5. It is contended by the appellant / 2^nd opposite party that, the District Forum has no jurisdiction to try and entertain the complaint as the complaint is not maintainable in law, being without any cause of action since there is no manufacturing defect in the vehicle, and there is no negligence or defect in the service on their part, and that the complaint is not maintainable also for the reason that the relief of replacement of the vehicle or refund of the price of the vehicle as claimed by the complainant is beyond the purview of the warranty agreement between the parties, and that the complaint is bad for non-joinder of necessary parties viz. M/s ARAS PVPV Automobile, the Service Centre by whom the vehicle was repaired. These contentions are untenable and there is no merit in the argument. It is further contended by the appellant that the 1^st opposite party, the dealer of the vehicle conducted pre-delivery inspection before selling the vehicle to the complainant and the vehicle was in perfect road worthy condition at the time of sale and the complainant took delivery of the vehicle after test drive and being fully satisfied. May be the vehicle was perfectly alright at the time of taking delivery by the complainant, but the vehicle subsequently developed problems after being put to use. Therefore, the contention in this regard is unsustainable. The further contention of the appellant is that the warranty benefits are not available to the complainant where the defect in the vehicle was caused due to misuse, negligence, abnormal use and insufficient care of the owner of the vehicle. Without any materials to prove that there was misuse or negligence on the part of the complainant, we cannot assume that there was misuse or negligence of the complainant. There is absolutely no evidence to hold that there was misuse and negligence or insufficient care of the complainant and therefore there is no substance in this argument.

6. The allegation of the complainant is that he found no engine oil in his car on 8-4-2010, and the dip stick showed no oil in the engine.

7. According to the opposite parties, the car was checked by the service station, and they found 1.7 litres of oil in the engine on the very same day; but, malfunction of the turbo charger was found, and hence the turbo charger assembly was replaced on warranty basis. It is pertinent to note that the vehicle has been purchased on 25-9-2009, and admittedly within a short spell, on 8-4-2010, the turbo charger assembly had to be replaced, and it is established by the complainant that there was defect in the engine necessitating replacement of turbo charger assembly.

8. The further allegation of the complainant is that even after replacement of turbo charger assembly, the vehicle exhaust emitted heavy smoke and having suffered replacement of turbo charger, the car was exposed to irreparable damage. In this regard, we may look into the experts opinion Ex.A27. The Expert who has issued the certificate Ex.A27 seems to be a well qualified and competent person to speak about the conditions and the problems relating to automobiles. He has not inspected the car, and his views are general in nature, and so his general opinion and views can be considered for what it is worth. According to his opinion, the failure of turbo charger would contribute to the loss of lubricating oil and low level of engine oil would contribute to premature wear of bearings, bushes, drive chains and linkages and consequently the associated components and assemblies will fail and this will lead to the compromise on engine performance. Therefore, we can infer that the defect in the turbo charger has affected the performance of the engine and its various parts.

9. It is relevant to note that in the job card Ex.B10, dated 24-5-2010, of the service centre of the opposite parties, it is noted as running repair, exhaust – heavy smoke, and engine oil level check; and in the other job card, Ex.B11 dated 1-6-2010, the service centre also it is noted that running repair, abnormal – exhaust heavy smoke; Ex.B10 and B11 indicate that there was emission of heavy smoke in the exhaust of the engine though it is noted as heavy smoke arrested.

10. Admittedly, the oil consumption test was carried out by the service centre at Nagercoil and it was found that the engine consumed 150 ML of engine oil during 286 KM running, which is abnormal and which tells upon the performance and life of the engine; and therefore, we have to note that the problem in the turbo charger, was due to the lubrication system failure and adequate lubrication oil got consumed by the turbo charger and it would have adverse effect on various parts of the engine. Therefore, admittedly, there was problem with the turbo charger and it is substantiated that there was defect in the turbo charger and consequently several parts of the engine would have got affected to some extent. Apart from this, the problem of emission of heavy smoke could not be rectified properly by the opposite parties and further the opposite parties did not respond properly to the requests of the complainant.

11.  Therefore, the failure to rectify the defects in the engine and irresponsiveness on the part of the opposite parties amount to negligence and deficiency in service on their part.

12.  The District Forum has allowed the complaint holding that there was inherent manufacturing defect in the vehicle, unfair trade practice, negligence and deficiency in service on the part of the opposite parties. The District Forum has ordered replacement of the car and has awarded compensation on various heads.

13.  It has been argued by the appellant that as per various decisions of the Honble National Commission and the Honble Supreme Court that, the entire car should not be ordered to be replaced by a new one and the defective parts alone could be ordered to be replaced. In the instant case, the turbo charger assembly has been replaced by the opposite parties, under warranty conditions. It is significant to note that due to the defect in the turbo charger, it has affected the other parts of the engine also and therefore, it is just and appropriate to order replacement of the engine alone and not replacement of the car, having regard to the above decisions of the Honble National Commission and the Honble Supreme Court cited by the appellant.

14. In the result, the appeal is allowed in part and the order of the District Forum is set aside and the opposite parties are directed to replace the engine by providing a new engine of the same model and the opposite parties are directed to pay to the complainant a sum of Rs.50,000/- (Rupees Fifty Thousand only) jointly and severally towards compensation for mental agony and stress and to pay costs of Rs.10,000/- (Rupees Ten Thousand only). The complainant is directed to surrender the car to the 1^st opposite party within a month from the date of receipt of this order and the opposite parties are directed to replace the engine with a new engine of the same model and to return the car in road worthy condition within 6 (six) weeks from the date of surrender of the car by the complainant.