KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO. 530/11

JUDGMENT DATED: 29.10.2012

PRESENT

SHRI. K. CHANDRADAS NADAR          : JUDICIAL MEMBER

Force Motors Ltd.,

Mumbai-Pune Road,

Akurdi, Pune-411035,

R/by its Manager, Mahesh Bose,             : APPELLANT

Force Motors Ltd.,

Akurdi, Pune.

(By Adv: Sri.Chirayinkil C.P. Bhadrakumar)

          Vs.

1.      Divine.K.R, S/o Ramakrishnan,

Kulathur House, Keralasseri village,

Palakkad Taluk, Palakkad.

2.      A.Anilkumar, S/o Sankaran Nair, ‘Bindu Nivas’,

Keralasseri village,

Palakkad Taluk, Palakkad.

3.      Rameshan, S/o Achuthan Nair,

“Kariyakunnath House”,                                                                           

Keralasseri village,                          : RESPONDENTS

Palakkad Taluk, Palakkad.

4.      Abdul Kabeer, S/o Veernakutty,

“Thazhathe Veedu”, Thadukkasseri,

Keralasseri village,

Palakkad Taluk, Palakkad.

(R1 to R4 by Adv:Sri.Dhananjayan)

5.      Musthafa, S/o Muhammed,

 “Korakunnu House”,

Keralasseri village,

Palakkad Taluk, Palakkad.

6.      M/s Anugraha Automobiles,

14/724, Coimbatore Road,

Kalmandapam, Palakkad-1.

                                       JUDGMENT

SHRI. K.CHANDRADAS NADAR: JUDICIAL MEMBER

The appellant was the 1^st opposite party in CC.13/09 in the CDRF, Palakkad.  Respondents 1 to 5 were the complainants.  They were RC owners of one Minidor autorickshaw each manufactured by the 1^st opposite party and distributed by the 2^nd opposite party valued at Rs.1,68,000/-.  These autorikshaws were purchased during July to October 2007.  It is alleged by the complainants that they approached the 2^nd opposite party after the purchase of the vehicle when various defects in engine developed which could not be rectified despite repeated overhaul of the engine and replacement of accessories.  Even during the warranty period vehicles became constantly unserviceable resulting in huge loss to the complainants.  The 2^nd opposite party had promised a mileage of 35 Kms per litre of diesel for the vehicles.  But the vehicles never gave the mileage of even 18 Kms per litre.  The major defects noticed in the engines are heavy oil consumption and leakage.  The 2^nd opposite party attempted to rectify the defects by removing almost all the vital and valuable parts of the engine after dismantling it but could not succeed.   The vehicles had been with the 2^nd opposite party for rectification of the defects almost all the time.  The price of the vehicles was high compared to vehicles of similar category manufactured by other companies.  The complainants are unemployed youths and purchased the vehicles utilizing Bank loan.  The 2^nd opposite party had promised that the vehicles were road worthy and all repairs would be attended by the company at their cost during the warranty period.  The opposite parties failed to keep their promise.  The Manager of the 2^nd opposite party admitted that there were inherent manufacturing defects in the engine of the vehicles.  The 1^st opposite party is not co-operating to rectify the manufacturing defects.  The opposite parties have not made further sale of their vehicles.  Complainants sent notice through their lawyer on 21.8.08 to the opposite parties.  The 1^st opposite party did not send any reply.  The 2^nd opposite party replied that they were only carrying out the instructions of their principal.  The acts of the opposite parties amounted to deficiency in service.  Hence the complaint claiming refund of the price of the vehicles or in the alternative for direction to make the vehicles road worthy by rectifying the defects and for other reliefs.

2.      The opposite parties filed separate version.  The 1^st opposite party/appellant admitted that the 2^nd opposite party was their authorized dealer but contended that the dealers were independent entities and they managed the sale and after sale services.  The 2^nd opposite party has resigned dealership of the 1^st opposite party with effect from 22.1.09. The 1^st opposite party is not aware of the subsequent transactions and they are not responsible for any deficiency in service on the part of the dealers as stipulated in the dealers appointment letter.  There is no privity of contract between the customers and 1^st opposite party. The vehicles sold to the 2^nd opposite party were in good condition without any manufacturing defect.  The problems and complaints alleged arose due to several reasons, beyond the control of any manufacturer or dealer.  The records available with the opposite party reveal that the vehicles of all the complainants are having progressive kilometer record and hence those vehicles were running in good road worthy condition.  So, the vehicles are not having any manufacturing defect.  The 5^th complainant has not availed all the mandatory free services.  He has availed only the 1^st, 2^nd and 4^th free services.  The warranty period for Minidor vehicles is 36,000 kms or 360 days from the date of sale whichever occurs earlier subject to the terms and conditions specified.  The complainants have approached the Forum after the expiry of the warranty period.  The 1^st opposite party has not received any notice from the complainants.  The warranty is limited to repair and replacement of defective parts in genuine case and the entire vehicle can never be required to be replaced during the warranty period.  The 1^st opposite party prayed for dismissal of the complaint.

3.      The 2^nd opposite party admitted that the complainants had purchased Minidor autorickshaws manufactured by the 1^st opposite party from the 2^nd opposite party but denied that the complainants had approached the 2^nd opposite party with defects in engine to the vehicles.  The 2^nd opposite party had not promised a mileage of 35 kms per litre of diesel as alleged by the complainants.  After sale the 2^nd opposite party was doing service of the vehicles as per rules and regulations laid down by the 1^st opposite party.  The terms and conditions of warranty are detailed in the service coupon book handed over to the complainants at the time of handing over the vehicle.  The complainants have not so far made any complaint about the performance of the vehicle.  The complainants have abused the vehicle by over speeding, over loading, rash driving and rough breaking.  They had run the vehicle without engine oil.   The complainants have never rendered general lubrication services for the vehicle every one month or every 3000 kms as per the terms of warranty.  The 2^nd opposite party is not liable to pay any compensation to the complainants.

4.      Before the CDRF, Palakkad affidavits were filed by the complainants and the opposite parties.  Exts.A1 to A32 were marked on the side of the complainants.  One witness was examined on the side of opposite party No.2.  Exts.B1 and B2 were marked on the side of the opposite parties.  The Forum held that there was deficiency in service and unfair trade practice on the part of the opposite parties and accordingly allowed the complaint and directed refund of half of the original price of the vehicles and payment of Rs.1000/- as costs.  The 1^st opposite party is challenging the decision of CDRF, Palakkad.  The only question that arises for consideration is whether the finding of the Forum that there was deficiency in service and unfair trade practice on the part of the appellant and the 6^th respondent can be sustained on the evidence available.

5.      Admittedly, appellant was the manufacturer and the 6^th respondent was the dealer of Minidor autorickshaws sold to the complainants.  The sale was effected during various months in 2007.  The grievance of the complainants was that during the warranty period the engine of the vehicles developed various complaints which were due to manufacturing defects and as a result they sustained huge loss.  The terms and conditions of warranty for the vehicles sold to the complainants can be seen from the service coupon books issued to them.  Ext.A31 is one of such service coupon books.  It is seen that the warranty period of Minidor vehicles sold to the complainants was 36,000 kms or 360 days from the date of sale whichever occurred earlier.  It is specifically stated that their obligation under the warranty would be limited to repairing or replacing free of charge, such parts which in their opinion were defective when the vehicle was brought to the dealer’s workshop within the warranty period.  The extent of warranty was limited to replacement of defective parts only and not the entire engine or gear box or vehicle.  The warranty did not cover the parts mentioned in the 1^st schedule such as gaskets, rubber items, body fitments etc.  The warranty also did not cover consumable items, damages arising out of or due to negligent or improper handling of vehicle or any part thereof during storage or transportation.  It is pertinent to notice at the outset that the complaint was filed on 21.1.09 after the expiry of 360 days from the date of sale.  The Forum reasoned that the vehicles were repaired and rectified during the warranty period.   But the nature of the repairs effected can be gathered from the several bills produced by the complainants.  From those documents there is little support for the conclusion that there was manufacturing defect for the engine of the vehicles purchased by the complainants.  The Forum itself took note of the fact that no expert opinion was obtained regarding the alleged manufacturing defects of the vehicle. But reasoned that the complainants were ready to produce the vehicles before any technical team to assess its quality and roadworthiness but the opposite parties were not ready to inspect the vehicle to see whether there was any manufacturing defect.   But the burden of proof is always on the complainants who alleged that there was manufacturing defect for the vehicles.  It is pertinent to notice that the vehicles were always in the possession of the complainants and it was their bounden duty to get the vehicles tested for manufacturing defect by a competent expert.  So, really there is no support for the allegation that there was manufacturing defect for the engine of the vehicles purchased by the complainants.  It is also seen from the several bills produced that repairs to the vehicles was often done through workshops other than authorized workshops. That the 2^nd opposite party did not continue dealership of the 1^st opposite party after sometime, is no reason per-se to conclude that there was manufacturing defect for the vehicles.  The Forum took serious note of the submission of the complainants that the Manager of the 2^nd opposite party had admitted that there was inherent manufacturing defect for the vehicles.  But the definite contention of the 2^nd opposite party is that to their knowledge there was no manufacturing defect for the vehicles and the complainants had never approached the 2^nd opposite party with defects in engine.  It is the further contention that rash use of the vehicles like over speeding, over loading, rash driving and breaking and not using engine oil has resulted in the repairs.  At least in the case of the 5^th complainant all the mandatory free services were not availed. As mentioned earlier service of unauthorized service centers was availed in repairing the vehicles.  There is also force in the contention of the 1^st opposite party that all the vehicles of the complainants were having progressive kilometers record which indicates that the vehicles were in road worthy condition.  The several bills produced show that repair or replacement of unimportant parts was effected and there was no defect for the engine of the vehicles at any point of time as alleged.  Such replacements or repairs in all probability were needed because of rash use of the vehicle as contended by the dealer.  In short there is no ground to hold that there was deficiency in service on the part of opposite parties. Unfair trade practice on the part of the opposite parties is not at all established in evidence.  So, the Forum erred in allowing the complaint.  Therefore the appeal is liable to be allowed.

In the result the appeal is allowed.  The order of the CDRF, Palakkad in CC.13/09 dated:30.12.2010 is setaside.  The complaint is dismissed and having regard to the facts and circumstances of the case the parties are directed to bear their costs in the appeal.

K. CHANDRADAS NADAR  : JUDICIAL MEMBER

VL.