STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA `

AT HYDERABAD

                                                            FA 719 of 2014

                                                                        Against

                        C.C.No.462 of 2013, DISTRICT FORUM III, HYDERABAD

Between :

1. M/S. Ashok Leyland Limited

3^rd floor Dhraupathi chambers

31, Sarojini Devi Road

Next to ITC Agri Marketing office

Secunderabad – 500 003.

2. G.M.Sales, Ashok Leyland Ltd

Chennai (Corporate office) No.1

Sardar Patel road, Guindy, Chennai

Tamil Nadu – 600 032.

Both appellants are represented by its authorised signatory

T. Sivanandan, S/o M.N. Thangavai aged 47 years

Occ: Area Service Manager, R/o Hyderabad

3. Automotive Manufacturers Pvt. Ltd

Plot No. 66, Block No. 613 (part), 614, 715 and 717

Transport Node Aslali, Ahmadabad – 382427

Represented by its Vice President

T.R. Ganesh Aiyer, S/o Late Sri TKR Aiyer

Aged 52 years, Occ : Service, R/o Secunderabad

C/o M/s. Automotive Manufacturers Pvt. Ltd

8571, Rastrapathi road, Secunderabad …               Appellants/Ops No.1, 2 and 4

And

1. Sri Seelan Srinivasa Chenchi Reddy

S/o Sri Late Seelam Rami Reddy

Aged : 50 years, Occ : Business

R/o H.No. 4-32-1/55, Saptagiri colony

Kukatpally, Hyderabad – 500 072               …Respondent/complainant

2. Integrated Enterprises (P) Ltd

1^st floor, Kences Towers,

No.1, Ramakrishna street, North Usman road,

Chennai ( Madras) – 600017, Tamilnadu                

(Respondent No. 1 not necessary party)               …Respondent/OP No.3

Counsel for the Appellants                  :           M/s. Sunil B. Ganu

Counsel for the Respondents             :           Sri G.V.R.V. Reddy for R-1

                                                                        R2- not necessary party

Coram            :

Hon’ble Sri Justice B.N. Rao Nalla             …        President

And

Sri Patil Vithal Rao                           ..          Member

Wednesday, the Fourteenth Day of June

Two Thousand Seventeen

Oral order :    ( Per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President )

                                                            *****

1. This is an appeal filed Under Section 15 of the Consumer Protection Act, 1986 by the appellants/opposite parties, aggrieved by the orders dated 17.11.2014 made in CC 462 of 2013 by the District Forum III, Warangal directing the opposite parties 1 to 4 to pay a sum of Rs.2,00,000/- towards punitive damages, to pay Rs.1,00,000/- towards compensation and costs of Rs.2,000/-.
2. For the sake of convenience, the parties are described as arrayed in the complaint before the Forum below.
3. The case of the 1^st respondent/complainant, in brief, is that he purchased one tipper              (Vehicle) bearing No. 1616 XL 142. WB FBT chassis No. MB 1G3DTC9CPNG 1579, Engine No. CNPZ113879 on 16.04.2013 and it was delivered at Ahmadabad.  The complainant had paid the amount for 2013 Model but the first opposite party had delivered November, 2012 Model, Due to the said transaction the complainant had lost a sum of Rs.50,000/- approximately because of delivery of downgrade model.  He sent e-mail dated 19.,04.2013 but there was no response from the opposite parties  nor adjusted the amount. The tipper gave trouble within 15 days of the purchase and it was replaced with a new one but it is also defective. OP. 4 confirmed that it is a manufacturing defect.  The complainant gave complaint to their service centre.. On repeated demands, the opposite parties had allotted one Aslali workshop people for rectifying the problem on 06.05.2013. Without rectifying the problem the vehicle was delivered.  On the next day, he sent e-mail on 18.05.2013 to the opposite parties but there was no response. Due to which, he has totally lost business.  The complainant has again handed over the vehicle for rectifying the same problem on 23.05.2013 vide job card no. 907. When the complainant approached the opposite parties, there was no response from them. He got issued legal notice dated 31.5.2013 but there was no reply.  Hence the complaint to direct the opposite parties to replace the defective vehicle with a new one , to pay Rs.2,00,000/- with interest @ 24% pa  from the date of purchase to realization towards idle charges for the period from May 1^st to 30^th June, to pay an amount of Rs.50,000/- towards difference of downgrade model, to pay a sum of Rs.1,00,000/- to the complainant towards the damages and mental agony and to pay an amount of Rs.1,000/- towards legal notice charges and costs.
4.  The opposite parties 1 and 2 filed their written version contending that delivery of 2012 model instead of 2013 model is false.  The vehicle was put to commercial use by the complainant after 19.4.2013. it is not explained as to how  the complainant had lost Rs.50,000/- due to delivery of alleged down grade model.  On the complaint dated 06.05.2013, the opposite parties had carried out necessary repairs to the subject tipper under warranty free of charge and returned the said vehicle to the complainant to his due satisfaction.  The vehicle was put to improper use. The vehicle was given to the opposite parties on 23.05.2013 when they have inspected and found that the sub frame was damage due to improper use as such with the consent of the complainant, the sub frame was replaced with new one and the complainant has taken back his vehicle after carrying out necessary checks and after being satisfied with its working condition. There are no manufacturing defects in the vehicle.  No independent expert opinion was placed to substantiate that it is a manufacturing defect. Hence the question of replacing it with new one does not arise.  The vehicle was handed over to OP no. 4 by the complainant on 6.5.2012 for two days and on 23.5.2012 .  The complainant has to explain as to how he is entitled to Rs.2,00,000/- towards idle charges from 01.05.2013 to 30.06.2013  and he is also not entitled for Rs.1,00,000/- towards damages for mental agony and physical loss. The vehicle is fully roadworthy and they are not liable for keeping it idle. The complainant is not entitled to claim any amount. Hence prayed to dismiss the complaint.
5. The opposite party no. 4 filed its written version, with similar averments which are contained in the written version of opposite party no. 1 and 2.
6. The opposite party no.3 did not contest the matter.

7. During the course of enquiry before the District Forum, in order to prove his case, the respondent/complainant filed his evidence affidavit and got marked Ex. A1 to A13   and on behalf of the opposite parties 1 and 2  Ex.B1 has been marked. Written arguments of complainant and opposite party No. 1, 2 and 4 are filed. Opposite party no.3 has not contested the complaint.

8. The District Forum, after considering the material available on record, partly allowed the complaint directing the opposite parties 1 to 4  jointly and severally to pay a sum of Rs.2,00,000/- towards punitive damages, Rs.1,00,000/- towards compensation and Rs.2,000/- towards costs.
9. Aggrieved by the said order, the appellants/opposite parties preferred this appeal on the ground that the (I)  District Forum ought to have seen that the Ex.B-1 invoice shows that the invoice amount is Rs.15,91,728/- and not Rs.16,91,728/-,  in addition to the above, the Forum has treated Ex.A3 Gate pass as the second invoice.   Therefore, it is apparent that the Forum has proceeded on a totally wrong premise and footing thereby arriving at an erroneous conclusion and consequent erroneous finding. (ii) The District Forum ought to have seen that the complainant had not filed any document to substantiate that he had lost a sum of Rs.50,000/- in view of the sale of old model tipper by the opposite parties. (iii)          The District Forum erred in coming to a conclusion that the complainant is a consumer as contemplated U/s. 2(1)(d) of the C. P. Act, (iv) The District Forum having specifically held that there is no manufacturing defect in the tipper and that there was no problem with the same,  could not have awarded idle charges of Rs. 2 lakhs, especially,  when the complainant had failed to produce any evidence  before the Forum to show that the tipper was lying idle from 1.5.2013 to 30.06.2013., (v)        The District Forum has committed grave error in arriving at a conclusion  that the opposite parties have indulged into  unfair trade practice, (vi)    The District Forum committed a gross error in granting a sum of Rs.1 lakh to the complainant as damages for mental agony.   Hence prayed to allow the appeal and set aside the orders of the District Forum.
10. Counsel for the respondent/complainant and the counsel for the appellants/Ops 1,3 and 4 had advanced their arguments reiterating their respective contents as stated in their pleading besides filing written arguments. Heard both sides.
11. The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief?
12.   (i)  The first contention of the appellants is that the   District Forum ought to have seen that the Ex.B-1 invoice shows that the invoice amount is Rs.15,91,728/- and not Rs.16,91,728/-,  in addition to the above, the Forum has treated Ex.A3 Gate pass as the second invoice.

(ii )       Counsel for the 1^st respondent/complainant argued that he purchased one Tipper for his lively hood manufactured by Ashok Leyland bearing Model No. 1616 XL 142  WB FBT  ON 16.04.2013 for a sum of  Rs.16,00,879/-. The complainant paid the money for 2013 model. But the respondent company delivered 2012 model tipper and hence he claimed Rs.50,000/- towards the difference  of downgrade model.

(iii)   Counsel for the appellants argued that the first respondent/complainant did not produce any evidence to show that the first respondent/complainant sustained loss at Rs.50,000/-.

(iv)    Ex.A-1 to A3 documents reveal that the model sold to the first respondent/ complainant was of 2012 make and not 2013 make. But the first respondent/complainant did not explain and no documentary proof was filed as to how he sustained loss at Rs.50,000/-.

(v)  Hence there is force in the contention of the appellants.

13. (i)   The further contention of the appellants is that whether the complainant is  a consumer ?

    (ii )   the complainant contended that he purchased the vehicle for eking his livelihood and that there is no contradictory version by the appellants/opposite parties that it was used for commercial purpose, hence the complainant is a consumer U/s. 2(1)(d) of the C.P.Act.

14.       (i)         The further contention of the appellants is that complainant had failed to produce   evidence to show that the tipper was lying idle from 1.5.2013 to 30.06.2013 and hence he is not entitled to get Rs.2 lakhs towards idle charges.

            (ii )           The first respondent/complainant failed to prove that the vehicle is having manufacturing defect.  There is also no evidence on record to show that the vehicle was lying idle from 1.5.2013 to 30.06.2013 in the premises of the OP No.4.  Counsel for the 3^rd appellant/OP No.4 contended that the Tipper was handed over to them by the complainant on 6.5.2012 for two days and on 23.05.2012 thereafter.   There is no evidence on record to show that the vehicle was in the custody of the appellants/opposite parties during the period from 1.5.2013 to 30.06.2013 and that  he sustained loss at Rs.2,00,000/- towards idle charges.

            (iii)       Hence there is force in the contention.

15.       After considering the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellants/opposite parties 1,3 and 4  and the respondent/ complainant, this Commission is of the view that the respondent/complainant failed to prove that the vehicle was kept with the appellants/opposite parties for the period from 1.5.2013 to 30.06.2013 and he sustained loss to a tune of Rs.2,00,000/- and that there is unfair trade practice on the part of the appellants and the order of the District Forum is liable to be set aside. This Commission answered Point No1 accordingly in favour of the appellants/Ops 1, 3 and 4  and against the respondent/complainant.

16.       In the result, the appeal is allowed setting aside the impugned order and consequently the complaint is dismissed. There shall be no order as to costs.

                                                                                                PRESIDENT               MEMBER

                                                                                                            DATED : 14.06.2017.