DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

FATEHGARH SAHIB

Consumer Complaint No.       :  59 of 2017

Date of Institution                             :    22.09.2017

Date of Decision                     :  11.03.2019

Kartar Singh son of Babu Singh, Resident of House No.33, Sector 19-B, Vishavkarma Nagar, MandiGobindgarh, Tehsil Amloh, District Fatehgarh Sahib.

                                                                             …Complainant

Versus

1. M/s Grover Motors Private Limited, Authorized Dealer of Ashok Leyland, Registered Office 274, Industrial Area, Focal Point Road, Opposite Aarti Steel, Ludhiana (Phone No. 0161-5083005) through its Branch Manager Sh.Kulwant Singh.
2. Mr.Kulwinder Singh of M/s Grover Motors Limited C/o Baba Nanak Streets, Harchand Mill Road MandiGobindgarh.
3. M/s Ashok Leyland, No.1, Sardar Patel Road, Guindy – Channai – 600032 through its Manager/Incharge.

         …Opposite Parties

                             Complaint under Section 12 to 14 of Consumer Protection Act 1986

QUORUM:

SH.KULJIT SINGH, PRESIDENT

SH.INDERJIT, MEMBER

CAPT.YUVINDER SINGH MATTA, MEMBER

Present :      Sh. Sanjeev Chopra, Adv. Counsel for complainant.

                   Sh.T.S. Dhiman, Adv. Counsel for OPs.

ORDER

Kuljit Singh, President

1. ComplainantKartar Singh has filed this complaint against the Opposite parties (hereinafter referred to as “O.P.s”) under Section 12 to 14 the Consumer Protection Act. The brief facts of the complaint are as under:    The complainant is running his transport business at Mandi Gobindgarh and plying the vehicle from MandiGobindgarh to other destinations as a private carrier for his own employment purpose to serve his family and earn livelihood. O.P.No.1operates as agent from MandiGobindgarh for OP No.1 & 3 to contact prospective customers.  OPs are dealing in multipurpose commercial vehicle and authorized dealer of Ashok Leyland – OP-3, who is manufacturer and suppliers or commercial vehicles.  Complainant purchased a commercial vehicle, having class HGB, Chassis No.MBIKACFDIHPGX 1855 and Engine No.HGPZ 104162 having 180 H.P., 6^th cylinders and unlade weight 7300 Kgs with other specification made in the invoice and sale certificate.  At the time of sale of vehicle the OPs assured that the vehicle is free from any fault/defect including manufacturing defect.  The OPs also assured that the vehicle has been equipped with JK Tyres which have 1,50,000 K.M. running capacity without any torn and worn or five years warranty on tyres, whichever is earlier.  The specimen book supplied by the O.P. also shows the same according to the O.P.s.  As the complainant is not conversant with the English Language, he did go through the said booklet, and believed the version of O.P.s.  On believing the representation and assurance of O.P.s, complainant purchased said vehicle, bearing registration No.PB23T-4211, for an amount of Rs.20,90,700/-.  The vehicle was delivered to complainant on 03.02.2017 and become roadworthy on 11.03.2017.  The complainant estranged to see that tyres of vehicle are diminishing its capacity day by day and the complainant brought the matter to notice OP No.1&2, but in vain.  Each time they would say that tyres are of either low quality or there is a defect in the chassis, but they could not remove the same till date.  All tyres, twelve in number, have meted out its full capacity while running of 37000 KM on road including KM mileage to and fro to works of OP for getting the defect removed.  Since, 05.08.2017, complainant many times informed OPs to remove defect in the chassis as they say or change the same itself with a new one and also change the tyres but all in vain.Now vehicle is standing with OPs at Ludhiana since 29.08.2017.  He also got vehicle financed from Fulltron India Credit Company Limited and paying installments and interest amounting to Rs.50,000/- P.M. and he is unable to pay the same for last three months, from the earnings of vehicle as he could not load required load upon the vehicle due to weakness.  A pair of tyres costs Rs.42,000/- approximately including taxes and fitting charges and the vehicle in question has six pairs of tyres, and in case he wants to ply the vehicle, he has to change the same at the of Rs.2,52,000/- with a loss of 1,13,000/- mileage running and earning capacity which comes to tune of Rs.16,00,000/- and till date he suffered the loss of Rs.4,00,000/- excluding time taken by OPs to remove defect and Rs.6,00,000/- excluding mental and physical agony of complainant.  OPs also disclosed that there is a manufacturing defect in chassis, then it cannot be removed and the chassis has to be changed with new one then complainant suffered loss of Rs.10,000/- per day for non plying vehicle.  He also alleged that he also spend huge amount of Rs.1,15,000/- on getting vehicle registration, one year insurance and also spent Rs.3,80,000/- on installation of wooden body.  Hence, this complaint for giving directions to the OPs to pay Rs.8,00,000/- as damages for losses suffered and Rs.10,000/- per day (i.e. 3,00,000/- P.M. the earning capacity of vehicle) till date of delivery of vehicle to complainant from filing of this complaint, till its delivery after removing defect and exchange of new tyres or in the alternative change the chassis of vehicle with new one and also directed to pay all expenses to make vehicle road worthy.
2. The complaint is contested by the OPs No.1&2, who filed joint written reply. In reply to complaint answering OPs raised certain preliminary objections, inter alia that complaint is not maintainable.  Complainant purchased truck in question for commercial use and said vehicle belongs to commercial category, as such, this Forum has got no jurisdiction to entertain and decide the complaint. Complainant has concealed true and material facts and has not come to this Forum with clean hands.  Complainant is estopped by his own act and conducts. Complaint is false, frivolous and vexatious.  Complainant has no locus standi.  Complaint is an abuse of misuse of process of law. On merits, it is admitted that OP No.1&2 are sister concerns.  Purchase of vehicle is admitted.  Answering OPs never gave any alleged assurance of 1,50,000/- KMs running capacity without any torn and worn or five year warranty on tyres whichever is earlier as alleged. It is admitted that vehicle was delivered to complainant on 03.02.2017.  The tyres of vehicle in question are of very superior and good quality and there is no manufacturing defects in the chassis of vehicle.  It is stated that all tyres of vehicle in question are still having 50% to 60% remaining running capacity as per report given by JK Tyre Company.  The complainant used to put overload material on truck in question by ignoring specifications given by answering OPs. Complainant failed to conduct the wheel alignment as per specifications given by answering OPs and complainant got conducted the wheel alignment only two times since purchase of vehicle and as such complainant violated the specification of answering OPs.  On request of complainant, the answering Ops conducted wheel alignment free of costs to satisfy him and the goodwill of answering OPs but complainant is adamant type of person and raised false dispute to extort easy money from answering OPs.  There is no need to change the chassis or tyres of vehicle in question.  The vehicle is in very good running conditions, without any fault in it.   Complainant has left the vehicle with OPs at Ludhiana without any reason and without consent of OPs.  OPs many times requested the complainant to take the vehicle but complainant intentionally did not take vehicle.  There is no fault on behalf of OPs. This complaint has been filed by complainant on fabricated false and concocted allegations to extort huge amount from OPs. There is no deficiency in service on the part of the OPs. After denying the other averments made in the complaint, the OPs prayed for dismissal of the complaint.
3. OP No.3 has filed separate written statement, taking preliminary objection, it is stated that complaint is neither maintainable in law nor on facts.  Complainant has preferred this vexatious complaint with sole intention of causing hardship of OP-3 and thereby unlawfully out of the same.  The complainant has purchased the truck in question for commercial use and said vehicle belongs to commercial category of vehicles.  This Forum has got no jurisdiction.  Purchase of vehicle is admitted for carrying goods with a view to make commercial gain and nobody purchases such highly priced produce for earning livelihood.  When a customer buys goods for commercial purpose and avails of services attached to goods in the nature of warranty he cannot be considered to be a consumer even for purpose of services during warranty period.  The complainant already owns (2 vehicles) number of vehicles.  OP-3 states that relief sought in this complaint is not for sole purpose of earning livelihood.  It is stated that when the said vehicle was purchased for commercial purpose for earning more profit then complaint is not maintainable.  Complainant is guilty of supressiovari and suggestion falsi as complainant has not come to this Forum with clean hands.  Complainant is estopped by his own act and conduct.  Complaint is false.  Complainant has no locus standi or cause of action.  Complaint is an abuse of misuse of process of law. On merits, it is stated that OP-2 never contacted the complainant at MandiGobindgarh to get the vehicle purchased.  Rather, complainant himself visited office of OP-1 at Ludhiana for purchasing the vehicle in question.  OP No.1 is dealer of OP-3 and OP-2 is not dealer of OP-3. OP never gave any alleged assurance of 1,50,000/- KM running capacity without any torn and worn or five years warranty on tyres whichever is earlier as alleged.  Further, the terms of warranty specifically provide that parts such as tyre, battery etc contains separate warranty given by its manufacturer respectively and in the present case the warranty has been provided by JK Tyres.  OP-3 stated that any purported grievance of complaint regarding the tyre is not maintainable as against this OP-3.  The tyre manufacturing company that is JK Tyres is not made a party in this case and this case deserves to be dismissed for non-joinder of parties.  OP-3 has mostly reproduced all other objections as taken by OP No.1&2.  After denying the other averments made in the complaint, the OP-3 prayed for dismissal of the complaint.
4. In order to prove his case, complainant has tendered in evidence photocopy of documents Ex.C-1 to Ex.C-6, his affidavit Ex.C-7 and then closed the evidence.Then in additional evidence complainant has tendered report of RoopRai, Mechanical Works dated 11.06.2018 Ex.C-8, CDS Ex.C-9 and Ex.C-10, pen drive Ex.C-11 and closed the additional evidence.  In rebuttal, counsel for OP-1 has tendered affidavit of Kulwant Singh Branch Manager Ex.OP1/1. Then counsel for OP No.1 to 3 has tendered photo copies of documents Ex.OP1/2 & Ex.OP1/3.  Counsel for OP-3 has tendered affidavit of Ramanjot Singh Branch Manager/Ashok Leyland Ex.OP3/1.  Counsel for OP No.1 tendered in additional evidence photocopy of R.C. Ex.OP1/4 and closed the additional evidence. In rebuttal to additional evidence, counsel for complainant has tendered statement of account Ex.C-12 & Ex.C-13 and closed the evidence.                                                                                                                                                                
5. We have heard the learned counsel for parties and have also gone through the record carefully.                                                                       
6. Complainant having purchased the vehicle class HGB, Chassis No.MBIKACFDIHPGX1855 and Engine No.HGPZ104162 having 180 H.P., having 6 cylinders is not disputed.  Learned counsel for the opposite party argued that the vehicle purchased by the complainant is of commercial category and he has hired 3 persons and as such complainant is running the vehicle for commercial purpose for earning the profit at large.  Hence, this Forum is not competent to entertain and try the present complaint and as such the complaint is not maintainable.                                                                   
7. No doubt, vehicle purchased by the complainant is of commercial category.  But the complainant has clearly pleaded in the complaint that he is plying the same for earning his livelihood.  When the complainant is plying the vehicle for earning his livelihood, it cannot be said that he is earning the profit at large scale.  Moreover, opposite party has no where pleaded in their written statement that complainant is running a transport company and the vehicle is registered in the name of that transport company.  Merely, from the category of the vehicle being commercial, it will not be justified to say that case of the complainant falls within commercial category and this Forum cannot try and decide the same.  Hence, this objection of the opposite party is set aside.
8. .Grievance of the complainant in the present complaint is that due to manufacturing defect in the vehicle,tyres of the vehicle              have meted out its full capacity only after running the vehicle at 37000 KMs whereas at the time of purchase, assurance was given to him that the vehicle has been equipped with JK Tyres having 1,50,000/- Kms running capacity and five year warranty.  But this fact has been denied by the opposite party specifically in Para No.4 of the reply.  It has been contended by the learned counsel for the opposite parties that tyres of the vehicle in question are of very superior and good quality and there is no manufacturing defect in the chassis of vehicle.  Complainant failed to get conducted the wheel alignment as per specification given in booklet of the vehicle and it is violation on his part.  Complainant has placed on record Ex.C-2 “Extended Warranty Package Super” in which it is specifically mentioned as under:-“It is mandatory to carry out service at any of Ashok Leyland’s Dealership or Authorized Service Centres to be eligible for warranty extension for 1.5 years/1.5Lak Kmsutpo 4 years/4 Lac Kms. Whichever is earlier”
9.        Bare perusal of the document Ex.OP1/3 produced by the opposite party shows that PDI (Pre Delivery Inspection) of the vehicle                was done on 07.03.2017 i.e. date of purchase of the vehicle.  On 08.04.2017 at KM reading of 6903, 50 hours service was got                   done.  On that day, wheel alignment was also done.  Likewise, at the reading of 18416 KMs,first free service was got done. If the                wheel alignment was required, mechanic of OP should have recommended for the same.  But the mechanic never recommended              for    the same.  On 07.08.2017 at KM reading of 32602, work was also done on rear Axle Hub end Gasket and bearing of two sides          H-series was recommended and done by the OPs.  On 01.09.2017, at KM reading of 37011 repair order is for Twin Front Axle,                  Wheel Alignment, Check and adjust H-series (FA310A).  It is not understood as to why work on both front axle and wheel                       alignment and adjustment of H-series (FA310A) was got done.  Mechanic of the opposite party should have clearly mentioned in              that    endorsement as to why work on Axles was recommended, but document is silent in that respect.  Similarly on 02.09.2017 at                 KM reading of 37100 repair order is regarding replacement of King Pin, bushes and Axle Arm and both side H-Series                (FA120A). This endorsement is also silent as to why that repair order was recommended.  This document shows that work on front axle and change of axle arm, hub and adjustment of H-Series was always done.  But on every endorsement, it is not mentioned as to why this job order was recommended and performed.  As per record of the opposite party, work on the vehicle was done on 01.09.2017 and 02.09.2017.  When his complaint was not resolved, complainant filed the present complaint on 22.09.2017,then, opposite party cleverly wrote letter dated 03.10.2017 Ex.OP1/2 to the complainant to take delivery of the vehicle.  In this letter, it has been clearly mentioned that complainant reported for abnormal type wear and Km reading is mentioned as 37011. Vehicle was in possession of the OP on 01.09.2017 but how it runupto 37100 KMs on 02.09.2017, which reading is mentioned in the job order of 02.09.2017.  It appears that in one day OP operated the vehicle for 89 Kms.  Report of JK Tyreis dated 22.09.2017. It is not understood as to why OP is writing letter to complainant on 03.10.2017 i.e. after a lapse of 11 days asking the complainant to take delivery of the vehicle otherwise he will be charged Rs.200/- per day.  The case of the complainant is that till that time defect in the vehicle was no removed.  Neither postal receipt regarding dispatch of this letter to the complainant is placed on record nor the opposite party has produced any record showing that the said letter was ever delivered to complainant. On 01.05.2018, complainant moved an application before this Forum for getting the vehicle examined form some independent workshop, on which local commissioner was appointed and in the presence of both the parties and local commissioner, vehicle was got examined from RoopRai Mechanical Works, Khanna.  Report of RoopRai Mechanical Work is Ex.C-8 also shows that there was some difference in front axle degree, there is difference in Dead Axle for 3 – 4 MM right and left side, in differential tube difference was of 4 MM and difference also exist in alignment of tyres.  On putting load, this difference became doubled.  Out of 100 vehicle, such like defect occurs in 2 – 3 vehicles.  Due to problem in axles, there is abnormal wear and tear of tyres.  Job sheet produced also shows that work was also got done on axles and hub of the vehicle by the OPs.  Hence, from all this, it is clearly established that there was some defect in axles of the vehicle due to which the vehicle was suffering from excess wear of tyres.  Video recording of the inspection of vehicle at RoopRai Mechanical Works has also been observed.
10. 10.From job sheet of the opposite parties, it is also clear that within almostseven months, the vehicle consumed 50% tyres which is not fair of such a costly vehicle for which complainant has invested a bigger amount. 11.Now the question remained for consideration qua the objections to inspection report filed by OPs on 17.07.2018.  For that purpose, we have gone through the case file carefully and found that the inspection of the vehicle from RoopRai Mechanical Works was carried out in the presence of both the parties, as revealed from orderof this Forum. As such, objections filed on 17.07.2018 by OPs is without any merit.
11. In view of the above said facts and circumstances, the present complaint is partly allowed and OPs are directed to remove defect in the vehicle of the complainant to his satisfaction by changing required parts of the same and also to change all the tyres of the vehicle.  The vehicle was purchased by the complainant from OPs and if the tyres of JK Company was fitted, it was only due to some contract entered between Ashok Layland and JK tyres and complainant cannot be asked to approached JK Tyres.  The complainant has run the vehicle upto 37000KMs. Hence, even if it is taken that life of tyres was 1,50,000 KMs. Even then complainant used 25% capacity of tyres.  Hence, complainant will pay 25% costs of the tyres.
12. Due to defect in the vehicle, complainant has suffered a lot of mental tension, agony and harassment and loss in his earning.  Such a reputed company like Ashok Leyland is supposed to remove the defect in the vehicle at an early stage when it is reported, which the O.P.s have failed to do so.  About 17 months have elapsed from 01.09.2017 the vehicle is lying with O.P.s workshop.  They never made any endeavor to set the vehicle set right.  Hence, the O.P.s are jointly and severely are burdened to pay Rs.2,00,000/- (Rupees Two Lakhs) as compensation to the complainant for mental tension, harassment and loss of earning and Rs.15,000/- (Fifteen Thousands Only) as costs of legal proceedings.  Compliance of the order be made within one months from the date of receipt of order.
13. The arguments on the complaint were heard on 25.02.2019 and the order was reserved. Now the order be communicated to the parties, as permissible, under the rules.File be indexed and consigned to record room.

     Dated 11.3.2019

                                     (Inderjit)    (Capt.Yuvinder Singh Matta)                   (Kuljit Singh)

                                   Member               Member                                  President