ISSAC MATHEW vs Maruti Udyog Ltd.

THE first opposite party is the Maruti Udyog Ltd. who are the manufacturer of Maruti cars and the second opposite party is the Popular Vehicles and Services who are their dealers at Ernakulam. THE complainant purchased a Maruti 800-A/c Car under the NRE Scheme for Rs. 1,28,519. 63 paying the amount in foreign exchange. THE car was despatched from Delhi to the 2nd opposite party at Ernakulam and the complainant was advised to take delivery on 16.6.1990 at 11 A.M. THE complainant alleges that though he went to the 2nd opposite party''s premises on time for this purpose, he was made to wait till 3 p.m. and was not allowed to see the car inspite of repeated requests. On account of this long wait he only checked the outside of the body for dents or damages during transportation. Also considering the reputation of the manufactures he had no reason to suspect any major mechanical defects or replacement of original parts. He therefore took delivery of the car.

BUT the next morning (17.6.1990) he noticed that the car was fitted with a used driver seat and that the balancing weights were missing. Various other defects of a serious nature were also noticed. (A list of 12 defects is given in the complaint but as they have to be mentioned in the context of the Commission report prepared in the course of the enquiry, they are not set out here). On 18.6.1990 the complainant took the car to the 2nd opposite party and showed it to the Sales Manager. The second opposite party pleaded helplessness and suggested that the damage might have occurred in the factory in Delhi itself. Since this was on 18.6.1990 i.e. after taking delivery of the car, all the defects latent and apparent could not be stated in the complaint and suggestion book.

The complainant states that the car which has been registered as KL-7-A-1400 is a damages one and in all probability rejected by the quality control. He further states that he has been cheated by the respondents in selling him a defective/damages vehicle without in any manner disclosing the defects or damage even though he had bargained for a new vehicle and paid the full price.

THE complainant sent a telegram on 22.6.1990 and a letter on 25.6.1990 to the 1st opposite party but he did not receive any reply. THE defects/damages noted necessarily relate to the stage before the vehicle was delivered to the complainant. THEy are of a grave character that inpair the quality of the vehicle causing serious damage and prejudice to the purchaser. THEy cannot be removed or cured by any simple procedure or repairs. He therefore prays : THE opposite parties be directed to replace the vehicle by another new vehicle of the same model Maruti 800 A/C Car or to pay the complainant Rs. 1,36,156.09 in foreign exchange with 18% interest thereon from 21.5.1990 till the date of payment and (b) to pay the complainant Rs. 50,000 by way of damages due to unfair trade practice by supplying the defective/damages vehicle and putting the complainant to hardship and difficulties. The complaint was resisted by the 2nd opposite party on the following principal contentions : The complaint does not fall within the scope of the Consumer Protection Act and is therefore outside the jurisdiction of this Commission. The first opposite party sends the vehicles to the delivery centres and after they reach the centres, they are thoroughly checked up and inspected and then alone is delivery effected to the customer after obtaining necessary records. While taking delivery every customer is entitled to point out any defect/ damage noticed by him. Apart from the above, every vehicle carries a manufacturer''s warranty for performance. The vehicle purchased by the complainant, like every other vehicle was also subjected to the prescribed test for quality control and performance. And no vehicle is offered for sale without curing the defects, if any, noticed during the testing. The delivery time is intimated to the purchasers in advance in order to enable them to take delivery without delay. As the vehicles are subject to servicing and cleaning, the defects, if any pointed out by the purchasers are also rectified. Since leaving the manufacture''s factory till delivery, as in this case, every vehicle is covered by an insurance cover. The averments that the complainant was made to wait from 11 A.M. to 3 P.M. and that he was not allowed to see the car inspite of repeated requests are false and denied. In fact before taking delivery, the complainant had inspected the vehicle and under his instructions certain extra fittings were affixed to the vehicle. He took delivery of the vehicle without protest and after satisfying himself about its performance. On 18.6.1990 he approached the 2nd opposite party and brought to his notice two defects (a) the two front seat covers were of different designs and (b) the tyre attached to the vehicle was old. He was assured that these would be attended to by taking up the matter with the first opposite party and the manufacturer of the tyres. The second opposite party had already conveyed to the complainant that the first opposite party had agreed to replace the covers. As for the tyres, the complainant was requested to contact the second opposite party so that they might bring it to the notice of the manufacturer for replacement in the event of defects, if any. The defects now alleged in the complaint are an afterthought. The vehicle was put to use by the complainant and some of the defects now raised by him were in all probability caused by his negligence. As for the defects falling within the warranty clause, the complainant is entitled to get them rectified in terms of the contract The defects mentioned in the complaint (except the one noted above) were brought to the notice of the manufacturer. The complainant lacks bonafides and his attempt is to get a replacement after having used the vehicle quite for some time. As for the two complaints is those relating to the seat cover and tyre, the complainant had been assured that necessary action would follow. The complainant was bound to put on record all the patent defects at the time of delivery itself. This he has failed to do. No other defect was brought to the notice of the 2nd opposite party within a reasonable time. The allegation that the engine is a damaged one and was rejected by the quality control is incorrect. If the engine had failed to pass the quality control test, it would not have been used, considering the high repute of the first opposite party and the circumstance that it has foreign collaboration. The charge that the complainant has been cheated is baseless. The vehicle is a brand new one. Some of the defects alleged would have occurred at the hands of the complainant due to misuse and negligence. His plea that he is always keeping the car in the garage is a false plea taken to cover up his omissions. In fact the complainant was not cooperating with the opposite parties to subject the vehicle to inspection. The defects pointed out did not exist before the delivery and the plea to that effect is without basis. He can at best seek the assistance of the warranty clause provided the defects fall within its scope. He has no right to any of the reliefs claimed.

NEITHER side called oral evidence. However Counsel for the parties agreed to the documents produced by them being marked and to the appointment of a Commission to prepare a report on the defects alleged to exist in the Car and specified in the complaint and in the list attached to the complaint. Counsel for the 2nd opposite party submitted a panel of 7 names for the choice of a Commissioner. Out of the 7, one name was deleted as he was connected with the opposite parties Counsel for the parties agreed to any one out of the six being selected. We chose number 1, Shri Rajendra P. Naik, a qualified Mechanical Engineer and a licentiate member of the Institute of Insurance Surveyors and Adjusters, Cochin. As directed by us the complainant produced the car at the Maruti show room in Cochin. The Commissioner inspected the car on 8.11.90 and submitted his report dated 12.11.90. The 2nd opposite party filed an objection to the leport on certain points. We shall advert to these points in the sequel. Although there is a passing challenge in the version of the opposite party to the jurisdiction of the Commission to entertain the complaint, nothing was mentioned about it at the hearing. We therefore leave it out of consideration. We now proceed to consider the various defects alleged by the complainant and on which the complaint is grounded with reference to the Commission report P VIII, which is the most important evidence on them. The complainant has listed the following defects and against each item we are setting out the relative findings or observations of the Commissioner. The complainant has no objection to the report while the second opposite party has filed objections. Complaint 1. The driver seat is a used one and is only wrapped with plastic sheet. It is apparent that the design of the cover itself is different from the other two seats. Report (a) : Driver seat Driver seat and adjacent seats were seen of different shades. Driver seat was seen with its colour faded and abnormally pressed downward with its cushion thickness for less than that of the LH side passenger seat. Normally for a new vehicle, both these seats should be of same shape and thickness. However, both these seats should be of same shape and thickness. However, both were different in shade, colour, appearance and in bottom seat thickness. The complainant''s grievance is supported by the report. Significantly the 2nd opposite party''s objection has taken no exception to this point in the report Complaint 2. The balancing weights which are supposed to be on the rims of the wheels fitted on the car are missing whereas the spare tyre in the boot is having the weight. Report (b) : Balancing weights were not there on the four tyres. However these are provided only when the wheels when dynamically balanced require them. Hence, the contention of the supplier is that when the wheel balance is true, addition of balancing is not necessary. This is my opinion also is correct. The 2nd opposite party in his objection has said nothing on this point. The report has taken a balanced view but the omission of the balancing weights which is normally provided in the type of car supports the complainant''s grievance. Complaint 3. The left side front door and the bonnet had been damaged and repaired. Report (c) : Left front door inner was seen having scratch marks. Front hood (bonnet) is seen having a dent mark over which painting is done without levelling. The 2nd opposite party''s objection does not tough upon this defect The report fully or substantially confirms the complainant''s grievance. Complaint 4. The front bumper and the left side front wheel are not in proper alignment on account of the fact that there is some damage to the chassis, and also the centre to centre distance between the front and rear wheels on the left side is less than the right side. Report (d) : Front bumper was seen fitted in order. However centre to centre wheel distance on both sides were different. This in my opinion is due to the damage caused to the front LH fender apron. This apron is seen in crumpled condition and is pressed unusually backward. Correspondingly, the A.C. condenser and L.H front bracket of the bumper are seen in distorted conditon. (Front hood was opened to inspect). Due to this defect the wheel base distance on each side is observed as (d1) LH front to rear wheel centre to centre distance is 2.163 metre. (d2) RH side front to rear wheel centre to centre distance is 2.172 metre. This indicates a difference of 9 m.m. This defect in my opinion is of considerable magnitude. Objection of the 2nd opposite party : The report of the Commissioner in para 6(d) is incomplete. The report does not say which of the measurements 2.163 metre and 2.172 metre is correct. Further jthere is no mention about the tolerance limit in respect of the centre to centre wheel distance of the right side and left side. The objection does not touch the observation of the Commissioner and his remarks. The observation of the Commission supports the complaint Complaint 5. There is considerable/excessive noise from the transmission/drive shaft. Report (e) : Transmission/drive shaft In comparison with similar other vehicles, no abnormal or excessive noise was observed. In the light of this observation which we accept we find no merit in the complaint on this allegation. Complaint 6. The rear luggage space door damper is inactive. Report (f) : Rear dickey door damper is found to be not functioning properly. When released it is showing abrupt return motion whereas, the motion should have been smooth without any jerkness. Objection no remarks. We accept the complaint on this point as it is supported by the report. Complaint 7. The vacum advance hose is missing from the engine. Report (g) : At the time of inspection hose was in position. According to the complainant, this was replaced by him. What is in position is unlikely to be put forward as missing. The complainant''s case that it was missing and was replaced by him appears to be probable and acceptable. Complaint 8. There are many scratches on the body of the car at different places. Report (h) : Body scratches were seen of minor nature and no abnormality is observed. However painting is seen incomplete under the rear LH fender. No objection has been taken by the 2nd opposite party to the observation of the Commission. That observation confirms the complaint, though the defect is not of a serious nature. Complaint 9. The floor under the mat near the driver seat side reveals that the vehicle has been in use previously. Report (i) : Floor under driver seat and its front end was seen having unusual scratch marks with marks of "wear and tear". No objection by the 2nd opposite party to the observation and comments of the Commissioner. They confirm the complaint. Complaint 10. The alignment and positioning of the engine itself is tilted to one side due to bent foundation. Report (j) : Engine is seen slightly tilted to rear LH side. The reason is due to the defect explained under (d) above. The objection taken by the 2nd opposite party is that the finding of the Commissioner is without proper reasoning. It is submitted that the tilting can be measured only in the vertical plane whereas the defect is shown in the horizontal plane. Even if there is difference between the centre to centre of the wheels on the left side and right side of the vehicle, this cannot account for a tilt which is in the vertical plane. There is no measure of the tilt if at all any. There is no categorical denial of the tilt. One would have expected such a stand considering that the 2nd opposite party was virtually the seller and was custodian of the car till its delivery to the complainant. It is true that the extent of the tilt is not specified but the fact of the tilt is specified in the report. We agree that the vehicle has a tilt and that it is a defect. Complaint 11. The radiator and condenser of the air conditioning unit are seen to be dented at the bottom. Report (k) : The radiator and condenser of A/c unit are slightly dented and in tilted position. The reason for this also is the defect under (d) above. No exception has been taken by the second opposite party to the observation of the Commissioner. We accept the observation and hold that the complaint in this regard is genuine. Complaint 12. The painting of the body is seen to have been in a haste and is totally insufficient. Report (1) : Painting in general is found to be in order except under the front LH fender (an apron) front LH door inner, cabin floor, near LH running board and as given under (h) above. The 2nd opposite party has offered no remarks on this observation of the Commissioner. The Commission report is by far the best evidence in the case considering the nature of the complaint and the allegations about the damages. As we pointed out above the Commissioner is a qualified mechanical engineer and was chosen on the agreement of the parties. He has not been shown to be partial to either side and has done his job quite satisfactorily. We accept the report. On the findings in the report the complainant''s grievance numbers 1, 3, 4, 6, 7, 8, 9, 10, 11 and 12 are either fully or substantially confirmed. Item 2 is also in a way supported by the report. Some of the complaints are serious while some are less serious or minor. When a purchaser bargains for a new car and pays a large amount he expects a car without defects and it is no consolation to be told that the defects are not deadly and could be rectified. The complainant has been making complaints from the day after he took delivery of the car. It cannot be imagined that he had kept ready a series of defects to be hurled at the opposite parties even though he is a mechanical engineer as he told us at the hearing. When he found that his grievances were being either ignored or treated light-heartedly he complained to the Prime Minister and that appears to have speeded up the matter. Whatever that be, this complaint and the Commission report establish the genuiness of his grievances almost fully. We find no merit in the plea raised by the opposite party that the defects originated subsequent to the delivery of the vehicle to the complainant. Some of the defects were so glaring that no purchaser of new and expensive car would tolerate them. We find that the complainant has established his case with respect to the 10 items (even if we omit item 2) mentioned above and that the car suffers from these defects. It follows that the complainant is entitled to relief. He has claimed either replacement of the car with a new car or alternatively reimbursement of the price in foreign exchange. All aspects and circumstances considered, we think it best to order replacement of the car particularly as replacement of the car is easy for the opposite parties to arrange and it would avoid the problems of foreign exchange which reimbursement as claimed would involve. The complainant has also claimed Rs. 50,000 as compensation. We feel that he is entitled to be compensated for the inconvenience and hardship he has suffered. He had also virtually denied himself the use of the car although he is its owner. A statement filed by him before the Commission on 7.1.1991 shows that the initial reading of the odometer was 46 KM and that the total runs till then was 475 KMs. The intermediate runs cover the trips to Ernakukam for inspection and short runs cover the trips to Ernakulam for inspection and short runs for charging battery. We feel that while he is entitled to compensation the sum of Rs. 50,000/- is excessive and that Rs. 10,000/- will be reasonable and adequate. We order : (i) The opposite parties will replace KL-7-1400 by another new Maruti 800 A/C car within six weeks from today. As soon as the new car is ready for delivery the second opposite party will issue a written intimation to that effect to the complainant. The new car will be delivered at the second opposite party''s show room at Ernakulam. The day after he received the intimation the complainant will produce KL7-1000 with all the documents and tools relating thereto at the second opposite party''s show room in Ernakulam and surrender them to the second opposite party. He can inspect the new Maruti Car offered and on being satisfied he will accept it in liew of KL7-1400. Each party will give to the other necessary papers and documents to help the other obtain and secure registration. If there is any problem in this matter the parties or the party concerned can apply to the Commission for appropriate direction. (ii) The opposite parties will pay the complainant Rs. 10,000 as compensation within six weeks. (iii) In default of these direction the Principal office bearers of opposite party No. 1 or 2 shall suffer simple imprisonment for 3 months. (iv) Parties will suffer their costs.

Petition allowed.