IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 30th day of August, 2018
Filed on 22.06.2016
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob (Member)
in
CC/No.203/2016
Between
Complainant:- Opposite party:-
Sri. Rajesh.P.M 1. Ashok Leyland
S/oMukundan Light Vehicles
Pullikkal House No.1 Sardar Patel Road
Parayakadu.P.o, Guindy, Chennai – 600 032
Alappuzha
(Adv.Dileep Rahman) 2. Ashok Leyland
No.23/500 E, Kallupurackal Centre
Edappally, Pookkattupadi Road
Changampuzha Nagar.P.O
Kochi- 682033
(OP 1&2 Adv. Menon & Pai, Ekm)
3. E.V.M. Light commercial Motors Old Madhavan Inc. Valiyakalavoor
Alappuzha-688522
4. The Authorized Signatory E.V.M. Light Commercial Motor Near IOC Pump, Alumoodu Junction
Kaniyapuram.P.o, Trivandrum-695
(Adv. Ajith.S. Nair)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This is a complaint filed U/S 12 of the Consumer Protection Act the averments on the complaint in short is as follows:-
On 30/09/2015 complainant purchased one Ashok Leyland DOST from the opposite party by paying Rs. 5,00,225/- for the using consumer for earning lively hood of the complainant. However after 2 months of the purchase of the vehicle it became defective in the sensor and gear system and the matter was reported to the 3rd opposite party and the defect was more or less cured. Subsequently the engine parts, chassis, housing and all the connected parts thereof and bottom of the cabin are seen rusted and the complainant reported the same to 3rd opposite party. But there was no response and finally the complainant filed a complaint before the 3rd opposite party who issued a reply instead to rectifying the defects by properly finding out of the reasons for the defects and also by violating the warranty terms and conditions of the warranty issued by the opposite parties. The allegation made by the 3rd opposite party in the reply notice that the rust formation of the vehicle was due to external aspects like salt water entry is not true and made without any basis. The complainant had brought the vehicle before 3rd opposite party on two occasions for service and the next service was 30/06/2016. According to the complainant the defects caused to the vehicle was due to the substandard quality and from manufacturing defects of the vehicle manufactured by opposite party 1 &2. Hence the opposite parties are liable to replace the vehicle as the above said defects are major in nature and the same cannot be rectified in the repair work. The complainant could not ply the vehicle due to the above said defects as the rusting day by day cause’s total annihilation of the vehicle. It is submitted that the complainant has been suffering a lot to meet both ends together and for the repayment of the loan amount. The complainant suffered mental agony, physical strain, and financial constraints and loss due to the above said defects of the vehicle. Hence all of the opposite parties are jointly and severally liable to replace the vehicle and compensate the complainant.
2. The opposite party 1 and 2 filed joint written version and 4th opposite party filed separate written version. The main conditions raised in the above written versions are more or less same which are as follows:-
Complaint is not maintainable either in law or on facts. As the complainant had purchased a vehicle for commercial purpose the complainant would not come within the definition of consumer under the Consumer Protection Act. 1986. Hence the complainant is liable to be dismissed. The vehicle in question is a commercial vehicle. Hence the CDRF is not having jurisdiction. However by suppressing and concealing material facts the complainant has approached this forum with un cleaned hands and with ulterior motive. There is no negligence and deficiency in service on the part of the opposite party. However the opposite parties would admit that the complainant had purchased the vehicle by name DOST manufactured by 1st opposite party through its authorized dealer the 3rd opposite party. The complainant purchased the vehicle as he was fully satisfied with the vehicle. The complainant has produced the vehicle for service and it was noticed that there were some rust formation in the vehicle and on inspection it is found that it was due to salt water entry into the vehicle. The complainant was informed about the same and requested to take appropriate precautionary measures. However the complainant has not taken any measures as informed. The complainant is using the vehicle even now and there is no manufacturing defect nor does any defect the materials used in manufacturing or workmanship. The rust formation was solely due to the reason of entry of salt water into the vehicle. The complainant has purchased the vehicle from the opposite party for livelihood is not correct and it is denied. The complainant has alleged some malfunctioning defects in the vehicle and the same has been inspected and serviced by the opposite parties. The complainant has fully satisfied with the performance of the vehicle at the time of taking the vehicle after servicing. The rusting noted was due to external reasons and the same is not covered under the warranty, the complainant was duly informed about the position and advised the corrective measures. The complainant filed a complaint and it was duly replied. There is no misrepresentation or illegality in the reply given by the opposite party. The allegations of the complainant are only fallacious without any proof. It is only common knowledge that the only part which has been contacted with the salty water will be rusting. The allegation of sub standard quality of the product is not correct and it is denied. There is no defect in the vehicle due to usage of sub standard quality materials. The allegation is only the imagination of the complainant to escape from his responsibility and liability. The complainant is not entitled for any replacement of the parts as claimed by him. According to the opposite party, the complainant is using the vehicle even now. The complainant has not stated the details of the kilometers covered by the vehicle in the complaint conveniently to mislead the Hon’ble Forum with respect to the usage of the vehicle. The allegation of mental agony, physical strain, financial constrains etc. are absolutely baseless and the same are denied. The complainant is not entitled for any replacement or compensation as claimed.
3. In the light of the above pleadings the points for consideration are :-
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of the opposite
parties?
3. Whether the complainant is entitled to get the Asokleyland Dost replaced
with new one or get back present market value of the vehicle.
4. Whether the complainant is entitled to get compensation and cost as
claimed by the complainant.
5. Relief and Cost?
4. Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.A1 to A9 documents. Evidence on the side of the opposite party consists of Ext.B1 to B3 documents.
5. Though sufficiency opportunity was granted both counsel have not turned up and advanced any oral argument. But both filed notes of argument.
6. Points No.1:-
One of the main contentions of the opposite parties is that the complainant is not a consumer and hence the complaint is not maintainable before the consumer Forum. Admittedly Asok leyland is a small goods vehicle. The complainant has averred in the complaint as well as sworn the proof affidavit that he purchased the vehicle for earning his livelihood. PW1 has also sworn that he is having driving license to drive the said vehicle and he has been engaged in transporting building materials such as cement and due to the income received by transporting cement etc.. he has been maintaining his family. The above pleadings RW1 evidence of PW1 remains unchallenged in spite of lengthy cross examination. In view of the above material on record it is clear that complainant is a consumer as per the definition of the Consumer Protection Act. The point answered accordingly.
7. Points No. 2 to 4:- For avoiding repetition of discussion of materials these 3 points are considered together. Specific case of the complainant is that after 2 months of purchase the vehicle become defective in the sensor and gear system and it was got repaired through 3rd opposite party. But subsequently the engine parts, chase, Housing and all connected parts thereof and the bottom of the cabin are seen rusted. The same was reported to the 3rd opposite party but there was no proper response from the 3rd opposite party hence he filed a complaint but the 3rd opposite party instead to rectifying the defects has sent a reply stating that on inspection it was found that some rust formation of external aspects are due to salt water entry. The same contention was repeated by the opposite party in the written version also. However RW1 would admit when he was in the witness box that the vehicle has affected with rust. RW1 would further admit that the rusted vehicle cannot be used further as the same would not pass in the vehicle test, if there is rusting. The above evidence of RW1 would indicate that the allegation of the complainant that the vehicle has got rusted and hence the same cannot be used by him. It’s further to be pointed out the admission of RW1 that no complaint has been received from anybody else alleging rusting from the sea shores places. Hence it is clear that there is no chance of any parts of the vehicle getting rusted even if the vehicle was used in seashores area like Alappuzha.
According to RW1 the rusting of the vehicle was due to salt sedimentation and the same was caused due the vehicle exposed to sea or due to the entry of salt water and hence the same cannot be described as a manufacturing defect. However the opposite party has not adduced any reliable materials to support the said contention. The learned counsel for the opposite party would suggest when PW1was facing cross examination that the vehicle has become rusted as complainant has been transporting sand cement etc containing salt particles. but PW1 has totally denied the above suggestion and he deposed that he never transported sand containing salt particles. RW1 would further admit that rusting has not been rubbed and sent for laboratory test to know whether rusting of the vehicle was due to salt sedimentation or not. It is clear from the material valuable on record there is no chance of getting any part of the vehicle rusted due to the transportation of any article having salt content. In view of the materials available on record it is clear that the contentions opposite parties that major parts of the vehicle was rusted on account of salt sedimentation due to the transportation articles containing salt or due to plying the vehicle near sea shore is having no merit at all. It is further to be pointed out that Ext.C1 report of the expert and photo graphs to the rule out of the above contention of the opposite parties and would probabllise the case of the complainant. In C1 report it is pointed by the expert that the rusting in between the parts of the vehicle and the under coating which is not at all caused by any external usage of the vehicle by the complainant as alleged by the opposite parties.
The learned counsel for Opposite party 1 and 2 by relying on a dictucting laid down in Satnam Singh Vs. Mahindra & Mahindra Ltd and Ext.B2 warrantee would content in the notes of arguments that even in case of any manufacturing defect the opposite parties are only liable to replace the defective part and not he entire vehicle as claimed by the complainant. In view of the facts and circumstance of this particular case I find no merit in the above contention. It is also clear from the available materials that rusting affected with very important parts of the vehicle and hence the complainant is not able to subject the vehicle for vehicle test. It is further to be pointed out the admission f PW1 that there is no rusting in the body part of the vehicle where in goods is transported. Hence it is clear that the vehicle got rusted not because of the transportation of any particular article. In view of valuable materials discussed above we have no hesitation to hold that the vehicle got rusted due to the use of the vehicle in sea shore or due, to the transport specified materials or due to any defective maintenance of the vehicle as alleged by the opposite parties but only due to manufacturing defect as claimed by the complainant. Hence it is clear that there deficiency in service and unfair trade practice on the side of the opposite party as alleged in the complaint.
8. it is clear from the available materials that the complainant has purchased the vehicle to earn his lively hood. It is brought out in evidence that vehicle is now kept . Hence the case of the complainant that he has sustained much mental agony apart from financial loss. The defects has been admittedly found out during warranty period and as defect cannot be cured and vehicle cannot be used the complainant is entitled to get the vehicle replaced or get the value of the vehicle returned and also get compensation and costs. The points answered in favour of the complainant.
In the result the complaint stands allowed, in the following terms.
- Opposite parties No.1 to 4 are directed to replace the defective Asokleyland DOST vehicle belongs to the complainant with a brand new and defect free one to or pay the present market value of the said vehicle to the complainant.
- Opposite parties 1 to 4 are also directed to pay compensation to the tune of Rs. 50,000/-(Rupees Fifty thousand only) to the complainant and also pay Rs. 10,000/-(Rupees Ten thousand only) towards cost of proceedings to the complainant.
- The complainant is directed produce the vehicle at the show room of Opposite party No.3 within 15 days from today and in such event, Opposite parties 1 to 4 are directed to replace a brand new and defect free Asok leyland DOST vehicle or pay present market value of the vehicle and compensation and costs as ordered above within 30 days from the date of receipt of a copy of this order or after two week of the surrender of the vehicle failing which the complainant is entitled to realize Rs. 5,60,225/- (Rupees Five lakh sixty thousand two hundred and twenty five only) the being the market value of the Asokleyland DOST vehicle purchased by the complainant with interest at the rate of 12% per annum from the date of purchase of the vehicle till realization from the opposite parties 1 to 4 and from their assets.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 30th day of August, 2018.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/- Smt. Sheela Jacob (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Rajesh.P.M (Witness)
PW2 - Dileep.M(Witness)
Ext.A1 - Special Power of Attorney
Ext.A2 - Payment receipt
Ext.A3 - letter
Ext.A4 - Letter dtd 10/5/2016
Ext.A5 - Advocate notice
Ext.A6 - Acknowledgment card
Ext.A7 - Reply notice dtd. 28/5/2016
Ext.A8 - Copy of Driving license
Ext.A9 - Owners Mannual
Evidence of the opposite parties :-
RW1 - Asir Jackson(Witness)
Ext.B1to B3 - Subject to objection
Ext.C1 - Commission report
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Br/-
Compared by:-
