KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACADU , THIRUVANANTHAPURAM

A.648/2017

JUDGMENT DATED:24/04/2023

( Appeal filed against the order in CC.No. 58/2016, CDRF, Idukki )

PRESENT:

M/s Poomkudy Force,

Poomkudy House, N.H. 47,

Edappally, Kochi- 682024.

(By Adv. George CherianKarippaparambil )

VS

RESPONDENTS:

1. Benny George,

Vaniyakizhakkel House, Muthalakkodam P.O,

Kothukuthi, Thodupuzha, Idukki.

2. The Managing Director, M/s Force Motors Ltd,

Akurdi, Sulekha, Pune- 411035.

(By Adv.Chirayinkil C. P. Bhadrakumar, for 2^nd Respondent)

JUDGMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

The first opposite party in CC.58/2016 of the Consumer Disputes Redressal forum, Idukki( District Forum for short) is the appellant before us. He is aggrieved by the final order dated 30-03-2017 passed by the District forum directing the appellant to replace the fuel injunction pump of the disputed ambulance with a new one, free of cost. An amount of Rs. 25,000/- is awarded as compensation and 3,000/- as costs. The first respondent herein is the complainant and the second respondent is the manufacturer of the vehicle. For the sake of convenience, the parties shall be referred to herein , in accordance with their status before the District Forum.

2. The complaint was filed alleging that an ambulance purchased by the complainant from the first opposite party/appellant was defective. The complainant had purchased an ambulance manufactured by the second opposite party, from the first opposite party who is the authorized dealer of the second opposite party. The vehicle was purchased with the financial support of the Indian bank, Thodupuzha branch. The total amount paid was Rs. 11 ,00,000/-. At the time of taking delivery of the vehicle on 20-11-2015, the first opposite party had made the complainant believe that the same was of high standard and was capable of being used without trouble for a long period. Warranty for 3 years or 3 lakhs kilometres , which ever is earlier , was also offered.

3. However, from the initial days after purchase itself, the vehicle was giving trouble. It was found that the vehicle was not able to pick up speed above 70 kilometers. Though the first opposite party was informed of the said defect , the complainant was told that the vehicle would be trouble free after its first service. While so, on 17-01-2016 the complainant had to take a patient to the Lissie Hospital, Ernakulam. However, the vehicle broke down in the hospital compound itself. At that time, the vehicle had covered only 3,000 kilometres. Even after that, when the vehicle was running above 70 kilometers it would suddenly stop, with smoke coming out of the engine. After examination, the first opposite party told the complainant that the trouble was caused by a defect in the fuel pump. According to them the same could not be replaced but, could be repaired . Though the complainant demanded the replacement of the fuel pump as per the terms of the warranty , they did not agree. They dismantled the fuel pump and took the same for repairs to a local workshop on a motor bike. But, the fuel pump fell on the road, resulting in further damage to it. The staff of the first opposite party refitted the fuel pump after repairs and returned the vehicle to the complainant.

4. On 06-02-2016 when the complainant was transporting a patient who was suffering from Coronory heart disease from Thodupuzha St. Mary’s Hospital to Kottayam Medical College Hospital, the vehicle again broke down when they reached Perumattom near Moolamattom. When the complainant tried to start the vehicle he noted that diesel was flowing out from the pump. The relatives of the patient brutally manhandled the complainant and he had to suffer both insult and injury. When the first opposite party was informed, he advised to the complainant to retain the vehicle at the residence. Again the fuel pump was dismantled and taken away for repairs. After four days the same was fitted back on the vehicle, informing the complainant that the defects were rectified.

5. According to the complainant the vehicle was emitting excess smoke from the engine and was not able to pick up speed. Though the first opposite party had been informed of the complaint, nobody turned up to cure the defects. As a result the complainant was not in a position to use the vehicle for a period of 3 months. The vehicle was in work shop for more than 17 days. Consequently he was also not able to remit any amount towards his bank loan, thereby causing damage the tune of Rs.50,000/-. In the above circumstances, he approached the District Forum by filing the complaint alleging deficiency in service, claiming compensation and other reliefs.

6. On receipt of notice the opposite parties entered appearance and filed separate versions. According to the first opposite party, the complainant was not a person coming within the definition of Consumer Protection Act 1986 ( herein after referred as the Act for short) since the vehicle was being used for commercial purpose. There was no deficiency in service or negligence on their part. The complainant had reported that the battery of the vehicle was not charging because of loose fan belt. On 17-01-2016 the first opposite party had sent their technicians and solved the problem. On 20-01-2016 the complainant had reported complaints regarding steering sound and entrusted the vehicle to the first opposite party. The said defect was also cured to the satisfaction of the complainant, who had endorsed his satisfaction in the job card. . Hence no deficiency could be alleged against the first opposite party.

7. In their version the second opposite party contended that as per the terms of the warranty, the replacement of the items are the responsibility of the manufacturer. In the present case the injection pump is manufactured by the Bosch company and therefore the warranty is to be handled by them. The said company is also necessary to be made a party to the complaint. The details of the warranty and the terms and conditions thereof are given in the owner’s manual and were also informed to the complainant at the time of taking delivery of the vehicle. The complainant was told that the white smoke was the result of plying the vehicle at high speed along hilly areas and rough areas without sufficient fuel in the tank. That would cause starvation of lubrication to the internal components of the rotary fuel injection pump. According to them there was no manufacturing defect in the said vehicle or any of its components. As per available records it is clear that the warranty benefits were provided to the complainant as and when complaints were reported to the dealership.

8. With respect to the alleged incident of the fuel pump falling on the road, the contention was that the same was not caused intentionally. The pump also did not suffer any damage. The pump was inspected and found to be working perfectly, which was intimated to the complainant also. On the above ground, both the opposite parties contended that there was no deficiency in service on their part or manufacturing defect in the vehicle. The District forum tried the complaint on the above pleadings. Both sides let in evidence . The complainant examined himself as Pw1. Exbt. P1 to P4 documents were marked on his side. Exbt.C1 commission report of the expert was marked as court exhibit . The opposite parties examined Dw1 as a witness and marked Exbt. R1 to R6 documents on their side.

9. After the close of evidence , both the parties were heard by the District Commission and as per the order under appeal the complaint has been allowed. The first opposite party has been directed to replace the fuel injection pump of the complainant’s ambulance with a new one free of cost and an amount of Rs. 25,000/- is awarded as compensation for the inconvenience and mental agony caused to him, together with an amount of Rs. 3,000/- as costs. This appeal is filed by the first opposite party against the said order.

10. According to the counsel for the appellant the District Forum has failed to consider the contentions of the appellant properly. The warranty for the vehicle as well as spare parts are given by the manufacturer who is second respondent herein. Therefore, even assuming that the fuel injection pump was defective , direction to replace the same should have been given to the second respondent. There is no justification for absolving the manufacturer and fastening the liability only on the appellant. The appellant had at all times been prompt in attending to the repairs of the vehicle, whenever the same was brought for repairs. The vehicle does not suffer from any manufacturing defect and is being used by the first respondent even now. The fuel injection pump is manufactured by a company by name Bosch and therefore, they ought to have been made a party to the complainant. The District Forum has omitted to note that the vehicle had covered more than 7,000/- kilometers when the trouble arose . Therefore it is clear that the first respondent had been using the vehicle continuously. The District Forum has failed to take note of the fact that Exbt. C1 report of the expert has found the exhaust to be normal when he tested it after the vehicle attained normal temperature. It is therefore clear that the fuel had got completely burnt. Therefore there was nothing wrong with the fuel injunction pump also. The District Forum also ought to have found that there was no deficiency in service on the part of the appellant. The counsel therefore sought for setting aside the order of the District Commission by allowing the appeal.

11. Though the respondents have been served with notice, there is no appearance for them. Therefore, we have examined to the lower court records and considered the contentions of the appellant, carefully.

12. The disputed vehicle in this case is an ambulance purchased by the first respondent by availing bank finance for the purpose of earning a livelihood for himself. However, the allegation is that the vehicle had been giving trouble from the initial days of its purchase itself . The vehicle was found to be deficient in pick up and was not picking up speed above 70 kilometers. The complainant was assured that the defect would be rectified with the first service. But, on 17-01-2016 there was a breakdown at Lissie hospital , Ernakulam and the fault was identified as , loose fan belt. Later on, the defect of the fuel pump was also detected . Though the defect had arisen during the warranty period the spare parts were not replaced. As rightly found the District Commission, the appellant only repaired the vehicle . There was another breakdown on 06-02-2016. The job cards produced show that, the vehicle had been taken for repairs on a number of occasions . Exbt. R3 shows that there was a complaint of lack of pulling power also. Exbt. R4 bill of 16-03-2016 shows replacement of parts worth more than Rs. 4,500/-. Therefore, the evidence on record clearly shows that the vehicle was giving trouble to its owner though it was brand new. The reasonable expectation of the owner of a vehicle that it would work trouble free at least for a minimum period after its purchase cannot be fault with. Any spare part of the vehicle that gives trouble during the initial warranty period is also expected to be replaced with a new and trouble free spare part by the manufacturer . In this case admittedly, the diesel fuel pump that was giving trouble was only repaired. Consequently, the said spare part continued to cause trouble and hardships to the complainant. According to him, he was even manhandled , when the vehicle broke down while conveying a person with heart disease to the Medical College Hospital. Therefore, we have no doubt in the light of the above that, the complainant was entitled to get appropriate compensation for his mental agoney and torture.

13. The contention streneously put forward by the counsel for the appellant is that the District Forum erred in making the appellant alone liable to pay the compensation though the manufacturer was also on the party array. However, the fact remains that the vehicle was subject to a warranty and that the troubles complained of had arisen during the warranty period. The appellant as the dealer of the vehicle was the person through whom the benefits of the warranty were to be made available to the customer. The appellant was the one who has the duty to give effect to the warranty conditions and to provide after sales service to customers like the complainant. Instead of replacing the defective spare parts with new ones, the appellant tried to save the situation by repairing the spare parts. However such repairs did not solve the problem, as the subsequent events have shown . Therefore, the deficiency in the implementation of the warranty conditions has occurred on the part of the appellant. Had the appellant replaced the defective spare part on the first occasion itself, the subsequent trouble caused to the complainant could have been avoided. Therefore, we are not satisfied that there is any illegality in casting the liability to replace the spare part and to pay compensation to the complainant, on the appellant.

14. Another contention put forward is that, going by Exbt. C1 report, when the exhaust was tested after the vehicle attained normal running temperature, it was found to be normal. However, we notice that the final conclusion arrived at by the expert was that the fuel pump was not working satisfactorily. The attempt of the counsel for the appellant is to take out a particular sentence in the report and to interpret the same out of context, to persuade us to arrive at a conclusion different from that of the expert commissioner. The expert commissioner who was aware of all the parameters, had taken note of the various aspects and the data gathered by him from examining the vehicle and driving the same, has arrived at the firm conclusion that the fuel pump was not working satisfactorily. Therefore, we are not prepared to accept contention of the learned counsel for the appellant that there was nothing wrong with the fuel pump.

15. We find that the relief granted by the District Forum is reasonable and justified , in the facts and circumstances of the case. The compensation and costs awarded are also only reasonable and do not call for any interference in appeal.

For the foregoing reasons we find no infirmity in the order of the District Commission under appeal. The said order is therefore confirmed . This appeal fails and is accordingly dismissed. No costs.

JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

K.R.RADHA KRISHNAN: MEMBER

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