DOF.30.6.2009 DOO.16.3. 2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the day of 2011 CC.262/2009 Rajesh.V.K, Vadakka Koyappathaizhe, Kuniyil, P.O.Aniyaram, Panur, Thalassery. Complainant (Rep. by Adv.K.Viswan) 1.Eicher Motors, 102,Industrial Area No.1, Pitampur 454775 Dhar Dist. MP. (Rep. by Adv.T.V.Haridasan) 2. Aoutomotive Marketing Pvt.Ltd., Kairali Nagar, Thottada P.O., Near Govt. Poly Technic, Kannur. (Rep. by Adv.P.P.Bhargavan) Opposite parties Smt.K.P.Preethakumari, Member O R D E R This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to replace the vehicle bearing Reg.No.KL.58/A.3822 with a new one along with compensation of`5lakh with cost. The case of the complainant in brief is that he is the R.C owner of an Eicher GV vehicle with registration NO.KL.58.A.3822. The complainant has valid driving licence and he used to drive the vehicle with due care and caution. Due to the gross mechanical defect the complainant took the vehicle to the 2nd opposite party who is authorized service centre of 1st opposite party. The 2nd opposite party inspected the vehicle and given a checklist and demanded `70,000 as repair charge. At that time the vehicle driven only 13963 km. Since the vehicle given to the complainant is substandard quality it becomes useless. Due to the substandard quality the complainant suffered a lot. There is fault, imperfection and short coming in the service as well as the vehicle delivered by opposite party. So the Opposite parties are liable to replace the vehicle with a new one as the vehicle delivered is mechanically defective. So on 21.3.09 the complainant issued registered lawyer notice. The opposite parties issued a reply stating false contention. Hence this complaint. In pursuance to the notice issued by the Forum both opposite parties appeared and field their version. The 1st opposite party filed version contending that the complaint is filed by suppressing material facts. The vehicle was repaired by 2nd opposite party on 20.3.09. The complainant has willfully omitted to produce operator’s manual in which the warranty obligation of opposite parties are specifically stated. As per this the obligation of 1st opposite party is limited for repairing or replacing free of charge such part or parts of the supplied vehicle which are examination shall be deemed defective with opinion of 1st opposite party or its authorized dealer and such defective part or parts which have been replaced shall become the property of 1st opposite party. The warranty shall not apply to incidental or consequential damages such as loss of use of the vehicle loss of time, inconvenience or damage to personal property commercial loss such as loss of revenue etc. during the period when the vehicle is undergoing service or warranty repairs. The complainant has to prove that the vehicle supplied to him is defective. The 1st opposite party admits that they are the manufacturer of Eicher vehicle and 2nd opposite party is the dealer and the complainant purchased the vehicle from 2nd opposite party on 26.11.07. The vehicle was sold subjected to warranty issued by 1st opposite party and 2nd opposite party is ding the repairs under the warranty issued by1st opposite party. The defects caused to the complainant’s vehicle were not allowable under the warranty and hence 2nd opposite party informed the complainant that he will have to pay the repair charges if the vehicle is repaired. Since there is a specific written warranty, the complainant is bound by the terms and conditions of the warranty. At the time of sale of the vehicle, the 2nd opposite party had given necessary instructions to the complainant regarding the mode of using the vehicle orally and by use of the visual media. The complainant purchased the vehicle after driving and testing the same after he was fully satisfied regarding the performance and quality of the vehicle. He had not raised any complaint regarding its quality or performance for the past more than 15 months after the purchase even though the vehicle was brought to the work shop of 2nd opposite party for periodic service as completion of 5000 kms. 15000kms and 25000kms. The vehicle was brought before the workshop of 2nd opposite party on 9.3.09 with a complaint of certain defects to the engine. On examination it was found that the engine of the vehicle was badly damaged due to gross negligence use of the vehicle against the specific instructions of the 1st opposite party. The deffects occurred due to over running of the engine and hence 2nd opposite party informed the complainant that he will have to pay the repair charges since it is not covered under the warranty. The complainant was convinced that the defect caused to the vehicle was due to negligent use of the vehicle and he agreed to pay the repair charges. Accordingly 2nd opposite party completed the repair by replacing all the defective parts with brand new parts. The total repair bill was `35000 and the vehicle was delivered on 20.3.09. The vehicle had run 37290 kms when it was brought to the workshop of 2nd opposite party. It is totally false to say that the vehicle had run only 13963 kms when it was brought before 2nd opposite party’s work shop. The entire replaced parts were handed over to the complainant. If the entire replaced parts that were handed over to the complainant are produced before the forum, it will be seen that the defects caused to the vehicle were not due to ordinary wear and tear, but due to the overrunning of the engine of the vehicle. After repair the vehicle is in it perfect running condition. So the complaint is liable to be dismissed. The 2nd opposite party also filed version with a contention that the complaint has filed this complaint suppressing material facts. The vehicle involved in the case was repaired as early as on 20.3.09. The complaint has not produced the operator’s manual in which warranty obligations are specifically stated. The 2nd opposite party admits that they are the dealer of 1st opposite party and the vehicle was purchased on 26.11.07. The vehicle was sold subject to the warranty issued by 1st opposite party and 2nd opposite party has not issued any warranty or guarantee in respect of the above vehicle. The 2nd opposite party is doing repairs under the warranty issued by1st opposite party. The 1st opposite party is bound to reimburse the cost of spares and labour charges to the opposite party in respect of all allowable warranty claims. In the case of the complainant, the defect caused to the vehicle were not allowable as per the instructions of 1st opposite party and hence he was informed that he will have to pay the repair charges if the vehicle is to be repaired. Since the manufacturer had issued specific written warranty the complainant is bound by the terms and conditions of the warranty issued by1st opposite party. The 2nd opposite party denied the averments that the vehicle was purchased on 23.11.07 and the vehicle had run only 13963 kms before the vehicle was taken to opposite party for repair. The 2nd opposite party is only a dealer of 1st opposite party and has no role in the manufacturing of the vehicle. The vehicle was sold to the complainant in the same condition in which it was supplied by the 1st opposite party. At the time of sale the 2nd opposite party had given necessary instructions to the complainant regarding the mode of using the vehicle orally and by the use of media. The complainant purchased the vehicle after driving and testing the same after he was fully satisfied regarding the performance and quality of the vehicle. He had not raised any complaint regarding its quality or performance for the past more than 15 months after the purchase of the vehicle. On examination it was found that the engine of the vehicle was badly damaged due to gross negligence use of the vehicle and he agreed to pay repair charges. So the repairs were completed by replacing all defective parts with brand new parts and a total repairs bill for `35000 and the vehicle were delvliered on 20.3.09. The vehicle had run 37290 kms. The defects caused to the vehicle were not due to ordinary wear and tear but duet o over running of the engine of the vehicle. And after repair it is in perfect running condition and hence the complaint is liable to be dismissed. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of oral testimony of PW1, DW1 and Exts. A1 to A14. Issue Nos.1 to 3 The complainant’s case is that his vehicle having NO.KL.58-A.3822 shows gross mechanical defect on 9.3.09 and took the vehicle to 2nd opposite party for repair and 2nd opposite party demands `70000 as repair charge. According to the complainant opposite parties have delivered the vehicle with substandard quality having fault, imperfection and hence he had suffered a lot on account of mechanical defect and hence opposite party is liable to replace the vehicle along with compensation. In order to prove his case he has examined as PW1 and produced documents like copy of lawyer notice dt.21.3.09, acknowledgement cards, reply notice, copy of ration card, interactive reception check sheets dt.16.4.08 and 9.3.09, Job card invoice dt.9.3.09, three in numbers, invoice dt.14.9.09 (2 in number) invoices dt.20.3.09 and 18.4.08 etc. The opposite party was also examined as DW1, in order to disprove the case of the complainant. The opposite party contended that the vehicle was entrusted for repair on 9.3.09 and paid `5000 as advance towards the repair charge on 14.3.09 and the defects caused to the vehicle is due to overrunning and is not covered by guarantee. The complainant even though contended that the vehicle has manufacturing defects, he has not taken any steps to prove that the vehicle has manufacturing defect. The complainant deposed before the Forum that “]Wn XoÀ¯-Xn-\p-ti-jT hn HmSp-¶p. Ct¸mÄ 50000 In.an hn HmSn-bn-«p-v. Ct¸mÄ hn¡v bmsXmcp ]cm-Xn-bpT CÃ. hn D]-tbm-K-iq-\-yamsW¶v A^n-Um-hn-än ]d-ªXv icn-b-Ã. So the above vehicle is now in working condition. But as per Ext.A8 interactive reception check sheet dt.9.3.09 the vehicle was entrusted to 2nd opposite party to check engine sound and as per this Ext.A8, the kilometers run by the vehicle is shown as 37290. It is true that the complainant has not produced the operator’s manual and the warranty supplied by the opposite parties. But the burden to disprove the case of the complainant is with the opposite parties. Even though they contended that the vehicles has no manufacturing defects and will prove this by producing the replaced parts which is handed over to the complainant, the opposite parties have not taken any steps to call for the above parties, the warranty card and the operator’s manual. More over opposite parties can very well produce a specimen copy of operator’s manual in order to convince the Forum, the warranty conditions. Above all opposite parties have no cases that the vehicle was repaired on 9.3.09 which is after the warranty period. The opposite parties only objection is that the defects which were repaired on 9.3.09 was caused due to the overrunning of the vehicle. Even though DW1 deposed to the effect that the defects were caused due to overrunning, it is not supported by expert’s opinion. So there is no expert opinion before us to show that the defects were caused as alleged by opposite parties. Even though they contended that on producing replaced spare parts before the Forum, it will reveal that the defect was caused due to over running, they have not taken any steps for cause production of the above said spare parts. The complainant deposed before the Forum that warranty {]Im-cT dn¸-bÀ sN¿m³ Ign-bnà F¶v 2þmT FXnÀI£n ]d-ªn-cp-¶p. Bb-Xn-\m dn¸-bÀ sN¿m³ 2þm-T-F-XnÀI£n ss]k Bh-i-y-s¸-«n-cp-¶p. But according to the complainant he has paid the amount to the 2nd opposite party on protest. This shows that he has grievance with respect to the ] amount received for the above repair on 9.3.09. Above all the DW1 deposed that hn-bpsS engine warranty 3 hÀj-am-sW¶v And-bm-T. 5 free service BWv. AsÃ-¦n 5000 apX 45000 In.-an. hsc 5 free service BWv sImSp-¡p-¶-Xv. So from Ext.A8 itself shows that the kilometer as on 9.3.09 is 37290. Admittedly the date of purchase is 23.11.07. So the above repair is within the warranty period itself. Ext.A7 is an interaction reception check list issued on 16.4.08. According to them there is a complaint of low pulling, white smoke as running and overheating and the A7 issued when the vehicle has run 13963 kilometers. So from the above discussion we are of the opinion that there is deficiency of service on the part of opposite parties 1 and 2 by receiving the amount which is incurred for repair on 9.3.09. As per Ext.A9 (1) invoice the amount shown is ` 35000. But as per Ext.A9 (2) and A9(3) the total amount incurred for spare parts is `26808 and the labour charge is `3120. So the complainant is entitled to get these amount ie. `29928 along with `1000 as cost of the proceedings and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to pay `29928 (Rupees Twenty Nine thousand Nine Hundred and Twenty eight only) along with `1,000 (Rupees One thousand only) as cost of the proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against opposite parties as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1. Copy of the lawyer notice sent to OP A2 & A3. Postal AD cards A4& A5. Reply notice sent by Ops A6. Copy of the RC vehicle NO.KL.58.A.3822 A7 & 8. Copy of the interactive reception check sheet issued by 2nd OP A10. Form 8 B (Retail invoice) issued by OP 14.9.09. A11. Credit receipt issued by Weldon Automobiles dt.20.3.09 A12 & 14.Form 8 B (Retail invoice) issued by OP dt. 20.3.09 and 14.9.09 and 16.4.08. Exhibits for the opposite party: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: DW1.Balaram.P.I /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
