KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.158/2007

                             JUDGMENT DATED: 28.02.2012

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

1.      The Manager,

M/s Tata Motors Ltd.,

Regional Sales Office,

Edappally Byepass Road,

Palarivattom, Kochi.

                                                                   : APPELLANTS

2.      M/s Focuz Motors,

Focus Towers, Kochi.

(By Adv: M/s Menon & Menon)

          Vs.

C.C.George,

Chelattu House,

Oliyappuram.P.O,                                     : RESPONDENT

Koothattukulam (Via), Ernakulam.

(By Adv: Sri.Tom Joseph)             

                                                JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

The appellants are the opposite parties, the dealer and manufacturer in CC.343/06 who are under orders to replace the vehicle or to refund Rs.2,30,828/- after taking back the vehicle and to pay compensation of Rs.20,000/- and cost of Rs.2000/-.

2.      It is the case of the complainant that the Tata ACE Mini lorry purchased by him on 20.10.2005 for a sum of Rs.2,30,828/- for earning his livelihood by means of self-employment is having manufacturing defect.  According to him the vehicle could not be moved through slightly elevated roads with the minimum load.

3.      It was contended by the opposite parties that the complainant is not a consumer as he purchased the vehicle for commercial purpose.  The allegation that the vehicle could not be moved through slightly elevated roads is denied.  It is pointed out that whenever the vehicle was produced for service and repairs it was returned after recording full satisfaction by the complainant. 

4.      The evidence adduced consisted of the testimony of PW1, DWs 1 to 3 Exts.A1 to A5 and B1 to B4.

5.      The contention that the complainant cannot be treated as a consumer was rejected as he had specifically pleaded that he has purchased the vehicle for earning his livelihood by means of self-employment.  He has also produced Ext.A1 driving license and testified in support of his case.  In the circumstances we find no interference with respect to the above findings is called for. 

6.      Ext.A5 is the report of the expert commissioner who was examined as DW3.  The commissioner has reported that the vehicle could not climb the height of the gradient which is mentioned as 18% which was calculated by another expert engaged by the commissioner who is an Assistant Engineer, Civil (retired) from the KSE Board.  The commissioner has also noted that when the vehicle rides over ditches the bottom provision is touching the ground and that the same is on account of low ground clearance which is a design problem.  It is seen from Ext.B1 and B2 series and B4 the repair order forms produced by the opposite parties that every time there was complaint of less pick up.  The complainant has relied on Ext.A2 advertisement in the newspaper wherein it is mentioned that in every road including village roads the vehicle can be plied comfortably Ext.A2 advertisement is quite eye catching wherein the photo of the vehicle is displayed in the backdrop of 2 elephants.  The warranty provided as per Ext.B3 is for 30000 Kms or forr one year.  We find that the fact that the vehicle cannot be plied in gradients is not mentioned in Ext.A2 advertisement.  On the other hand it is mentioned that the vehicle can be plied in any road.  Hence the above incorrect publicity that attracted the complainant, as stated by him clearly amounts to unfair trade practice and hence the finding of the Forum that the vehicle is having manufacturing defects stands established.

7.      All the same it is seen from Ext.A5 commission report that at the time of inspection the vehicle had run 29510 Kms.  The commission report is dated:2.11.06.  The vehicle was purchased on 20.10.2005 and the complaint has been filed on 6.8.06.  Hence the vehicle is in the possession of the complainant for about 6 years by now.  Hence it appears not appropriate to replace or to refund the entire purchase price of the vehicle as directed by the Forum and also to pay compensation of Rs.20,000/-.  There is nothing to show that the vehicle was not being used by the complainant.  In the circumstances the order of the Forum is modified as follows:-

8.      The opposite parties will be liable to pay a sum of Rs.75,000/- as compensation to the complainant with interest at 8% from the date of complaint.  The direction to pay compensation of Rs.20,000/- is set aside.  The direction to pay costs is sustained.  The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 28.2.2012 the date of this order.

 In the result the appeal is allowed in part as above.

Office will forward the LCR along with a copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

VL.