(Per Ms. Cynthia A. Colaco, Member) The present complaint is filed under section 12 of the Consumer Protection Act 1986, as against the Opposite Parties wherein it is stated as under:
1. The Complainant had purchased a Vehicle from the Opposite Party no. 2, the Opposite Party No.1 being the manufacturer. The said vehicle i10 ERA I-IDSIV F/L, had a power steering and was purchased for a consideration of Rs. 3,93,891/- in the year 2013.
2. That subsequent and immediately on purchase of the vehicle, the Complainant noticed that the steering wheel was not responsive, that it was unable to revert to its original position in the course of its steering.
3. That it was extremely hazardous to drive the vehicle even at the lowest speed and as a result of the power steering malfunctioning the Complainant had met with a minor accident. That the said problem was intimated to the Opposite Party no.2 on several occasions and the Complainant had also made an endorsement in the communication dated 29-04-2013. there is still power steering in same. It is very hard and not coming back to normal position when driving in straight line. There is manufacturer problem in steering. It cannot drive this vehicle. It will lead to accident and risk my life. Kindly rectify the problem or find the alternate solution.
4. That despite the inspection of the steering wheel by the Opposite Party no.2 they had neither remedied the defect nor addressed the concerns of the Complainant.
5. By a subsequent letter the Complainant again addressed the nature and magnitude of the malfunctioning, that the steering wheel had a serious defect as it was extremely restrictive and does not revert back to its normal position on its own inertia after the application of the steer movement, thus making driving the vehicle an absolute risk. That there appears to be a manufacturing defect in the steering wheel and the vehicle could not be driven.
6. That the Opposite Party has wrongly observed that there is no issue to be addressed regarding the steering wheel and further stated that the parameters pertaining to the steering are within the tolerance specified under the manufacturing standards. That the current i10 vehicles are fitted with 35A steering volume motor as against the earlier models which used a 65A steering motor. That all technicalities explained does not change the fact that the steering wheel is incapable of reverting back to its normal position compromising the safety of the passengers.
7. That several emails were addressed pointing out the defects and requesting correction of the defects and as the Opposite Parties were evading providing satisfactory explanations regarding the malfunctioning, they were requested to either remedy the defect or to address the concerns of the Complainant and if that was not possible to recall the said vehicle.
8. As all attempts to remedy the present issue, which was prevalent right from the time of purchase of the vehicle, were to no avail, the defects persist till date, the Opposite Parties have been indifferent and have neglected to even try to understand the nature of the problem and to either investigate the cause or attempt to rectify the same.
9. That the Opposite Party no.1 who is the manufacturer is responsible for the quality standards to be maintained in vehicles and is therefore liable for defects or imperfections in the quality and standard of the vehicle. The Opposite Party no.2 relentlessly resisted all attempts to rectify the issue and has been extremely arrogant in addressing the Complainants concerns; that on receiving several complaints from the Complainant regarding the issue, diligence and care should have been exercised. That the malfunctioning in the steering mechanism ought to have been rectified or any alternative steps ought to have been taken after consultations with the Opposite Party no.1. This act constitutes deficiency of service.
10. That the malfunctioning in the steering mechanism is the fundamental of the road worthiness of the said vehicle and without rectification of the same it becomes hazardous to the life of the Complainant, its occupants and the general public as well.
11. The complaint came to be filed praying that: (1) The Opposite Parties nos. 1 and 2 be directed to recall the said vehicle. The Opposite Parties nos. 1 and 2 be directed to refund the purchase consideration of Rs, 3,93,891/- along with interest of 18% per annum. (2) The Opposite Parties Nos. 1 and 2 be directed to compensate the Complainant a sum of Rs 2,00,000 for losses incurred by him as a result of the non usage and other miscellaneous expenses accrued. (3) For costs. (4) Any other order that the Honble Forum deems fit and proper in the circumstances.
12. The Complainant has relied upon a list of documents along with the xerox copies of the documents.
13. The complaint was presented on 03-01-2014 and admitted on 17-01-2014.
14. The Opposite Party no. 1 filed their written version wherein they submitted that the complaint was baseless, frivolous and formulated on misleading facts and was devoid of merits and has been filed to gain undue publicity and bring disrepute to the Opposite Party no. 1 and hence is liable to be dismissed.
15. That the steering system of the vehicle is perfectly okay and working within the specified parameters as the Opposite Party maintains strict quality control checkup over all its vehicles and no abnormality was observed when the vehicle was checked by the Opposite Party no. 2.
16. That the Complainant had been driving the said vehicle for about nine months and had travelled a distance of about five thousand kilometers which would not be possible with a defective car.
17. That the Complainant has not placed anything on record to suggest that the vehicle suffers from manufacturing defect except for mere averments without any corroborative and concrete evidence; that the prayer for replacement of vehicle even if the allegations made were true could be rectified by minor repair work or adjustment and not by the replacement of the vehicle as alleged.
18. The Opposite Party No.1 relied upon the judgments of the Honble National Commission in Mahindra and Mahindra Ltd. V/s B. G. Thakudessai and anr. and M/s Tata Engineering and Locomotive Co. Ltd. and anr. V/s M. Mossa as well as in the matter of Dr. Hema Vasantilal Dakoria V/s Bajaj Auto Ltd. and ors. The warranty policy offers two years unlimited mileage warranty from the date of the delivery of the vehicle and does not contemplate replacement nor refund of the purchase price. The relevant policy lays down .Authorized dealer shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period.. At no cost to the owner of the Hyundai vehicle for parts or labour. Reliance is placed in this regard in the matter of the Honble Supreme Court in the matter of Maruti Udyog Ltd. v/s Susheel Kumar Gabgotra and anr. wherein it is held that this is not a case of silence of a contract of sale as to warranty. Therefore, the High Court was not justified in directing replacement of the vehicle.
19. That the title of the Hyundai vehicle passes to the concerned dealer the moment it is put on the common carrier. Therefore the Opposite Party no. 1 deals with all its dealers on a principal to principal basis. The Opposite Party no.1 being the manufacturer of Hyundai cars is responsible to the warranty obligations alone.
20. That the present car is fitted with a 35A steering column motor which is updated as per the market conditions and customer satisfaction and the features provided in the car manufactured at two different points of time cannot be compared.
21. That every time this concern was raised no manufacturing defect was found in the steering. That the Opposite Party No.1 is willing to perform its obligations as per the warranty policy.
22. The complaint was denied. That this Forum has no jurisdiction as the Opposite Party No.1 is beyond the territorial jurisdiction and prayed that the complaint be dismissed.
23. The Opposite Party no.2 also filed their written version stating that all i10 vehicles manufactured after 2012 are fitted with 35A steering wheel and that vehicles manufactured prior to that were fitted with 65A steering column. That the steering wheel is in a perfect condition and functioning properly and does not have a manufacturing defect.
24. That the test drive was taken along with three other similar i10 vehicles and the vehicle was found without any defect or malfunctioning. That the question of initiating any action to remove and find remedy to the defect did not arise.
25. That the Complainant has not brought on record any evidence or report of an expert to show that the steering wheel has any manufacturing defect as alleged.
26. The Complainant alleges that he met with a minor accident but has not brought any proof of FIR or Police complaint to show that he met with an accident.
27. That there is no malfunctioning of any nature to the steering wheel of the vehicle. That the signature on the hand written note dated 29-04-2013 is denied as that of the Complainant. That it is evident from the hand written letter that there is an assumption from the Complainant that the accident could have occurred.
28. The communication requesting that the steering wheel column be replaced with a 65A steering wheel column is not replied to as the Opposite Party no.2 is only the authorized dealer of the Opposite Party no. 1 and does not have the power and authority to modify the engine or any spares to the vehicle, which is manufactured by the Opposite Party no.1. It was prayed that the complaint be dismissed with costs.
29. We have gone through the complaint, written versions, affidavits-in- evidence, the questionnaires and written arguments of both parties.
30. The issues that come up before us are:
A) Whether the Complainant proves that the steering wheel is unable to revert to its original position when turned left or right in the course of steering, due to a manufacturing defect?
B) Is the Complainant entitled to get his vehicle recalled and purchase price refunded?
31. From the complaint the Complainant has made out a case that time and again he had to approach the Opposite Party no. 2, with the problem of the power steering wheel being very resistive, and not reverting back to its original position in the course of steering on its own inertia, compromising the safety of the passengers and making driving dire and dangerous and a risk.
32. From the Invoice document on record it can be seen that the vehicle was purchased on 28-03-2013. There is correspondence produced by the Complainant right from 29.04.2013 between the Complainant and the Opposite Party no.2 addressing the problem of the power steering wheel not reverting back which correspondence between the Complainant and the Opposite Party no.2, have been acknowledged by the Opposite Party no.2 in the written version as well as in the affidavit in evidence filed by the Managing Director.
33. Apart from the complaint and documents on record, the Complainant has also relied on the affidavit of Mr. Manuel Pereira who is a qualified Automobile Engineer running a service station and who has stated in para
6 of his affidavit that he had driven the said i10 car at the speed of 40 kms /hr on straight roads and 10 kms /hr on turns and noted that the steering wheel does not turn back freely and further stated that it is a manufacturing defect and cannot be repaired and that the said defect is dangerous and could be a cause of a serious accident. In his cross examination in answer to various material questions to elucidate his affidavit, he has stated that: His technical services only included the ascertainment of the road worthiness of the drive quality vis a vis the steering mechanism, which needed no specialized equipment to ascertain whether the steering mechanism was effective during the course of the drive except the knowledge of mechanics which I possess to the full extent. I say that reasonable sense would suffice to arrive at the conclusion that a qualified technician is equipped with the basic knowledge of steering dynamics and mechanisms. The steering mechanism was stated to be a power steering and therefore expected to have a capacitive and a lighter handling, turning and cornering. It is rather immature and absurd to even suggest a visual epiphany to detect a mechanical defect. I say that I drove the said vehicle personally at different speeds and on different terrain to assess that there was all possibility of a steering mechanism failure. I say that the defect is rather very hard to accomplish during such a very short period of time of driving the said vehicle. I say that such suggestions are absurd. I say that the said vehicle labored under some steering defect which was inherent either to the vehicle or the process of manufacture. It is not true to suggest that there is no manufactory defect in the said vehicle.
34. We have also perused the affidavit in evidence of the witness of the Opposite Party no.2 Mr. Sharad Vasant Habbu, Assistant Manager of Opposite Party no.2., merely stating that the vehicle of the Complainant does not have any steering wheel problem. His affidavit however did not elaborate the concerns of the Complainant, merely making a statement that he had taken a test drive of the vehicle and that the vehicle was in perfect condition. The Opposite Party no. 2 chose not to answer the questionnaire which was put to him by the Complainant. Answering the same would have elucidated more clearly the affidavit filed by him.
35. Similarly from the documents on record we find questionnaire addressed to Prashant Joshi, Managing Director of the Opposite Party no. 2 who had filed his affidavit and who stated that he did not wish to reply to the questionnaire. So also there is an affidavit of Shri Sharad Vasant Habbu who is the witness of the Opposite Party no.2 and the questionnaire put to Shri Manish Kumar who is the witness of the Opposite Party no.1, which interestingly have not been answered. We are therefore compelled to invoke the provisions of section 114 of the Indian Evidence Act. We place reliance on the matter of Iswarbhai C. Patel V/s Harihar Behera reported in AIR SC 1999 1341. We therefore draw adverse inference as against them.
36. From the complaint and the correspondence on record entered into with the Opposite Party no.2, it is ascertained that the Complainant was facing a problem with the power steering wheel which was extremely restrictive and unable to revert back to its normal position on its own inertial making driving the vehicle an absolute risk, that the same was conveyed to the Opposite Parties within a month of its purchase .
37. It is also seen that the Complainant has time and again addressed the problem faced by him to the Opposite Party no.1, through emails and as well as to the Opposite Party no. 2, who has neither sought to address the problem faced by the Complainant or remedy the defect of the steering wheel not reverting to its original position in the course of its steering.
38. The Complainant has time and again requested the Opposite Parties to either correct the defect or recall the vehicle, to which the Opposite Parties have persistently replied that the parameters pertaining to the steering are within the tolerance specified under the manufacturing standards. (emphasis added) and the Opposite Party no.1 has constantly replied .. on the contrary i10 is a very well accepted and proven product both in the Indian and overseas markets. Please do not have any apprehension regarding the quality of product. 10/-
39. Although the Complainant has stated that he has met with an accident due to the faulty power steering wheel of the vehicle, there is nothing brought on record to prove the accident. Neither is the demand of the Complainant that the current 35A steering be replaced by a 65A steering wheel column justified. The 65A columns were replaced by the 35A steering column by the manufacturer somewhere in October 2012.
40. The Complainant has prayed that his vehicle be recalled and purchase consideration be refunded to him.
41. This Forum has decided a similar matter where the complaint was in respect to the power steering of an i10 manufactured in the year 2012 . In the said matter of Hyundai Motors India Ltd. through its authorized signatory V/s Mrs. Cijoni Mathilda Dias and another in the Appeals Nos.
3 of 2014 and No. 5 of 2014 wherein it is held as under:-
2. Some more facts are required to be stated to dispose of the appeal.
3. The Complainant purchased from the OP No. 2 the dealer an i10 car steering.
4. The Complainant found, after about 10 days that the steering had a problem in that the steering wheel was not rotating smoothly and whenever the steering wheel was turned right or left it would not come back to its normal original position. The Complainant therefore, wrote a letter on 01/03/2012 complaining about the said defect. The Complainant then took the car to OP No. 2, dealer, with the said complaint of hard steering on 02.03.2012 and again for the first free servicing on 17.4.2012, with odometer reading 1274 kms, and for the second free servicing on 04/08/2012 with odometer reading 2925 kms. The grievance of the Complainant could not be sorted out. The other grievance of the Complainant is that the car gives a very poor mileage of 8.5 kms/ltr., as against promised mileage of 20.36 kms./ltr. 5.The Lr. District Forum, by the impugned order dated 28/11/2013 has directed the OPs to refund to the Complainant the price paid by the Complainant with interest @ 9% p.a. from 17/02/2012 until payment is made and on refund, return of the car.
6. As regards the first grievance of the Complainant, about the defective steering wheel, the OPs contend that previous i10 cars manufactured prior to October 2011 had a 65A steering column motor which was very smooth and at the slightest touch would turn the steering as compared 11/- to 35A steering column motor. When asked, whether the steering column motor could now be changed, the OPs have submitted that the Complainants car cannot now be fitted with 65A steering column motor as that has been discontinued.
7. To support her case on the first defect, the Complainant produced the following evidence:
a) Letter dated 01.11.2012 written by the M.D. of OP no. 2 to one Manu Srivastava of OP No. 1 stating that I dont agree with the view of Sharad that the car steering system works the same way as new i10 cars after modification. I have personally driven the car along with the customer and Vijay Kamat and found the steering worse than on the new modified system. The steering just does not come back. I tried convincing the customer to give us the car to sort out the issue but he refused since he had filed a case
b)The Complainant has also filed the affidavit of Conroy de Mello. Conroy de Mello is a BE in Mechanical Engineering, and he has stated that when the steering wheel is turned left or right, it remains in the same position and does not come back freely to the normal position- straight position. He has stated that he drove the car at the speed of about 30 kms. per hour on the straight road and 10 kms per hour on turns, and, he has opined that the car of the Complainant cannot be driven like other vehicles like Hyundai, Verna, Maruti A Star and Honda Brio.
c) Complainant has also filed the affidavit of Shalom Sardinha. He is also a BE in Mechanical Engineering. He has stated that the Complainants car steering wheel does not rotate smoothly and further when the steering wheel is turned right or left, it remains in the same position and does not come back freely to the normal - straight -position. He has also stated that he has test driven the car, (in the same manner as the said Conroy de Mello) and according to him, the Complainants car is not smooth like Hyundai, Verna Maruti A Star and Honda Brio.
d) Complainant has filed the affidavit of Manuel Pereira . He is an ITI Automobile Engineering and, does repairs, servicing of cars manufactured by different companies. He has also stated that when the steering wheel of the Complainants car is turned right or left, it remains in the same position and does not come back freely to normal- straight-position. He too took a test drive of the Complainants car and found that the steering wheel does not move freely as compared to other vehicles having power steering which according to him is a manufacturing defect.
8. The overwhelming evidence produced by the Complainant is a clear proof that although the Complainants car has a power steering it does 12/- not work as a power steering should work and which defect the OPs have failed to and are unable to rectify to the satisfaction of the Complainant. In fact the Lr. District Forum, in the impugned order, has observed in para 20, that the admission in letter dated 01/11/2012 is not reflected in the written version of OP No.2 or in his evidence or in their affidavit in evidence or in their written arguments, but quite on the contrary he the M.D. has stated that the steering wheel is slightly hard as compared to the previous i10 vehicle. In other words, the admission is not sufficiently explained. The Lr. District Forum has relied on the evidence of the said witnesses and the qualifications given by each of them and we see no reason as to why it should not have been relied upon. It was always open to the OPs to have disproved their qualifications or their expert opinions by producing the opinion of their own experts. A submission was made that the Complainant had test driven i10 before purchasing the same. Complainants answer is that i10 car test car driven by her was fitted with 65A steering column motor and the test drive car had remained the same. That sounds to be more probable and plausible.
42. We have also considered the following decisions:
I) Hyundai Motors India Ltd. v/s Affiliated East West Press (P) Ltd & anr. decided on 29.11.2007 reported in (1) CPR 318 (2008)(NC) in which it was held as under:- "25.- In our opinion , from the admission made by the petitioner it is clear that the vehicle had gone to them on several occasions for repair. In our view, there is no necessity for a new car to go to workshop on several occasions for repairs within a short span of one year of its purchase.
26. As stated above, with such a vehicle the customer would not be satisfied. May be that such defects may occur in one out of thousand vehicles but, at the same time it is the duty of the reputed/established manufacturer to replace such a vehicle. We cannot lose sight of the fact that vehicles which emit smoke beyond the specified levels, are not allowed to ply on the roads.
II. Maruti Udyog Limited V/s Sushil Kumar Gabgotra and others reported in II (2006)CPJ 3(SC) wherein Their Lordships of the Supreme Court Arijit Pasayat and Tarun Chatterjee held under similar circumstances that Their Lordships would rely on the judgment delivered in the case of Jose Phillip Manupalli V/s Premier Automobiles (2004)
2 SCC 278.
III. In the matter of Mahindra and Mahindra Ltd. V/s B G Thakurdessai and anr reported at CPJ 225(1993) (NC); C/ N. Anantharam v/s M/s Fiat India Ltd. reported at 1 SCC 460(2011); B.P.L Ltd v/s N. Rathinasabapathy delivered by the National Consumer Dispute Redressal Commission, New Delhi decided on 27th September 1994; R. Baskar v/s. D.N. Udani reported at IV CPJ 257 (2006). 13/-
IV. Bajaj Auto Limited V/s Santosh S. Tari reported in (1) CPR 394 (2001), decided on 29.6.2009; Ch Raghuram (Dr) vs Kasuladev Anusha and Ors.
396 CPR (2011) (1)decided on 26-5-2010; Fiat India Ltd V/s S. K. Verma reported in (1) CPR 409( 2008) (NC)New Delhi decided on 19-11-2007; Ressy Stephem vs M/s Life Insurance Corporation of India reported in (1) CPR 411(2008) (NC) decided on 15-11-2007; M/s Hyundai Motors India Ltd V/s Affiliated East West Press (P) Ltd & Anr. reported in (1) CPR 218 (2008 )(NC) New Delhi decided on 20-11-2007; Mrs Kamla Gupta vs Dr. Shardendu Bali reported in (1) CPR 322 (2008 )(NC) decided on 20-12- 2007; Thiru John V/s Returning Officer and others reported in AIR 1724 (1977), SCR (3) 538; Divisional Manager United India Insurance Co Ltd and anr. V/s Samir Chandra Chaudhary decided on 14th July 2005 by the The judgments reiterated the position of law and are consequently not discussed in detail.
V. In the matter reported in 1 SCC 460 (2011) decided on 24.11.2010 in the case of C. N. Aantharam V/s M/s Fiat India Limited and others , Their Lordships Altamas Kabir and Cyriac Joseph held that after relying on the decision Indochem Electronics V/s Additional Collector of Customs (2006) 3 SCC 7211 wherein while considering the provisions of Section 3 and 14 of the Consumer Protection Act, 1986 this Court was of the view that when the deficiency began to manifest themselves, it was the duty of the suppliers to attend to such deficiencies immediately and if the supplier was unable to attend to the deficiencies and malfunctioning of the system soon after installation it would amount to deficiency of service Furthermore when the deficiencies in the system continued to persist during the warranty period, including the extended period, the suppliers were rightly held to be liable for deficiency of service by State and National Commission. It was also held that in the light of the specific power conferred under Section 14 (1) of the said aforesaid Act , damages equivalent to the price of goods could be awarded, despite the provisions of Section 12(3) of the Sale of Goods Act 1930 as the provisions of the 1986 Act are in addition and not in derogation of any other provisions of law.
15. Having considered the various submissions made on behalf of the parties, what emerges is the question as to whether the manufacturing company and by extension the dealer/agent was under any compulsion to replace the vehicle itself when the engine of the vehicle from which certain noises allegedly emanating had been replaced. It has been explained that an engine operating on diesel makes rattling noise which does not occur in petrol driven engines and there was really no manufacturing defect in the vehicle as purchased by the purchaser
16. In such circumstances the order passed by the National Commission impugned in these Special Leave Petitions does not appear to be unreasonable. For whatever reason except for a mere eight hundred kilometers the petitioner has not used the vehicle after it was delivered and 15/- has, on the other hand made several complaints in attempt to prove that there were manufacturing defects in the vehicle. The National Commission has taken all these matters into consideration in giving the impugned directions regarding the delivery of the vehicle to the petitioner after the same is properly checked by an independent technical expert who would have to certify that the vehicle was free from any defect when it is delivered.
17. From the facts as disclosed it appears that the complaint relating to the noise from the engine and the gear box there were no major defect which made the vehicle incapable of operation, particularly when the engine was replaced with a new one. However in addition to the directions given by the National Commission we direct that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to the refund of the price of the vehicle and lifetime tax and EMI along with interest of 12% per annum and costs as directed by the State Commission.
43. It is relevant to stress that the present Opposite Party No. 2 was a party to a decision of the Honble National Commission, New Delhi delivered on 29.11.2007 in the case of M/s Hyundai Motors India Limited V/s M/s Affiliated East West Press (P) Ltd and anr. reported in 2008(1)CPR 318 (NC)wherein it was clearly held as under:-
26. As stated above, with such a vehicle the consumer would not be satisfied. May be that such defects may occur in one out of thousand vehicles but, at the same time it is the duty of the reputed/established manufacturer to replace such a vehicle. We cannot lose sight of the fact that vehicles which emit smoke beyond specified levels are not allowed to ply on the roads.
27. It is also contended by the learned counsel for the petitioner that the car was used by the Complainant for more than one year and, therefore, appropriate deduction in the amount payable to the Complainant be made. In our views, this submission cannot be accepted because the Complainant has also invested money for purchase of the said car and on the same amount he has lost interest. The car was required to be used after repeated repairs. In such a case it was the duty of the petitioner to replace the car as they were not in a position to rectify the defect. Hence there is no question of deducting any amount in the present case.
28. In this view of the matter, the order passed by the State Commission does not call for any interference in revision. As stated above the petitioner has deposited a sum of Rs.4,00,000 which has been withdrawn by the Complainant. Hence the petitioner shall pay the remaining amount of Rs.2,59,783 along with the sum of rupees twenty five 15/- thousand awarded by the State Commission by way of compensation to the Complainant, within a period of four weeks from to-day. The revision petition stands dismissed accordingly. There shall be no order as to costs.
44. After perusing the judgments cited and those discussed above what falls for consideration is whether the Complainant in the facts and circumstances of this case is entitled to be given a replacement of the vehicle or is entitled to an order against the Opposite Parties directing them to replace the defective part of the vehicle which is the steering wheel assembly.
45. Considering that the judgment in C. N . Aantharam V/s M/s Fiat India Limited and others Their Lordships Altamas Kabir and Cyriac Joseph decided on 24.11.2010, the judgment of M/s Hyundai Motors India Limited V/s M/s Affiliated East West Press (P) Ltd and another reported in 2008(1)CPR 318 (NC) and the order of our Honble State Commission in the matter of FA No. 03/2014 and 05/2014 decided on 10/03/2014 in Hyundai Motor India Limited v/s Mrs. Cijoni Matilda Dias and M/s. Goa Motors Pvt. Ltd. v/s Mrs. Cijoni Matilda Dias and the facts and circumstances of the present case, the behavior of the Opposite Parties that the steering wheel of the Hyundai i10 as assembled by the Opposite Parties suffers from defect which the Opposite Parties are unable to cure, we find that the reasoning adopted by these judgments to the effect that the said vehicle should be replaced.
46. It is pertinent to stress that the Managing Director of the Opposite Parties and their technical personnel are the same as were in that case cited above and similarly one of the witnesses of the Complainant is one of the witnesses in the case cited above.
47. Persons purchasing goods make a comparable study of the total consideration they have to pay, the amount they would be required to spend for the purpose of availing the services of such goods and the comforts ensured by such vehicles including the safety in the use of the same it would be absurd to presume the contrary. 16/-
48. It is necessary to point out that the purchasers of vehicles base themselves of the representations made by the Manufacturers in their brochures and their agents with respect to the safety of the vehicle and with respect to the expenditure they would incur on the running of their vehicle. Subsequently such purchases are done under the explicit and implicit belief that the representations are genuine and factual and the purchase is not done for being forced with spending time to frequent the service centers maintained by the Opposite Parties and the very fact that the purchaser is compelled to approach the service centers out of turn by itself would amount to vehicles being sold with manufacturing defects which is definitely not acceptable to the purchasers. The choice made in purchasing a vehicle with power steering is also an additional cost for which the purchaser pays. The merchandise that is put for sale cannot be suffering from defects as it would make the use of the said vehicle a traumatic experience rather than a pleasurable one. . As can be ascertained from the complaint and from the correspondence and other evidence led by the parties it is a crystal clear case of imperfection in the manufacturing of the vehicle and the manufacturers are duty bound to make good the deficiencies whether the same are the defects of a part of the vehicle or otherwise and the spacious plea of the manufacturers that the deficiency is of a part of the vehicle that can be substituted cannot absolve them of the duty and care of manufacturing precision vehicles without any manufacturing defects. It is precisely the role of the Research and Development Department of the manufacturers to see that the vehicles are not delivered without clearing all the defects in the vehicle.
49. The Legislature in its wisdom did not enact the Consumer Protection Act to justify callous and inconsiderate production of consumer items in order to stack the Redressal Forums with complaints of manufacturing defects whether of parts of the vehicle or in its totality and therefore the concept of covering itself under the umbrella of a part being defective and therefore seeking reprieve from the perfection of its machinery cannot be tolerated. 17/-
50. Every manufacturing unit should have as its prime duty to see that the product put by them in the market comes to the market after the same is fully tested with respect to the same and that the same complies with the representations made by it to the customers and that the same is as per standards. The customer based on the representations made by the producer with respect to its quality which includes the service it intends to provide, the cost at which it will be provided and the period for which the same shall be provided venture to on the basis of their financial capacity to purchase the said goods. No customer would purchase a good if he knows that the said representations made are not true. It is not the intention of the customer to purchase an article with the intent to spend time in complaining about the same and spending time in rectifying the defects even if the manufacturer may be made to pay for such defects. The concept of warranty is not for giving an umbrella to the manufacturer to produce defective goods and sell them in the market and after having accepted the consideration for the same excuse themselves contending that the part of the machinery was defective and the same has to be changed. It is the bounden duty of the manufacturer to see that the purchaser is not put to difficulty for its non performance of its Research and Development Department.
51. From the complaint, written version and affidavits, it is crystal clear that Opposite Parties failed in their duty to deliver a vehicle free from any defects which the manufacturer is bound to do and which it has avowed itself and made such representation to the customer and therefore cannot resile by delivering a vehicle which to their knowledge has not passed the test of precision and perfection as represented by them to the customers. The delivery of a vehicle which is imperfect by itself whether the same is consequential to a single component or due to the totality of the components is not acceptable and therefore there cannot be a justification on the part of the manufacturer to put the customer in inclement situations due to its inadequacy and lack of perfection. 18/- 52.Therefore the purchaser of a machinery who purchases the machinery which consists of several parts put together by the manufacturer and the same is found to have a manufacturing defect, the manufacturer is duty bound to replace the manufactured article which he represented to be perfect and to substitute the same with a defect free vehicle without any demur or delay so as to avoid inconvenience to the customer and to avoid the customer spending his precious time in complaining about the defect whether the same is of a part of the machine or the machine in its totality.
53. The Complainant purchased the vehicle from the Opposite Party No. 1 through its dealer the Opposite Party No. 2 and within a few days from the date of the purchase the vehicle developed the stiffness in its steering wheel and immediately complained to the Opposite Party No. 2 which the Opposite Party did not attend to and therefore the Complainant was compelled to spend time in taking an opinion from Manuel Pereira who has clearly and unequivocally opined that the same is a manufacturing defect. The grievance of the Complainant is genuine and stands established and in fact it was the bounden duty of the Opposite Parties to replace the said vehicle with a new vehicle after establishing through their Research and Development Department that the vehicle is free from all and any imperfections.
54. The intransigent attitude of the manufacturer in terming the complaint as baseless, frivolous and being formulated on wrong and misleading facts and termed as being devoid of any merits deserves to be frowned upon .
55. The callous and indifferent attitude of the Opposite Parties and their managers in redressing the grievance of the Complainant is to be deprecated. It is further most unfortunate that this Forum had earlier considered the same defect of the steering and was of the considered opinion that since the said defect is not curable even by replacing the said power 19/- steering with a new power steering 35A the said defect would continue to persist since the said motor of 35A steering is by itself defective and such defect is not curable. This becomes absolutely clear from the behaviour of the Opposite Parties who have refused to reply to the questionnaire filed by the Complainant. Therefore adverse inference is drawn by this Forum to the effect that the replacement of the power steering of 35A with another power steering of 35A which would not in any way alter or change the defect since the said power steering of 35A motor is by itself defective beyond cure.
56. The Complainant has proved that the steering wheel is unable to revert to its original position when turned left or right in the course of steering and that the same is consequent to a manufacturing defect and that the same is incurable.
57. The Complainant has further proved that since the defect of the power steering with 35 A motor is incurable the Complainant is entitled to be paid the sum of Rs. 3,93,891/- along with interest at eighteen per cent per annum from the date of the purchase of the vehicle upto the date of the actual payment of the said sum to the Complainant .
58. This Forum tried to ascertain across the bar what was the running of the vehicle as on the present date and we have been informed by the advocate for the Complainant that the same has cloaked 40868 kilometers. This Forum relies on the decision in the matter of Tata Engineering and Locomotive Company Limited Versus Gajanan Y Mandrekar reported in 1977 AIR (SC) Page 2774 wherein Their Lordships have held as under:
4) Shri F. S. Nariman, learned Senior Counsel appearing for the appellant, contends that the appellant is not so much on the quantification of the damages awarded in this case; rather, they want to vindicate the principle on which the damages are awarded in such type of complaints. According to him, the complaint was laid after eight months from the date of delivery; that too after the vehicle was used to cover a distance of eighteen thousand to eighteen thousand five hundred kilometers; the complaint was laid in August 1992. When the Commissioner appointed gave his report on 10.04.1993 the vehicle had .20/- covered a distance of sixty five thousand kilometers. The State Commission passed the order on 24.9.1994 by which date a further distance of more than another twenty five thousand to thirty thousand kilometers had been run. Under these circumstances, proportionate deduction for use of the vehicle would have been given. We find force in the contention. It is not the case that during the said period the vehicle was kept unused. When the vehicle was being used with the same defects as pointed out, necessarily the purchaser is required to be compensated for not delivering the vehicle in good condition as per the warranty after deduction towards the use of the vehicle. In view of the facts and circumstances, we think that one third of the compensation awarded by the Commission may be deducted towards the user of the vehicle for the period in question. For the rest of the amount, the order of the Commission is confirmed.
59. The vehicle in the present case was purchased on 28.23.2013 for a sum of Rs.3,93,891/-. The complaint was filed on 03.01.2014. This judgment is being pronounced to-day the 16th day of February 2017 and on the present date we have been informed by the advocate for the Complainant that the same has cloaked 40868 kilometers and therefore a deduction of one fifth which is deduction of Rs. 78,778.20 is done. The Opposite Parties are directed to pay the sum of Rs.3,15,113/- and refund the sums paid by the Complainant towards the registration of the vehicle and the road tax of the vehicle along with interest at twelve per cent per annum from 28.03.2013 upto the actual payment of the same and the Complainant shall hand over the vehicle to the Opposite Party No. 1 along with forms duly signed for the transfer of the vehicle. Hence we pass the following Order: O R D E R The complaint is partly allowed. The Opposite Parties are directed to pay a sum of Rs. 3,15,113/- (Rupees three lakhs fifteen thousand one hundred thirteene only) and refund the sums paid by the Complainant towards the registration of the vehicle and the road tax of the vehicle along with interest of 9% on all the above from 28.03.2013 upto the actual payment of the same and the Complainant shall hand over the vehicle to the Opposite Party No.1 21/- alongwith forms duly signed for the transfer of the vehicle. The Opposite Parties to pay a cost of Rs. 10,000/- (Rupees ten thousand only) to the Complainant. (Shri Jayant S. Prabhu) President (Ms. Savita G. Kurtarker) Member (Ms. Cynthia A. Colaco) Member 21/2 It was thr duty of the opposite party no.1 to recall all the i10 vehicles which had been fitted with the 35A steering motor system, on realizing that the same does not operate as a 35A power steering