M/S. Mandovi Motors Pvt. Ltd. and Another Vs. Pravenchandra Shetty and Another - Court Judgment

Excerpt:
consumer protection act, 1986 - section 2(1)(f) ,section 21(b) - revision petitions have been filed under section 21(b) of the consumer protection act, 1986 by the petitioners against the impugned order – in which the petitioners were directed to replace the defective car sold to complainant/respondent and also to pay sum of  compensation – court held that commission or the forum in the act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him - revision petitions against these orders have been pending for almost five years as brought out at the time of arguments - since instead of  replace the defective car total compensation is enhanced - revision petitions partly allowed. cases referred: “maruti udyog ltd. versus susheel kumar gabgotra and anr.â€? [(2006) 4 scc 644], “maruti udyog ltd. versus hasmukh lakshmichand and anr.â€? [iii (2009) cpj 229 (nc)] “lucknow development authority versus m.k. guptaâ€? as reported in [(1994) 1 scc 243 at 262-263]. comparative citation: 2013 (4) cpr 145 dr. b.c. gupta, member these two revision petitions, rp no. 1445/2008 and rp no. 1961/2008, have been filed under section 21(b) of the consumer protection act, 1986 by the petitioners against the impugned order dated 11.01.2008, passed by the karnataka state consumer disputes redressal commission (for short the state commission) in fa no. 1227/2007, œmandovi motors pvt. ltd. versus pravenchandrashetty and anr.? and fa no. 1200/2007, œmaruti udyog ltd. versus pravenchandrashetty and anr.? respectively. both these appeals were directed against the order dated 03.05.2007 passed by district consumer disputes redressal forum, mangalore, vide which the petitioners/ops were directed to replace the defective car sold to complainant/respondent no.1 and also to pay compensation of rs.17,000/-. 2. for the convenience, parties are referred as they were before the district forum, i.e., pravenchandra shetty, complainant, m/s mandovi motors pvt. ltd., op no. 1 and maruti udyog limited, op no. 2. brief facts of the case are that op no.1 is the authorised dealer of op no.2, maruti udyog ltd., having right of sale and service of maruti vehicles to dakshin kannada district. the op no.2 is the manufacturer of maruti cars. the complainant had purchased a maruti wagon r vxi euro “ 2 car from op no.1 for rs.3,73,364.62ps. on 29.03.2003, which was duly registered by the regional transport officer, mangalore. the complainant also availed a loan of rs.3 lakh from icici bank and the said car was covered by warranty for a period of 24 months from the date of delivery or 40,000/- km whichever occurs first. it has been alleged in the complaint that since the date of purchase, abnormal vibration was being felt during driving of the vehicle between the speed of 40 km/hour to 80 km/hour. the complainant took the vehicle to op no. 1 a number of times and they tried to remove the defects every time and replaced certain parts as well but to no avail. 3. the complainant has cited a number of specific dates and specific instances in the complaint, concerning the defect in the vehicle. the district forum, after taking into account the evidence of the parties, allowed the complaint and directed the opposite parties to replace the car and also pay rs.17,000/- as compensation and litigation cost. the state commission also upheld this order by dismissing the two appeals filed by petitioners/ops. it is against this order that the present petitions have been filed. 4. the learned counsel for op no. 1 argued that after purchase of the vehicle on 29.03.2003, the complainant made a complaint about the alleged defect on 18.04.2003. the petitioner removed the defect promptly after modifying brake callipers with brass brushes. on 23.08.2003, when the vehicle had run more than 5000 kms, the complainant came for service which was promptly done. learned counsel stated that on subsequent dates also, whenever the complainant turned up with any complaint, that was promptly attended to. he has drawn our attention to a note recorded on 3.3.2005 by some technical officer of the company, where it is stated that trial of the vehicle was taken and the vibration was found in line with other wagon r vehicles. there was no deficiency in service in so far as the petitioner dealer was concerned. 5. in his detailed arguments, learned counsel for the op no. 2, maruti udyog ltd., stated that the only complaint related to abnormal vibration of the vehicle, which could not be classified as manufacturing defect in the vehicle. the learned counsel vehemently argued that the vehicle in question had already run about 1,24,000 kms since its purchase, and hence, it was wrong to presume that there was any manufacturing defect in the vehicle. the orders passed by the courts below could not be sustained on this ground alone. the defect of vibration was recorded for the first time on 14.09.2004 and it was attended to by dealer. the defects pointed out on 14.09.2004 had been mentioned in the job-card, (copy of which is on record). m/s. mandovi motors has also taken trial of the vehicle and vibration was found in line with other wagon r vehicles. in the conditions governing the warranty for the vehicle, it had been stated in clause 4 (m) as follows:- œinsignificant defects which do not affect the function of the vehicle including without limitation sound, vibration and fluid seep? 6. ?the ops had also made a reference in this regard to automobile research institute of india (arii) pune and in their reply, the said institute stated that under the central motor vehicles rules, no limit had been notified for vibration levels. referring to the report of national institute of technology, karnataka, learned counsel stated that the said institute was not a recognised institute to give any opinion in the matter. the learned counsel has drawn our attention to judgement of the honble apex court in œmaruti udyog ltd. versus susheel kumar gabgotra and anr.? [(2006) 4 scc 644], saying that if the petitioner had already taken steps to remove defects in some parts of the vehicle, it was not justified to order replacement of the entire vehicle. he has also drawn our attention to order passed by this commission in œmaruti udyog ltd. versus hasmukh lakshmichand and anr.? [iii (2009) cpj 229 (nc)] saying that in the instant case, the vehicle had run for 11 years and covered approximately 1,20,000 kms; the manufacturing defect in the vehicle had not been proved and it was held that it was not justified to direct replacement of the vehicle. 7. the complainant, pravenchandrashetty, argued the case in person and stated that there was complaint of abnormal vibration in the vehicle from the very beginning and it was quite clear that there was manufacturing defect in the same. he had complained about the defect to the ops many times and also took the car for repairs. he mentioned that the defect had surfaced on the third day of the purchase and till now, he had taken the vehicle 23 times for repairs to the petitioners/ops. he was also asked to take the vehicle to another workshop at udipi, which was 341 km away, for repairs. the complainant stated that as per the report and statements given by the experts from national institute of technology, karnataka, the vehicle suffered from manufacturing defects. the said institute is highly reputed institute and prominent scientists from the institute have deposed in his favour. the orders passed by the lower courts were based on a correct appreciation of facts on record. 8. we have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. a simple glance at the contents of the consumer complaint in question reveals that the complainant had taken the vehicle to the petitioner/op no. 1, a number of times and most of times, some or other part was replaced. the vehicle was purchased on 29.03.2003 and when it was taken to op no. 1 on 18.04.2003, when the said car had run 847 kms only, the defect was recorded by op no. 1 as front suspension noise. the car was delivered back after modifying brake callipers with brass bushes. the petitioner/op no. 1 have admitted in their revision petition that on 18.04.2003, there was complaint of grinding noise, the steering noise, callipers sound etc. which were attended to by the petitioner/op no.1. the petitioner has also admitted that on 16.3.2004, when the vehicle had run more than 15,000 kms, it was brought to the petitioner with complaint of :- (a) gear shifting very hard; (b) clutch operation not smooth and become hard after car warms up; (c) jerk while releasing clutch; (d) ac compressor noise during engaging and vibrating when engaged; (e) rear shock abnormal leaking; (f) front strut hard; (g) door rattling and (h) drive shaft grinding noise. petitioner has admitted that all these defects were attended to, to the full satisfaction of the complainant. again on 9.07.2004, when the car had run 19,801 km, it was brought with a complaint of jerking, engine jerking, etc. and the same was again attended to. 9. on 14.09.2004, when the car had run up to 22,430 kms, the vehicle was again brought to m/s. mandovi motors and the following defects have been recorded on the job card (copy of which is on record):- œengine jerking at low speeds and also at high speeds (40-50 kmph and also at 70-80 km/hr speed) delay starting engine knocking at high speeds check suspension (frt and rear) check brakes vehicle vibration at 70 km/hr tappet noise “ valve clearance to be readjusted.? 10. it has also been stated in the complaint that the car was taken to m/s. a. bharana motors, udupi and the service engineer confirmed that there was vehicle vibration at 70km/hr, suspected due to mounting. 11. on 2.08.2005, the complainant took the car to the experts of the national institute of technology, karnataka, mangalore (for short n.i.t.) for inspection. the experts confirmed the abnormal vibration at speed of 45 km/hr and 70km/hr and have reconfirmed the abnormal vibration by conducting sound level measurements. 12. the sequence of events narrated above leads to the irresistible conclusion that the vehicle suffered from many defects for which it had to be taken for repairs again and again. a perusal of the written statement filed by m/s. mandovi motors pvt. ltd. before the district forum also reveals that the petitioner has admitted having replaced several parts in order to satisfy the grievance of the complainant. a perusal of the orders passed by the district forum and the state commission reveals that they have passed these orders after carrying out detailed analysis of the facts on record. before the district forum, the complainant examined two witnesses from the national institute of technology, karnataka, i.e., dr. appu kuttan, professor department of mechanical engineering and dr. k.v. gangadharan, assistant professor, mechanical engineering. both these witnesses confirmed their written report which states clearly that there were defects in the vehicle. 13. in so far as clause 4 (m) in the warranty for the vehicle is concerned, it deals with œinsignificant? defects like sound, vibration and fluid seep etc. which do not affect the functioning of the vehicle. the facts on record project in very clear terms that the defect of vibration in this vehicle cannot be called œinsignificant? by any standard. since the vehicle was taken to the workshop a number of times and every time some part or the other was changed, leads to the conclusion that there is significant defect in the vehicle. 14. it is abundantly clear from the facts on record that the vehicle, in question, did suffer from defects and the petitioners have been trying to rectify these defects by replacing certain parts from time to time. the definition of defect has been given in the consumer protection act, 1986 itself as per section 2(1)(f) as follows:- œ"defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;? 15. the reports submitted by a reputed technical institute, like the national institute of technology, karnataka and also the remarks recorded by the technical personnel of the petitioner from time to time, make it very clear that the vehicle was a defective vehicle. the petitioner itself has admitted in their revision petition that they replaced the parts from time to time. it is, therefore, immaterial whether the œsubject? of vibration is covered in the warranty under the strict sense of word or not. it also does not matter if any parameters have not been quantified to measure the vibration levels or laid down in the statutory rules. the definition of the word defect as contained in the consumer protection act, 1986, makes it very clear that there was fault, imperfection and shortcoming in the quality and standard of the vehicle. to summarise, it can be safely concluded that the vehicle is a defective one, as made out from the following factors:- (a) the vehicle had to be taken for repairs a number of times. most of the times, there was replacement of some part or the other. the first time, it was taken shortly after purchase of the vehicle, when it had run only 847 km and within one month of purchase of the vehicle. the defects have been recorded on the job-cards on most of the visits. (b) the scientists from a reputed institute like the n.i.t., mangalore, have appeared in the witness box before the district forum and confirmed the defects in the vehicle. (c) the petitioners have themselves admitted in their revision petition that there were many complaints of defects from time to time and they were attended to by the petitioners. 16. from the above narration of facts and circumstances, it becomes crystal clear that the complainant has undergone a lot of mental harassment and agony, amounting to torture, because of the defects in the vehicle. there cannot be a case of bigger mental harassment than to carry the vehicle for repairs to the workshop so many times and still, the problem remaining unsolved. the complainant has also been agitating the matters in consumer courts for the last 8 years and he still has to get the requisite relief. he, therefore, deserves to be given handsome compensation as he has been a victim of circumstances and he has fought a valiant struggle to get his grievance redressed. the word compensation although not defined in the consumer protection act, 1986, has been explained in the order passed by the honble supreme court in œlucknow development authority versus m.k. gupta? as reported in [(1994) 1 scc 243 at 262-263]. it has been stated by the honble supreme court as follows:- œthe word compensation is of very wide connotation. it has not been defined in the act. according to dictionary it means, compensating or being compensated; thing given as recompense. in legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. therefore, when the commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. the provision enables a consumer to claim and empowers the commission to redress any injustice done to him. any other construction would defeat the very purpose of the act. the commission or the forum in the act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.? 17. the honble apex court have thus, made it very clear that the commission or forum in the act is entitled to award not only value of goods or services, but also to compensate a consumer for injustice suffered by him. 18. in the present case, the district forum rightly ordered on 03.05.2007 that the ops should replace the vehicle with a new car alongwith a fresh warranty and also give rs.17,000/- as compensation and costs. the district forum have thus, allowed to the complainant the value of the goods in question and also compensation for injustice suffered by him, in accordance with the principle laid down by the honble apex court. the state commission in their order dated 11.1.2008 dismissed the appeals filed by both ops. the revision petitions against these orders have been pending for almost five years as brought out at the time of arguments. since the vehicle has already travelled more than 1,00,000 kms, looking at the overall facts and circumstances of the case, it shall meet the ends of justice if a total compensation of rs.3,00,000/- is awarded as compensation to the complainant. both the revision petitions are therefore, partly allowed. the orders passed by the district forum and state commission are set aside and it is ordered that both the ops shall jointly and severally pay a sum of rs.3,00,000/- by way of compensation to the complainant within 30 days from the date of pronouncement of this order. there shall be no order as to costs. list on 28.11.2013 for compliance.