DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 30th day of October 2015
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 7/11/2014
(C.C.No.172/2014)
Sijo.K.O.
S/o.Ouseph.K.V.
Kuttikaden House, Nedungode, Kiliyallur,
Cherammangalam (PO), Palakkad District - Complainant
(By Adv.R.Manikandan & P.Vatsala)
Vs
1.Branch Manager,
PSN Automobiles Pvt.Ltd.,
35/189, NH-47, Palarivattom, Kochi
(By Adv.V.Krishna Menon & B.Sulfikar Ali)
2.The Branch Manager,
PSN Automobiles Pvt.Ltd.,
Opposite Cosmopolitan Club,
N.H.47, Kadankode, Palakkad District - Opposite parties
(By Adv.V.Krishna Menon & B.Sulfikar Ali)
O R D E R
By Smt.Shiny.P.R. President.
Brief facts of complaint.
On 23-6-2011 complainant purchased a Eicher Commercial vehicle bearing Engine No.E483CDCE575332 and Chassis No.C233HR C068947 for Rs.11,75,000/- from the 1st opposite party. The vehicle was delivered by the 2nd opposite party. Complainant submitted that he had availed a loan of Rs.8,00,000 from the South Indian Bank Nemmara Branch for purchasing the above said vehicle. Complainant had purchased the vehicle with the intention to use it as a means of self employment. He had also obtained national permit for this purpose. At the time of purchase opposite parties assured the quality of the vehicle and the best services and that the complainant will be given free service for the vehicle at 9000 km, 18000 km and 27000 km. That immediately after purchase the complainant had started plying the vehicle from Moovattupuzha to Bangalore twice a week for transporting pineapple and electronic goods from Bangalore to Ernakulam and Kottayam from which he was earning Rs.12000/- per trip to Bangalore and Rs.18000/- on an average per trip to Ernakulam and Kottayam. After running 4500km the problems developed with the brake system which led to the beating up of the tyre and hub making it impossible to ply the vehicle. 2nd opposite party had solved the problem by opening the cam and correcting the brake system.
Thereafter the complainant had given his vehicle for the first service at 9000 km at the service centre at Moovattupuzha according to the opposite part’s instruction. Since the above problem was persisting the opposite parties corrected the brake system by again opening the cam. At the time they assured that the problem will not arise again. But contrary to the assurance given by the opposite parties the same problem occurred at Moovattupuzha when the vehicle runs barely another 5000 km. As per the instructions given by the opposite parties complainant handed over the vehicle to the Unichira Service centre at free service of 18000 km. At that time the service personnel of the opposite parties informed that the problem with the brake system is due to a small difference in thickness of the wheel drum hence all the four wheel drums has to be taken out and phased and that there is also a sound coming from the gear box. For this purpose the vehicle had retained with the service centre for 4 days. Opposite parties had insisted on payment of Rs.8373/- for repair. Since there is no other way Complainant remitted the amount of Rs.8373/-and taken delivery of vehicle on 5-11-2011.Then on 18-11-2011 when the vehicle was plying along Moolamattom Road noted that diesel and oil leak from the pump and also a missing while running. This fact also informed to the opposite parties and service personnel of the opposite parties came to the spot and took the vehicle to the service centre. After inspecting the vehicle the opposite parties service personnel had informed that the metal powder is seen coming from the pump and instructed to take the vehicle to the Thrissur centre since the guarantee for the pump is to be given by Bosche company. There after the vehicle was repaired and the opposite party contacted the complainant and informed him that the vehicle could be taken delivery on after making payment of the bill of Rs.18500/-.The complainant shocked to hear this. Opposite parties refused to handover the vehicle without getting payment.
On 29-12-2012 a lawyer notice was sent to the opposite parties. On 13-2-2013 they replied for the same putting forth false and untenable contentions. Meantime complainant was constrained to make payment of Rs.14,466/- and taken delivery of vehicle as complainant’s losses were accumulating due to the non availability of his vehicle.
After getting reply from the opposite parties complainant had got the vehicle inspected by an Approved Valuer and Insurance Surveyor on 1-4-2013 who had issued a report stating that the vehicle is having manufacturing defect. According to the complainant by selling defective vehicle opposite parties committed unfair trade practice and deficiency in service. Hence the complaint. Complainant prays for an order directing opposite parties to
- Repay the complainant the sum of Rs.22,839/- being the amount paid by him as service charges with 12% interest per annum
- Pay the complainant a sum of Rs.60,000/- towards loss of business and
- pay the complainant a sum of Rs.1,00,000/- as compensation for the mental anguish suffered by him due to the deficiency in service from the side of the opposite parties.
Complaint was admitted and issued notice to opposite parties. Both opposite parties entered appearance and filed their version contending the following:
The complaint is barred by limitation and it is not maintainable. Opposite parties contended that the complainant had before placing order for the vehicle and thereafter at the time of taking delivery of the vehicle personally inspected the same and only after being satisfied with the vehicle booked and thereafter taken delivery of the vehicle. The alleged complaints with respect to the brake system in the vehicle had been rectified to his satisfaction under warranty. While attending to the complaints of brake system, the opposite parties only charged for the consumables and wear and tear items which he is liable to pay in terms with the conditions of warranty. The Alleged complaint of Fuel Injection Pump had occurred on account of use of adultered fuel by the complainant. This had further led to diesel starvation. As the complaint to the FIP had occurred only on account of the latches on the part of the complainant, the authorized service centre of the manufacturer of FIP had refused to attend the complaints under warranty. Realizing the facts complainant had taken delivery of the vehicle after making payment towards repair charges without any protest. This complaint is filed after 22 months of taking delivery of the vehicle. On 13-2-2013 opposite parties sent a reply to the notice sent by the complainant. Since no notice was served by the Insurance valuer to these opposite parties, the report of the valuer has no sanctity of law and is not any way binding on these opposite parties. Therefore there have been no latches, deficiency in service, negligence or unfair trade practice on the part of these opposite partiers. The complaint is liable to be dismissed.
Complainant and opposite parties filed their chief affidavits. Exts.A2 to A5 are marked from the side of the complainant. Ext B1 is marked from the side of opposite parties. Complainant filed IA 215/2015 seeking permission to cross examine opposite parties. But they were not present for cross examination.
The following issues are considered
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of opposite parties?
- If so, what is the relief?
Issues 1
We have perused the documents produced by both parties. In the complaint, complainant pleaded that the vehicle was purchased for his livelihood. Hence complainant is consumer under section 2 (1)(d) of the Consumer Protection Act 1986. Complainant submitted that on 1-4-2013 Approved valuer and Insurance Surveyor inspected the vehicle and reported that the vehicle is having some manufacturing defects. After knowing the facts about the manufacturing defects of the vehicle, complainant filed complaint before the forum. On perusal of the documents it is seen that complaint is filed on 7-11-2014 i.e, within two years from the date of report Ext A5 submitted by the expert. In the present case limitation period started from the date of knowledge about the defects of the vehicle i,e. from the date of the report of expert. Complaint is filed well within the period of limitation. Hence we are of the view that complaint is maintainable.
Issues 2&3.
In the version and affidavit of opposite parties, they admitted that alleged complaints with respect to braking system in the vehicle had been rectified to the satisfaction of the complainant and they charged only for consumables and wear and tear items under warranty. But the complaint of brake system was occurred within six months of its purchase and within 4500 km i,e within warranty period. Opposite party has no right to charge any amount from the complainant whether it is for the consumable or wear and tear items. Again same defect was occurred at the stage of another 5000Km i.e. within the 1st free service of the vehicle.
Opposite parties also admitted that the Fuel Injection Pump was looked into by the authorized service centre of the manufacturer of the FIP. Opposite party contended that FIP had occurred only on account of use of adultered fuel and the latches on the part of the complainant /driver and it also caused diesel starvation. For proving this contention opposite parties neither cross examined complainant nor adduced any documentary evidence. As per Ext.A.5 report Expert opined that the vehicle is having defective brake mechanism and uneven tire wearing especially the front right side and rear left side wheels. The vehicle is having some manufacturing defect which resulting in the abnormal wear and tear of tyres. At the time of marking Ext.A5 opposite parties not challenged the report. Hence the opinion of the expert is taken into consideration.
According to opposite parties, the complainant had taken delivery of the vehicle after paying the amount for repair charges without any demur or protest and after expressing satisfaction over the work done. But Ext A3 series shows that complainant had paid an amount of Rs.14,466/- to the opposite parties for the repair charges under protest. Ext A.3 series disproved the contentions of the opposite parties. After spending huge amount for the purchase of vehicle for his livelihood, complainant is compelled to pay additional charges for repairs which were occurred within very short span of time I,e. within six months. It will definitely cause huge mental agony to the complainant. Moreover he has lost the income from the vehicle for the days on which the vehicle was kept with opposite parties for repair. Complainant filed IA 215/2015 seeking permission to cross examine opposite parties. Opposite parties are absent for cross examination. Hence adverse inference taken.
From the evidence adduced by the complainant, we came to the conclusion that the vehicle is having some defects as alleged in the complaint which resulted into the decrease in the income of the complainant. Since these defects are occurred within the period of warranty, the opposite parties have the liability to cure the defect at free of cost. Instead, they charged repair expenses from the complainant. This act of opposite parties amounts to deficiency in service. According to the complainant he had a loss of Rs.60000/- in business. To prove this allegation complainant did not adduce any evidence. Hence it cannot be allowed. Defect in the newly purchased vehicle will definitely cause severe mental agony to the complainant. Hence the opposite parties have the liability to compensate for the mental agony sustained by the complainant. Complainant also submitted that he had taken a loan for the purchase of the vehicle. In the affidavit he has stated that the documents related to loan of the vehicle has to be marked. But at the time of evidence it is seen that A1 document is not produced by the complainant. Hence it cannot be taken into consideration. The complainant has not produced any document to show that he had paid an amount of Rs.22,839/- to opposite parties. ExtA2 series evident for the payment of Rs.14,466/- to the opposite parties.
In the above circumstances opposite parties are liable to pay the amount of Rs.14466/-which was received from the complainant and compensation for mental agony to the complainant.
In the result complaint is partly allowed. Opposite parties are jointly and severally liable to pay Rs.14,466/- (Forteen thousand four hundred and sixty six only) towards the amount which was received from the complainant, Rs.25,000/- (Rupees Twenty five thousand only) as compensation for mental agony and Rs.2,000/- (Rupees Two thousand only) as cost of proceedings.
Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 30th day of October 2015.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Appendix
Exhibits marked on the side of complainant
Ext.A2 series – Copy of lawyer notice dated 29/12/12 sent to opposite parties
alongwith postal receipt and acknowledgement cards.
Ext.A3 series – Copy of letter sent by complainant to opposite party dated
14/1/13 alongwith postal receipt and acknowledgment cards.
Ext.A4 – Reply to lawyer notice dated 13/2/2014
Ext.A5 – Inspection report dated 1/4/2013 submitted by A.M.Sheriff.
Exhibits marked on the side of complainant
Ext.B1 – Photocopy of relevant pages of operator’s manual.
Cost
Rs.2,000/-allowed as cost of the proceedings.
