T.K.SANKARANKUTTY vs MANAGING DIRECTOR, M/S.SIPANI AUTOMOBILES LTD.

THIS appeal is directed against the order dated 1.2.93 of the Kerala State Commission at Thiruvananthapuram partly allowing the relief in the complaint filed by the Appellant.

THE Complainant alleged that he was inspired by the advertisements which stated that the Montana Diesel Car being fitted with a tripple cylinder Diesel Engine with Japanese technology with capacity to run 29 kms. per litre of diesel and booked on 28.4.89 through second Opposite Party the Montana Diesel Car manufactured by first Opposite Party by paying booking charges of Rs. 10,000/-. He paid Rs. 88,000/- towards the cost of price on 2.2.90. He paid on 19.3.90 an additional amount of Rs. 18,503/- towards the increase in price and taxes charged in the new budget. He took the delivery of the car on 24.4.90 from M/s. M.S. and S. Engineers, Cochin who are the authorised agents of the 1st Opposite Party. The Complainant asserted that when he took the delivery of the car on 24.4.90, he detected there itself that there was no evidence of Japanese Technology, that the appearance and performance of the car was poor, and that the care was not corresponding with the specifications contained in the advertisement and bookings. The Complainant further alleged that the car was defective and started giving major trouble within one week of the delivery and had to be repeatedly taken to the second Opposite Party for major repairs and replacement of defective parts at least six times between 25.5.90 and 15.12.90 when Opposite Parties replaced the Engine and Pump enblock. The Complainant claimed a compensation of Rs. 2,50,000/- besides replacement of the car. In the version filed by the Opposite Parties before the State Commission several preliminary objections were taken. It was asserted that as per clause 7 of the terms and conditions of the sale agreed by the Complainant, any dispute that may arise between the parties should have been referred to the Courts in Bangalore and that the Kerala State Commission has no jurisdiction. It was also asserted that the State Commission ought not have adjudicated the complicated facts which required the evidence and the Comp lainant should have been directed to go to the Civil Court. The Opposite Parties stated that the Complainant made imaginary complaints several times and were attended to and he always took delivery of the car after expressing his satisfaction over the work done by the Opposite Parties by signing satisfaction voucher and thus there is no deficiency in service. The Opposite Parties denied that the car had any manufacturing defects or there was any deficiency in service.

THE State Commission in the order under appeal repelled the preliminary objections raised by the Opposite Parties. On merits the State Commission referred to the portion of the complaint reading as under: "I took the delivery of the car on 24.4.90,1 detected there itself that there was no evidence of Japanese technology in my car. The appearance and performance were very poor. The car could run 16 to 17 kilometers/litre of diesel."

RELYING on this, the State Commission came to the conclusion and in our view, rightly, that the Complainant had waived the condition by accepting and using the car after having detected that the car was defective and was not corresponding with the specifications. The State Commission after referring to the job cards and the cash bills paid by the Complainant awarded a sum of Rs. 3,000/- as compensation for the loss incurred by the Complainant and Rs. 5,000/- for the mental agony suffered. Mr. John Joseph, the learned Counsel for the Appellant faintly urged that the State Commission should have granted the relief of the replacement of the defective car. His main submission, however, is that the compensation of Rs. 3,000/- awarded by the State Commission for the loss incurred by the Complainant is low and that an award of Rs. 5,000/- as compensation for the mental agony sustained by the complainant is also too low by any standard. It is clear from the record that the Complainant incurred expenses for taking the car from Trichur to the Service Station at Ernakulam and back home at least six times during the period between 25.5.1990 to 5.12.1990. The vehicle remained at the workshop of the second Opposite Party for several days. It is also clear from the record that the Complainant incurred the expenses of a total sum of Rs. 1,828.20 towards the price of parts and service charges before the replacement of the engine and pump enblock. The car was returned to the Complainant only on 5th December, 1990. The first Opposite Party-the manufacturer is thus responsible for the loss suffered by the Complainant in incurring extra expenditure for the repairs of the car and the expenses incurred for taking the car from Trichur to the Service Station at Ernakulam besides the Complainant is entitled to be compensated for mental agony suffered by him for a long period of about a year. We, therefore, modify the order of the total compensation of Rs. 8,000/- granted by the State Commission to Rs. 15,000/- which will meet the ends of justice between the parties.

IN the result the appeal is partly allowed. The first Opposite Party is directed to pay total compensation of Rs. 15,000/- to the Complainant within one month from the date of the receipt of this order failing which the said amount shall bear interest at the rate of 18% p.a. from the date of order till payment. We make no order as to posts of the proceedings in this Commission.