KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM APPEAL 879/06 JUDGMENT DATED: 23.4.2010 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER 1. M/s Tata Motors Ltd., : APPELLANTS Formerly M/s TELCO, Zonal Service Office, 19/217, Suneetha Housing Society, Opp. New Karnataka High School, Pune. 2. M/S Tata Motors Ltd., Formerly M/s TELCO, Regional Sales Office, Opp. Kalamassery Railway Station, North Kalamassery, Ernakulam. (By Adv.Joseph & Kuriyan) 3. M/s Sakthi Automobiles, Branch Office, Thottada, Kannur – 670 007. (By Adv.Joseph Markos) Vs. Mr.E.P.Manikakndan, : RESPONDENT Represented by Power of Attorney Holder – Mr.E.P.Ratnakaran, Paradenpoyil House, Mavilachal.P.O., Eachur, Kannur District. (By Adv.P.Sunil Nair) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order dated 21st February 2006 of the CDRF, Kannur in OP.71/2002. The complaint therein was filed by the respondent herein as complainant against the appellants/opposite parties 1 to 3 alleging deficiency in service on the part of the opposite parties in collecting the service charges and repair charges from the complainant during the warranty period with respect to the vehicle purchased by the complainant from the opposite parties. 2. Before the Forum below Exts.A1 to A4 documents were marked on the side of the complainant. No oral evidence was adduced by the complainant. The service Deputy Manager of the 3rd opposite party was examined as DW1. The expert report was marked as C1. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite parties to pay sum of Rs.30000/- to the complainant as compensation with cost of Rs.2000/-. Hence the present appeal. 3. When this appeal was taken up for final hearing, there was no representation for respondent/complainant. We heard the learned counsel for the appellants. He submitted the arguments based on the grounds urged in the memorandum of the present appeal. He much relied on Ext.A3 terms and conditions of the warranty and the testimony of DW1. He also relied on C1 commission report and submitted that there was no manufacturing defect for the vehicle. It is also submitted that the complainant failed to follow the conditions of the warranty incorporated in the service manual which was issued to the complainant at the time of purchase of the vehicle. It is argued for the position that the vehicle was not serviced and maintained at the authorized service centre of the manufacturer and there was failure on the part of the complainant/consumer to follow the conditions in the warranty. And so the complainant is not entitled to get the benefits under the warranty. Thus, the appellants requested for setting aside the impugned order passed by the Forum below. 4. The points that arise for consideration are:- 1) Whether there was any deficiency in service on the part of the opposite parties as alleged by the complainant in OP.71/02? 2) Whether the forum below can be justified in passing the impugned order directing the opposite parties to pay compensation of Rs.30000/- with cost of Rs.2000/-? 5. Points 1 and 2- There is no dispute that the respondent/complainant purchased Tata 407 type vehicle from the appellants/opposite parties on 20.7.1999. The opposite parties 1 and 2 are the manufacturer and the 3rd opposite party is the dealer and service centre of the manufacturer. Admittedly the aforesaid vehicle purchased by the complainant from the opposite parties had a warranty for a period of 3 years or 3 lakhs KMs which ever is earlier. It is further admitted that the vehicle was brought to the 3rd opposite party for effecting repairs on 11.2.2002 and the 3rd opposite party effected repairs. The said vehicle was delivered on 22.2.2002. Admittedly, the 3rd opposite party collected a sum of Rs.20053/- from the complainant as service charges including labour charges. The case of he complainant is that he is entitled to get free services because the repairs were effected during the warranty period. There is no doubt about the fact that the aforesaid repair was effected during the warranty period. 6. The opposite parties vehemently contended that the complainant is not entitled to get any benefit under the warranty, as the complainant has violated the conditions of warranty. It is the definite case of the opposite party that the vehicle was not serviced as stipulated in the conditions of the warranty; that the complainant carried out the periodical repairs and maintenance at the authorized workshop of the opposite parties 1 and 2 only up to 25.2.2000 and there after the vehicle was taken to the 3rd opposite party only on 11.2.2002. 7. The appellants/opposite parties relied on the terms and conditions incorporated in A3 warranty. The condition No.5 in A3 warranty is as follows: “this warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishment, our authorised dealers or their sub dealers or service centers in any way so as, in our judgment which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding , the vehicle or the part has been subjected to misuse, negligence, improper or inadequate maintenance and servicing or accident or loading in excess of the carrying capacity as certified by us, or the services prescribed in operators service book are not carried out at our sales or service establishments, our authorized dealers or their sub dealers or service centers”. 8. Thus, the aforesaid warranty condition would make it clear that the services prescribed in the operators service book are to be carried out at the service centers of the authorized dealers or sub dealers of the manufacturer. It would also show that if the necessary services prescribed in the operators service book are not carried out or those services are carried out in any other work shop other than the authorized dealers or sub dealers, service centers, the purchaser of the vehicle is not entitled to get benefits under the warranty. Ext.A2 is copy of a page in the operators service book issued to the complainant. Ext. A2 would show that servicing of the vehicle has to be carried out at the authorized service centers or dealers on every 56 KMs. But in this case there is nothing on record to show that the complainant/consumer serviced the vehicle at the centers of the authorized dealers of the manufacturer. The complainant has not produced any document to show that the vehicle was having regular maintenance and service at the authorized service centers on every 5000 KMs. It can very safely be concluded that the complainant/consumer failed to follow the conditions stipulated in the operators’ service book and in the warranty and that the complainant was not entitled to get any benefit under the warranty. If that be so, the free service claimed by the complainant during the warranty period can not be allowed. In fact the complainant was not entitled to invoke the warranty conditions. The 3rd opposite party is justified in collecting the service charges including labour charges from the complainant in effecting the repairs to the vehicle which was produced before the3rd opposite party on 11.2.2002. 9. The complainant has got a case that the vehicle was having manufacturing defect and so the opposite parties are liable to cure the defects free of charge. But, the complainant has not succeeded in establishing his case regarding manufacturing defect. No expert evidence is forthcoming to substantiate the case of the complainant that the vehicle was having manufacturing defect during the warranty period. At the instance of the complainant, the expert commissioner was appointed. Ext.C1 is the expert report submitted by the expert commissioner. A perusal C1 report would make it clear that the complainant failed to produce the disputed vehicle for inspection by the expert commissioner. It is categorically reported in C1 expert report that notice was issued to the complainant for inspection of the vehicle, but the complainant failed to produce the vehicle for inspection. It was reported by the complainant that the vehicle is not in his custody. He had sold the vehicle to another party. Thus, the expert had no occasion to inspect the vehicle and to ascertain as to whether there was any manufacturing defect to the vehicle. The C1 expert report was submitted by examining the repaired parts. On examination of those replaced parts, the expert has come to the conclusion that seizure of the engine was due to over heating of the engine, as a result of insufficient or no lubrication oil in the engine and absence of cooling water and incorrect cooling system. It was also concluded that the engine seizure and the reported damages occurred due to faulty or incorrect cooling system. The C1 report would give an indication that the engine was not provided with sufficient engine oil and the cooling system was not provided with cooling water. This circumstance would give an indication that there was negligence on the part of the complainant in maintaining the vehicle properly. Ext.A3 warranty would also make it clear that the warranty does not cover normal wear and tear of the vehicle or the parts or any damage due to negligent or improper operation or storage. In the light of the aforesaid finding made by the expert commissioner it can be concluded that engine was seized function because of lack of proper maintenance or due to operational negligence. Thus, in all respects the complainant was not entitled to get free services at the hands of the 3rd opposite party dealer. The Forum below cannot be justified in awarding compensation of Rs.30,000/- with cost of Rs.2000/-. In fact the complainant was liable to pay the service charges including labour charges amounting to Rs.20,053/-. The 3rd opposite party is justified in collecting the said amount from the complainant towards service charges including labour charges. Thus, the impugned order passed by the Forum below is liable to be set aside. Hence we do so. These points are answered accordingly. In the result the appeal is allowed. The impugned order dated 21.2.2006 passed by CDRF, Kannur in OP.71/2002 is set aside. The parties are directed to suffer their respective costs. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER ps | 
