D.O.F. 02.09.2005

D.O.O. 01.10.2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri.K.Gopalan                :         President

                                      K.P.Preethakumari        :         Member

Smt.M.D.Jessy               :        Member

Dated this the 1^st day of October,  2010

C.C.No.226/2005

P. Purushu,

S/o. Onakkan,

Aged 50 years, Pothiyott House,

P.O. Mokeri, Via. Panoor                                      :         Complainant

(Rep. by Adv. T. Sunilkumar)   

1. Eicher Automotive Marketing Pvt. Ltd.,

    Kannur.

(Rep. by Adv. T. Ravindran)    

2.  Eicher Automotive Marketing Pvt. Ltd.,

     Calicut – 673 021.

(Rep. by Adv. T. Ravindran)    

3.  Eicher Motors Limited,                                    :         Opposite parties

     102, Industrial Area No.1,

     Pithampur – 454 775,

     Dhar District,  Madhya Pradesh  

(Rep. by Adv. P. Raghunath)                                                   

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to replace the chassis of the bus and to pay Rs.4,00,000/- as compensation.

The case of the complainant in brief is as follows :        The complainant was a conductor for about 15 years who afterwards purchased ‘EICHER MINI BUS’ from the 2^nd opposite party.  He placed order before the 1^st opposite party and paid the amount to the 2^nd opposite party.  He purchased the said vehicle on 11.03.2004 for his livelihood since he was not able to do construction job.  Vehicle was registered on 16.03.2004.  On the very same day he got a trip from Kuthuparamba to the Karunakara Guru’s Asram at Thiruvananthapuram for a rent of Rs.10,000/-.  It was three days trip.  The vehicle could proceed from Ramanattukara due to the leak from compressor oil pipe and defect on hand break.  He went Calicut by a car and another bus by fixing an amount Rs.17,000/-.  The incident was brought to the notice of opposite party 1 & 2 and the employee of opposite party has taken the vehicle to their garage. They rectified the defects temporarily and vehicle was brought to the 2^nd opposite party. On 23.03.2004 the compressor oil pipe was replaced from the garage of 2^nd opposite party.  The vehicle was kept under the custody of 1^st and 2^nd opposite party from 17.03.2004 to 23.03.2004. Another day on 03.05.2004 in an another trip from Panoor to Ooty by fixing a rent of Rs.8000/- when the vehicle reached in Thottilpalam the very same defect occurred again by which vehicle could not proceed.   So complainant arranged another bus for the passengers for a rent of Rs.13,000/-.   On 04.05.2004 the 1^st opposite party checked the air leak of the bus and corrected the same from Kannur.  On 31.05.2004 again the vehicle had same complaint on its way to Wayanad. The complainant himself rectified the vehicle by another mechanic on his own cost.  On 03.06.2004 while a trip from Vazhemala to Guruvayoor when it reached at Panoor the said bus could not proceed due to some mechanical defect such as compressor oil leak and break down.  Complainant compelled to arrange another bus for the passengers. Trip rent was fixed Rs.6,000/- but complainant compelled to Rs.8,500/-.  On 08.06.2004 the said vehicle could not complete its journey due to leak of the Compressor oil and the compressor and related all hoses replaced from the garage of opposite party 1.  Again on 12.06.2004 the vehicle stopped its journey on its half way at Panoor due to the leak of the compressor oil. On 14.06.2004 opposite party changed the compressor gasket.  Due to the continuous and mechanical and engine defect complainant could not ply the vehicle regularly.  On 06.09.2004 during the journey to Kadampuzha due to the very same complaint journey could not proceed after Mahe.  Due to this continuous complaint the vehicle could not be played and thereby complainant was not able to remit the loan arrears.  The opposite party is liable to compensate the loss sustained by the complainant.  Hence this complaint.

          Pursuant to the notice opposite parties entered appearance and filed version denying the main allegations of complaint.  Opposite party 1& 2 filed version together and opposite party 3 filed version separately.

Brief facts of the contentions of opposite party 1 & 2 are as follows:  Opposite parties 1 & 2 deny that the complainant had purchased a EICHER MINI BUS from the opposite party 2.  He had purchased only the chassis.  He has opted to get the body built privately. Opposite party 1 & 2 were not connected with the body building.  The complainant was opted to run the same as a “contract carriage”.  Complainant’s vehicle was brought to the garage of the 1^st opposite party at about 4 pm on 17.03.2004 with complaints of “hand brake not working”.  It was also required checking of ‘pulling’ brakes and ‘gear lever’.  The hand brake was adjusted and the pulling was checked when it was found that the air cleaner hose was not in the correct position.  It was reset and the wheel brakes and gear lever were checked.  The workmen at the workshop noticed that while getting the body fixed on the chassis, the installations have been meddled with, probably during the process of fixing the body and the complainant was informed about the same.  The vehicle was retuned to complainant on 17.03.2004 itself.  The complainant brought the vehicle to the garage of the opposite party 2 on 23.03.2004 with complaints of oil leak from compressor side and wiper not working which defects were rectified by opposite party 2.  These opposite parties are not aware of the trips and their terms.  On 04.05.2004 the above vehicle with complaints of “air leak” which on examination, as pointed out to the complainant, on that day itself resulted from the “alteration made in the airlines of the brake system at the time of building the body of the vehicle” .  Opposite party 1 checked the air leak and replaced the air brake free of cost through the same was not covered by warranty.  It is a defect not being one attributable to manufacturing defect. After 23.03.2004  the vehicle had not been brought to these opposite parties until 23.04.2005 when the vehicle was brought for 5000 Km free service.  On 08.06.2004 vehicle was brought to opposite party 1. The compression and compressor pipes were replaced free of cost though not required to be done as per warranty. On 14.06.2004 the employees of opposite party 1 changed the compressor gasket etc are totally wrong and incorrect.  On 11.08.2004 for a minor complaint and thereafter the vehicle brought on 04.11.2004 before opposite party 1.  Minor repair was done on 11.08.2004.  Complaints arose due to the improper fixing of the body on the chassis when the lines on the chassis have been tampered with and the positions changed and it can in no way be attributed to the manufacturing defect of the engine of the vehicle.  Complainant had not demanded replacement of the vehicle.  The defects as alleged in the complaint occurred due to the improper and careless method of building the body of the vehicle and it can in no way be attributed to the manufacturing defect of the engine of the vehicle.  Complainant is not entitled for any remedy.   Hence to dismiss the complaint.

          Opposite party 3 filed version separately.  The main contention raised by opposite party 3 are as follows :  Opposite party 3 is in agreement with the main contentions raised by opposite party 1 and 2.  Opposite party 3 understand from opposite party 2 that the complainant had only purchased a chassis manufactured by this 3^rd opposite party.  Opposite party 3 also understand that the body building and the fixing of the body was not done carefully so that there has been non-alignment while refixing the ‘lines’.  Opposite party 3 raise it as main contention that the defects as alleged in the complaint occurred due to the improper and careless method of building the body of the vehicle and it can in no way be attributed to the manufacturing defect of the engine of the vehicle. Since opposite party 3 agreeing with all other contentions of opposite party 1& 2 it is not repeating here again. Opposite party also prays to dismiss the complainant.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency on the party of the opposite party?

2.     Whether the complainant is entitled for the relief as prayed in the complaint?

3.     Relief and cost?

The evidence consists of the oral testimony of PW1, DW1 & 2, CW1 and documentary evidence Ext.A1 to A4, Ext.B1 and Ext.C1.

Issue 1 to 3 :

          Admitted by complainant purchased a EICHER MINI BUS from opposite party 2.  He had purchased chassis only.  He has opted to get the body built privately.  Complainants allegation is that right from the day of purchase the vehicle intermittently shown default on various different days viz.16.03.2004, 03.05.2004, 31.05.2004, 03.06.2004, 08.06.2004, 02.06.2004, 06.09.2004.  All the trips on these days could not be completed due to different complaints to the vehicle and thereby complainant sustained huge financial loss.

          Opposite party contented that the vehicle in question brought to garage on 17.03.2004 with a complaint of “hand brake not working” and also required checking of ‘pulling’ brakes and gear lever’.  Thus the hand brake was adjusted and pulling was checked and reset.  Wheel brakes and gear lever were checked.  The workmen at the workshop noticed that while getting the body fixed on the chassis, the installations have been meddled with, probably during the process of fixing the body and this was informed to the complainant and the vehicle was returned on 17.03.2004 itself.  The allegation of the complainant is that the vehicle was kept under the custody of 1^st and 2^nd opposite party from 17.03.2004 to 23.03.2004.  But no evidence is adduced irrespective of this custody.  Complainant alleged that the vehicle got a trip from Kuthuparamba to Thiruvananthapuram for a rent of Rs.10,000/- and the vehicle could not proceed after Ramanattukara due to the defects mainly of hand break.  He was then forced to arrange another vehicle for the passengers for an amount of Rs.17,000/-.  Except the statement in proof of affidavit in lieu of chief examination no other evidence is produced by the complainant to prove the payment and loss. Even the receipt of payment has not been produced.  Ext. B1, the vehicle history card shows that the hand brake was adjusted.   It also shows that pulling was checked and reset.  This defect in any way cannot be considered as a manufacturing defect.  So also it is not possible to assess he loss allegedly suffered by the complainant since there was no evidence.  Complainant could have atleast produce the receipt of payment that he has paid to third party or else to give a convincing explanation for not producing the same.

          As per the allegation of complainant the second hindrance of trip occurred on 03.05.2004 at Thottilpalam allegedly of the same reason whereby he sustained a loss of Rs.5000/- for arranging an alternative set up by another vehicle.  Complainant alleges that the trip from Panoor to Ooty was fixed for a rent of Rs.8000/- whereas he was compelled to pay Rs.13,000/- for arranging another bus.  The receipt of payment has not been produced.  No other evidence also produced.  Even not attempt to give a reasonable explanation with respect to the journey. Any how it is admitted that on 04.05.2004 the 1^st opposite party checked the air leak of the bus and corrected the same.  Ext. B1 shows recorded air leak checking and that “Air pipe replaced brake adjusted”.  Hence it is proved the defect has been cured.  The very same complaint occurred again on 31.05.2004.  But this time complainant himself rectified the defect arranging a mechanic of his own cost.  Complainant but did not felt the necessity to produce those receipts before the Forum.

          Another important journey said to be made alternative arrangement since he could not proceed the vehicle due to some mechanical defect such as compressor oil leak and break down occurred on 03.06.2004.  This time complainant allegedly suffered a loss of Rs.2,500/-.  But he has not mentioned any thing about the nature of complaint either in complaint or in proof affidavit except saying some mechanical defects.  Ext.B1 does not carry any entry on the same day or next day.  Anyhow no documents or other evidence has been produced.  So also complainant alleges that the vehicle could not proceed the journey on 08.06.2004 due to leak of compressor oil.  Complainant admitted that compressor oil and related hoses were replaced from the garage of the 1^st opposite party.  Ext.B1seen recorded compressor and all the compressor pipes were replaced.  That means the complaint reported on 08.06.2004 was rectified by the opposite  party.  Again on 12.06.2004 vehicle stopped due to leak of compressor and the same was rectified by changing the gasket.

          The main case of the complainant is that due to repeated mechanical defect he was compelled to make alternative arrangement meeting financial loss so as to continue the journey of the contracted parties on several occasions as a result of which he failed to pay the monthly installment approximately a total amount of 1,00,000/-.  He could not also remit the road tax.  Complainants prayer is to replace the chassis of the bus bearing Reg. No : KL 13 K 9411 having chassis No. 18FF 3079 5212 and Engine No: E 483 A 307 91157 and to pay Rs.4,00,000/- towards compensation.

          Sri. K. Ajithkumar, Insurance Surveyor/ Loss assessor and Valuer was appointed as expert Commissioner to note and report mechanical and other defects.  His report marked as C1.  His report speaks that the condition of the vehicle was poor.  Since the battery was poor he could not ascertain the running condition of the vehicle.  Engine transmission systems are extremely intact.   Body was shutter type and condition was average.  Suspension and steering system extremely intact.  Condition of tyre are poor.  The report also shows that he has inspected the odometer and the reading seen written was Rs.1,08,326 Kms.  Vehicle was 2004 model and according to commissioner the total running Kilometer is less as compared to other vehicles.  Commissioner thus noted the submission of complainant before him that he could not run the vehicle due to problem of mechanical defect.  His report further states that he has verified the service and maintenance record and found that vehicle was break down on 17.03.2004, 23.03.2004, 03.06.2004, 08.06.2004, 12.06.2004 and 14.06.2004 respectively due to failure of mechanical defects. These defects are solved by the dealers.  Commissioner also stated that during his inspection he could find that there was mechanical defect for the vehicle and those problems were solved by the dealers.

          Commissioner has deposed in evidence that he has reported that there was mechanical defect and those problems were solved on the basis of the entry in the service book.  In the cross examination Commissioner deposed thus “Service Book t\m¡n-b-t¸mÄ h­n¡v XpSÀ¨-bmbn complaint D­m-sb-¶pT, AXv bYm-k-a-bT ]cn-l-cn-s¨-¶pT a\-Ên-em-¡n.” He has also deposed that on 08.06.2004 compressor replaced.  Compressor complaint usually hcp-¶-X-Ã. AXv mechanical defect sIm­m-Wv.  Compressor amäm³ Ign-ªm  complaint amdp-T”. It is an admitted case that the compressor and related all hoses replaced from the garage of the opposite party 1. Hence the evidence adduced by the expert commissioner makes it clear replacement will cure the entire complaint if it is replaced.  Hence it can be seen that complaint with respect to the compressor was solved by replacing it.

          The main stress of the complainant is upon manufacturing defect.  But the evidence placed before the Forum does not show that the vehicle was suffered by manufacturing defect.  The evidence of the expert Commissioner and his report Ext.C1 proves that the defects of the vehicle was cured by the opposite parties.  It is pertinent to note that the vehicle in dispute, whatever may be the defect has run 1,008,326 Km as per Ext.C1.  It can also be seen Ext.A1 shows that after the repair 14.06.2004 the defects are seen after one and a half year on 20.02.2006, 31.03.2006 and on 30.10.2006.  Opposite  party concluded that the 25,000/Km free service was done on 09.03.2005.  Why the free service was not recorded in Ext.A has not been explained by complainant.  It is definite that free service will be done by every consumer.  Whatsoever, Ext.A1 shows that the vehicle has covered a distance of 55,385 Kms on 12.12.2006.  Commissioner has recorded 1,08,326 Kms coverage.  Vehicle was registered on 16.03.2004.  Free service as per Ext.B1 for 25,000/- done on 09.03.2005.  This date of free service never questioned by the complainant at any point of time even if Ext.B1 is not accepted.  12.12.2006 it is seen vehicle covered a distance of 55,385 Kms as per Ext.A1.  It is quite evident that a further more 45,000/- Kms more run by the vehicle after 12.12.2006.  Complainant was not able to give answer to the specific question how many Kilometers it has covered when the complaint was lodged?  Complainant deposed in cross examination thus “2009 h­n HmSn-bn-«pt­m  F¶p HmÀ½-bn-Ã. h­n A¶pT C¶pT HmSp-¶p-­v- F¶p ]d-ªm icn-b-Ã. h­n Ct¸mÄ ss^\m³kpImÀ sIm­pt]m-bn. XobXn HmÀ½-bn-Ã.”      It is to be noted here that no amendment sought for changing the prayer even if the vehicle was sold by the financiers to some other persons.  Complainant deposed in cross examination that “ss^\m³kp-ImÀ h­n thsd- BÄ¡v hnäp”.  It is also not clear why did complainant concealed it before the Forum even without stating it in the chief affidavit.

          The complainant failed to produce reliable document and adducing cogent and convincing evidence so as to establish the case of the complainant.  The defects were seen properly attended by the opposite party during warranty period and defective components replaced free of cost. Manufacturing defect has not been proved by the complainant. Hon’ble National Commission has pointed out in Maruti Udyog Limited Vs Hasmukh Lakshmi Chand !11 (2009) CPI 229 (NC) that the “manufacturing defect” is much more than an ordinary defect which can be cured by replacing the defective part. “Manufacturing defect” is fundamental basic defect which creeps while manufacturing a machinery”.  In the present case all the defects occurred has been rectified during the warrantee period.  It is pertinent to note what is stated by Commission in Ext.C1 that after 14.06.2004 the defects could be seen after one and a half year on 20.02.2006.  If there is manufacturing defect there is no chance for such a long duration without reporting defects.  It should also be considered that vehicle in question has been covered a running of 1,08,326 Kilometers.

          Under the above circumstances, taking into account the evidence of expert Commissioner that the complaints were found rectified on verifying Ext.A1 and in the absence of a report of expert Commissioner to the effect that there is manufacturing defect, we are of opinion that the complainant miserably failed to prove that there was manufacturing defect for the vehicle in question.  The complainant is not all entitled for any remedy as prayed in the complaint.  The issues 1 to 3 stands answered against complainant.

          In the result complaint is dismissed.  No order as to costs.

                                Sd/-                    Sd/-            Sd/-

President              Member      Member

APPENDIX

Exhibits for the Complainant

A1.           Operator’s Manual.

A2 & A3.  Receipts dated 29.03.2004 & 16.09.2004 issued by opposite

                party.

A4.          Copy of the R.C. of the vehicle No.KL-13/K9411

Exhibits for the opposite parties

B1.  Vehicle history card.

Exhibits for the Court

C1.  Commission report and photographs

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  P.I. Balaram

DW2.  Manoj M.K.

Witness examined for Court

CW1.  K. Ajithkumar

                                                                   /forwarded by order/

                                                                   Senior Superintendent