E.A. PRIYA vs M/S. MARUTHI UDYOG LTD. & ORS.

This revision petition has been filed by the petitioner against the order dated 30.6.2011 passed by the Kerala State Consumer Disputes Redressal Commission (in short, ''the State Commission'') in First Appeal No. 920 of 2003, M/s. Maruti Udyog Limited & Anr. vs. E.A. Priya & Ors., by which, appeal was partly allowed.

Brief facts of the case are that on 29.4.2002 the complainant/petitioner purchased one Maruti Zen LX MPI of ''Rivera Red'' colour from OP-1/Respondent No. 3, who is the authorised dealer of OP-2/Respondent No.2, the manufacturer, for Rs. 3,58,617/-. Immediately on purchase the complainant remitted Rs.18,800/- towards onetime tax and Rs.7785/- towards insurance premium for the vehicle. On the very next day of the purchase, the complainant noticed that the colour of the paint of the dickey was different from the rest of the body of the vehicle. It seemed to have been repainted. Immediately the complainant approached OP-1 with a request to replace the vehicle. Then he was told that the manager was not in the station and then he again approached and then OP-1 told him that they would have to inform the matter to Maruti Udyog before anything. Nothing happened even thereafter. Meanwhile, the first service of the vehicle, which was due at 1000kms. was done by Akkara Car Company, Thrissur another authorised dealer of Maruti Udyog. Subsequently, on 6.6.2002 the complainant made a final request to OP-1. This time OP-1 retained the car with them and gave the complainant a receipt with the remarks "Dickey Defective, (re-painted) as per customer observation". The OP-1 also suggested to repaint the dickey door. But the complainant was not amenable to the same. On 15.6.2002 he received a letter from the Assistant Manager of OP-1 stating that as per their records the vehicle was delivered in good condition. The said statement is not true. The above mentioned defect was noticed by the complainant on the very next day of its purchase. In fact the complainant was delivered with a defective vehicle having a clear manufacturing defect and it is not enough to simply repaint the defective dickey. OP-1 being an agent of OP-2 & 3, so they are also vicariously liable. The OP-4/Respondent-4 is the sales representative of OP-1 in Thrissur District. Alleging deficiency on the part of opposite parties, complainant filed complaint before the District Forum. Opposite parties resisted complaint, admitted that OP-1 is an authorised dealer of OP-2 and OP-3 and that the complainant purchased a Maruti Zen LX MPI. These OPs have nothing to do with the alleged tax and insurance premium amounts paid by the complainant. After paying the invoice amount on 29.4.2002 one Mr. Sajan on behalf of the complainant took delivery of the vehicle with full satisfaction. While taking delivery of the vehicle in good condition the complainant received all belongings of the vehicle including the tools at full satisfaction. The allegation that on the very next day the complaint noticed a defect as to the colour of the paint of the dickey of the vehicle and she approached OP-1 is absolutely false. Virtually there was no grievances or complaint from the part of the complainant regarding the vehicle neither oral nor written whatsoever till 6.6.2002 when the complainant brought the vehicle to the workshop of these OPs. These OPs were never approached by the complainant before 6.6.2002. Admittedly the first service of the vehicle was done by another dealer M/s. Akkara Car Company and there is no complaint from the complainant regarding the alleged problem. The vehicle was perfect and defect free at the time of delivery and the alleged defect might have occurred while the vehicle was under the custody of the complainant for which she alone is liable. It is true that on 6.6.2002 the petitioner brought the vehicle to OP-1 alleging that the dickey door of the vehicle is defective and it is re-painted. Though OP-1 could not verify colour variation in the dickey door of the vehicle, they suggested the complainant for re-painting of the dickey door. Admittedly there was no disfigurement or dent or dip on the dickey door. The alignment of the dickey door is also very perfect. The only alleged defect is the colour variation. OP-1 suggested re-painted but the complainant did not agree with the suggestion. OP-1 was prepared to cure the alleged defect though not liable for the same. However, having obtained the request from OP-2, the manufacturer of vehicle, this OP again expressed their willingness to re-paint the dickey door and rectify the alleged colour variation. By letter dated 15.6.2002 the complainant was requested to grant permission to conduct the re-painting, again on 2.7.2002, the complainant was again requested to give consent. The complainant was also informed that this OP will be forced to charge Rs. 100/- per day towards parking fee as per terms and conditions. Denying any deficiency on their part prayed for dismissal of complaint.

Learned District Forum, after hearing both the parties, allowed complaint and directed opposite parties to refund Rs.3,58,617/- with 12% p.a. interest alongwith compensation of Rs.4,000/- and cost of litigation of Rs. 700/- and further directed to refund Rs.18,800/- towards one time road tax and Rs.7,785/- towards insurance premium. Appeal filed by opposite parties 2 & 3 was partly allowed by learned State Commission vide impugned order and order of the District Forum was modified and opposite party was directed to pay Rs. 50,000/- alongwith Rs. 5,000/- as cost of litigation, against which this Revision Petition has been filed.

Heard learned Counsel for the parties and perused record.

Learned Counsel for the petitioner submitted that learned State Commission committed error in allowing appal partly on wrong observation regarding use of car by petitioner since 2002 whereas car is lying with opposite parties; hence revision petition be allowed and impugned order be set aside. On the other hand, learned counsel for respondents submitted that order passed by learned State Commission is in accordance with law; hence revision petition be dismissed.

Perusal of affidavit submitted by opposite parties 1 and 4 before this Commission reveals that disputed vehicle is lying at their premises for the last 10 years and is not at all road worthy now. Learned State Commission in the impugned order observed that complainant is using car since 2002 onwards which is prima facie wrong observation as complainant is not using vehicle since last more than 13 years and in such circumstances impugned order is liable to set aside.

It is also not disputed that complainant got first service of the vehicle from Akkara Car Company, Thrissur another authorised dealer of Maruti Udyog. Complainant has not placed job card of service on record which is very much important for disposal of the case because the only allegation in the complaint is regarding change of colour of dickey and as per complainant, it has been repainted whereas as per opposite parties at the time of first service, no such defect was pointed out. Opposite party has also denied in its written statement about any protest on next day or till upto 6.6.2006 to opposite party No. 1 pertaining to defect in colour of dickey. In such circumstances, perusal of job card regarding first service at Akkara Car Company, Thrissur is very material and matter is required to be remanded back to learned State Commission to decide appeal after perusal of job card of first service.

Consequently, revision petition filed by petitioner is allowed and impugned order dated 30.6.2011 passed by the learned State Commission in First Appeal No. 920 of 2003 - M/s. Maruti Udyog Limited & Anr. vs. E.A. Priya & Ors. is set aside and matter is remanded back to learned State Commission to decide appeal afresh after considering job card of first service done by Akkara Car Company. Complainant is directed to produce it before State Commission and at the same time opposite parties are also directed to place it before State Commission.

Parties are directed to appear before the State Commission on 17.10.2016.