This complaint coming up before us for hearing on 22-04-15 in the presence of Sri C.Narendra Babu, Advocate for complainant and Sri V.Krishnanand, Advocate for opposite parties 1&2, Sri G.Erukala Reddy, Advocate for 3^rd opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

          The complainant filed this complaint U/s.12 of the Consumer Protection Act seeking a direction to the opposite parties to replace new vehicle or to pay Rs.9,26,400/- together with interest @ 18%p.a. from 14-08-14 and to pay compensation of Rs.1,00,000/- towards deficiency in service and mental agony and for costs.   

2.      In nutshell the complaint averments are these:

The complainant on 14-08-14 purchased maxi cab of Chevrolet Tavera of ten seating capacity for Rs.8,65,000/- vide registration No .AP 07 TD 8268 and  incurred Rs.31,100/- towards insurance; Rs.23,300/- for extra fittings and Rs.7,000/- for the purpose of registration.  The complainant purchased the said vehicle to eke out his livelihood.  For the purpose of 1^st service the complainant handed over the said vehicle to the 1^st opposite party on        09-09-14.  When the complainant approached the 1^st opposite party on the same day for taking return  of his vehicle bearing No .AP 07 TD 8268, the 1^st opposite party informed that there was leakage of oil due to failure of gasket at engine and they informed that it may take two days time to replace new gasket.  Two days latter the complainant again approached the 1^st opposite party who in turn informed the complainant that there was a major repair which could not be rectified inspite of fixing gasket and informed the complainant to approach the 2^nd opposite party and the said car was sent to the 2^nd opposite party for rectification of defects.  The 2^nd opposite party informed the complainant that there was a problem in gear box and it has to be rectified by removing gear box and it may take two days time.  On 18-09-14 the complainant approached the 2^nd opposite party and paid Rs.674/- towards diesel charges.   The 2^nd opposite party informed that the condition of the vehicle was good and in case of leakage of oil the vehicle has to be brought to service station immediately.  Therefore the complainant was in dilemma whether to take back the vehicle or not.  The 2^nd opposite party did not deliver the vehicle and kept with them for observation.  The complainant in all traveled 1400 Kms only.  Due to defect in the vehicle the complainant was in fear whether the said vehicle can be used for transportation under maxi cab.  Failure of gasket in the engine and gear box is the major repair which occurred to the vehicle at the initial stage and the vehicle will have less life of the engine and such vehicles could not be used for the purpose of transportation of passengers.  The purpose of purchasing of new vehicle was thus defeated.  On 19-09-14 the complainant sent a letter to the 2^nd opposite party informing them that the vehicle delivered to him was a defective one and requested to deliver new vehicle or to return the amount paid by him. The 2nd opposite party though received notice did not respond.  The 3^rd opposite party is manufacturer of Chevrolet Tavera vehicles.  The conduct of the opposite parties in delivering defective vehicle amounted to deficiency in service.  The complaint therefore may be allowed.                   

3.      The 2^nd opposite party filed memo adopting the version of 1^st opposite party and their contention in brief is thus:

The complaint is not maintainable either in law or on facts.  The main defect of leakage of oil is perfectly rectified by giving full service by removing the required parts of the engine as the vehicle is within warranty period and the opposite parties did not charge any thing either towards labor or parts replaced.  The subject vehicle was kept in observation for considerable length of period and after conforming that there was no chance for leakage of oil the opposite parties 1&2 informed the complainant to take delivery of the vehicle.  At the ill advice of others the complainant approached this Forum to have unlawful gain as if there is a defect in the vehicle from inception.  The complainant without taking delivery of the vehicle and running the vehicle there is no meaning in making a claim alleging deficiency in service.  The opposite parties 1&2 did not commit any act amounting to deficiency in service.  The opposite parties are willing and ready to attend the defect in case of recurrence of same defect without charging any thing.  The opposite parties 1&2 did not receive letter dated 19-09-14.  Rest of the allegations contra mentioned in the complaint are all false and are invented by the complainant to suit his complaint. 

4.      The contention of the 3^rd opposite party in nutshell is here under: 

The complaint is not maintainable either in law or on facts.  The obligation under vehicle warranty is limited to the repair of new motor vehicle free of cost.  The warranty is limited to the extent of repair/rectify/replace of the defective part if any during the warranty period.  In the present case entire engine assembly in question has been changed free of cost.  The 3^rd opposite party did not commit any act amounting to deficiency in service.  After September2014 the complainant has not reported with any authorized notified service centre with any specific grievance/complaint.  Service centre of the 3^rd opposite party rectified the defect free of cost when brought to its notice. The vehicle did not suffer from any manufacturing defect.  The complaint is misconceived, frivolous and vexatious in nature but also an abuse of process of law.  The complaint therefore may be dismissed with exemplary costs.

5.       Exs.A-1 to A-14 on behalf of complainant and Exs.B1 to B-9 on behalf of the opposite parties 1&2 and Exs.B-10 & B-11 on behalf of 3^rd opposite party were marked.

6.  Now the points that arose for consideration in this case are these:

1.       Whether the complainant is a consumer?

2.       Whether the opposite parties committed deficiency in service?

3.       Whether the complainant is entitled for compensation?

4.       To what relief?

7.    Admitted facts in this case are these: 

a).   The complainant purchased AP 07TD 8268 on 14-08-14 from the 1^st opposite party.

b).   The complainant entrusted the vehicle to the 1^st opposite party on 09-09-14 for service who in turn handed over to the 2^nd opposite party on 18-09-14.     

       c).   The 3^rd opposite party is manufacturer of the subject cars. 

8.         POINT No.1:-   The registry while numbering the complaint took the following objection:

1.  The complainant purchased Maxi Cab of Chevrolet Tavera 10 seating capacity for his transport business.  Due to the manufacturing defect of the vehicle the complainant could not use for transportation of the passengers.  Explain how the complainant is come within the definition of Consumer U/s.2 (1) (d) of C.P.Act. 

     The counsel for the complainant represented that the complainant purchased the vehicle for his lively hood and he is depending upon the earning of the said vehicle only.     

9.         In page 2 of para 3 after the date 14-08-14 mentioned “by the complaint in his own name to eke out his livelihood”.  In a way the complainant wants to come under the purview of consumer pleading self employment.  The complainant filed chief examination in the form of affidavit on 12-01-15.  The relevant portion in chief examination of complainant filed on 12-01-15 is extracted below for better appreciation:

  “I submit that for the purpose of my transport business i.e., for passengers purchased a New Car manufactured by the 3^rd opposite party and which was sold through their dealer who is the 1^st opposite party and which head office is at Vijayawada i.e., the 2^nd opposite party”.

10.       The above extracted contents from the complaint and complainant’s affidavit thus differ. Ex.A-14 is complainant’s driving license and it disclosed that the complainant is having non transport driving license.  One has to possess transport license to run a transport vehicle.  It can be therefore inferred that the complainant has employed other person for doing his transport business.  The complainant in order to get the case numbered mentioned self employment though using the said car for his transport business.  The opposite parties though did not take such objection this Forum can consider this aspect as the registry raised the objection regarding maintainability of the complaint while numbering it.   The complainant‘s affidavit it self belied his version in the complaint regarding usage of vehicle for self employment.

11.    The learned counsel for the complainant contended that the defect occurred during warranty period and as such the complainant comes under the purview of consumer. In Peralite Liners Limited vs. M/s Thermo Jarrell Ash Corporation and another 2006 (1) CPR (NC) it was held that even though equipment was purchased for a commercial purpose if there was a defect or deficiency in service during warranty period buyer would be deemed to be a consumer. The complainant approached the opposite parties for service with in the warranty period admittedly. It can therefore be said that the complainant is a consumer under purview of the Consumer Protection Act.

12.    POINT NO.2:-   .  The learned counsel for the opposite parties contended that the burden of proving the subject vehicle suffered from manufacturing defect lies on the complainant.      In Classic Automobiles v/s Lila Nand Mishra & another 2010 (2) CPR 220(NC) it was held that the onus to prove that there was manufacturing defect lies on the complainant.

13.  In Krishna Pal Singh vs. Tata Motors Limited, Passenger Car business unit and another (2014 (3) CPR 110 (NC) it was held

“Before concluding, we must mention that although, the District Forums are quick in passing the orders in favour of the consumer, irrespective of the fact, whether the case of the complainant  is bolstered by cogent and plausible evidence, or not, yet the said forums never take the trouble to adhere to Section 13(1) (c ) of the C.P.Act.   If District Forums follow the law, most of the problems will come to an end.  If the consumer is to be helped permanently, the provisions enshrined in Section 13(1) (c) should be followed, strictly.  In that event, it would be easier for the fora to win now truth from falsehood.”

14.    In Maruthi Udyog Limited vs. Sushi Kumar Gabgotra (2006 (4) SCC 644) it was held that if the manufacturing defect was established then replacement of the entire item or replacement of the defective parts is only called for.

15.    In C.N. Anantha Ram vs. M/s Fiat India Limited and others etc., (2010 15 (ADDL.) S.C.R. 619) -  (Special leave petition (c) Nos. 21178-21180 of 2009 decided on 24-11-10) the Apex Court while confirming the order of the National Consumer Disputes Redressal Commission further directed that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle the petitioner/complainant will be entitled to refund of the price of the vehicle and the lifetime tax and EMI along with interest @12% p.a., and costs as directed by the State Commission.

16.    The complainant failed to establish manufacturing defect by adducing cogent evidence. Ex.A-9 disclosed that subject vehicle covered a distance of 1003 kms by 13-09-14 (Ex.A-8), 1005 Kms by 15-09-14 (Ex.A-10) and 1642 Kms (Ex.A-9) by 18-09-14. The complainant in page 3 of his complaint mentioned the following: 

“It is further submitted that the complainant in all use the vehicle for about 20 days and the kilometers he had traveled was only 1400 Kilometers and due to defect of the vehicle he was in a fear whether the vehicle can be used for transportation under Maxi Cab as the vehicle booked by the passengers will go for long drive and if any thing occurs he will be responsible for the loss of money or lives of the passengers.  The failure of the gaskut in the engine and gear box is the major repair which occurred to the vehicle at the initial stage will have less life of the engine and such vehicles could not be used for the purpose of transportation of passengers. 

The above contents of complaint revealed apprehensions of the complainant. Mere apprehensions in our considered opinion is not a substitute for proof as rightly contended by the learned counsel for the opposite parties. The opposite parties 1 & 2 in para 8 of their version categorically mentioned that they are ready and willing to attend the defect in case of recurrence in future free of charge.

17.    With out establishing manufacturing defect the complainant is not entitled either for replacement of vehicle or refund of price. For the above discussion we answer this point against the complainant.

18.    POINT NO.3:- In view of above findings on point No.1 the complainant is not entitled to any damages much less the amount claimed. We there fore answer this point also against the complainant.

19.  POINT NO.4:- In view of above findings the complaint is dismissed with out costs.

          Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 01^st day of May, 2015.

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties: 

                                                                                                                         PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.