DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 26^th day of March 2011

Present : Smt.Seena H, President

: Smt. Preetha.G.Nair, Member

: Smt. Bhanumathi.A.K, Member

Date of filing: 30/04/2009

(C.C.No.57/2009)

Kandankutty,

S/o.Late Ponnu,

Vennakkara House,

Puthupariyaram,

Palakkad. - Complainant

(By Adv.Remika.C)

V/s

1. General Manager

TMFL Calicut Branch

No.6/116 7-A IInd Floor

Arafa Complex

Cherooty Road

Calicut – 673 032.

(By Adv.Baburaj R)

2. General Manager

Tata Motors

Nanavathi Mahalaya

3^rd Floor, 18 Homimody Street

Mumbai – 400 001.

(By Adv.Baburaj.R)

3. Sakthi Automobiles

Sajena Complex

Coimbatore Road, Palakkad - Opposite parties

(By Adv.P.Sreeprakash)

O R D E R

By Smt.SEENA.H. PRESIDENT

Complaint in brief :

Complainant purchased a tipper from the 3^rd opposite party on 18/2/2008. At the time of purchase, the 3^rd opposite party made believe the complainant that the platform of the tipper is manufactured by 6mm iron. Complainant used the tipper for carrying sand. The grievance of the complainant is that platform of the vehicle became sag which according to the complainant is due to the defect of the vehicle. The matter was informed to the 3^rd opposite party who in turn promised the complainant that the matter will be intimated to the manufacturing Company and steps will be taken to cure the defect. Even after repeated requests none of the opposite parties has taken any steps to cure the defects. On 29/2/2008 onwards complainant is not in a position to use the vehicle for carrying sand and hence not able to repay loan taken from TATA Motors Finance Ltd. Due to the defect of the platform of the vehicle, complainant was put to great financial loss and mental agony. Complainant caused a lawyer notice dated 25/2/2009 to all opposite parties. Though opposite parties 1 & 2 received notice, no reply was sent. Notice against 3^rd opposite party returned with endorsement “address incomplete”. Hence the complaint. Complainant prays for replacement of the vehicle or else pay the price of the vehicle along with compensation of Rs.1,50,000/- and cost of the proceedings.

All opposite parties filed their written version. Opposite parties 1 & 2 has made a general denial of the allegation of the complainant. It is further submitted that the complainant has availed a loan of Rs.7,30,000/- from the opposite party No.1 for the purchase of the vehicle and the defect free and sound vehicle was handed over to the complainant. According to opposite party 1 & 2 there is no deficiency in service on their part.

3^rd opposite party admitted the purchase of tipper lorry. It is submitted by 3^rd opposite party that they have explained to the complainant about the different type of tippers. That the light duty tipper is cheaper than the heavy duty tipper. That the load carrying capacity is also different for the two vehicle. It is submitted that the light duty tipper can carry more load, but there is specific restrictions as regards to the materials to be carried. The load advised for the vehicle is sand, metal, jelly, soil and such other soft material. In light duty vehicle the thickness of the sheet used will be lesser when compared to heavy duty tipper. If the same is loaded with heavy materials like granite, it may cause damage to the platform. 3^rd opposite party submits that complainant has selected a light duty vehicle after understanding all these aspects. It is contented that as per the available information of 3^rd opposite party, the vehicle was used for loading and transporting heavy granite boulders using excavator. While loading heavy granite boulders using excavators boulders will fall from a height of at least 5 feet with force to the platform. Light duty vehicle may not withstand such heavy loading methods. The vehicle purchased by the complainant as well as every vehicle possess the prescribed standard qualities. According to 3^rd opposite party, the damage caused to the vehicle is only due to the improper use of the vehicle. Hence the complaint is liable to be dismissed.

The evidence adduced by the complainant consists of the chief affidavit and Ext.A1 to A5. Opposite party 1 & 2 has not filed any chief affidavit. Opposite party 3 filed chief affidavit and Ext.B1 to B3 marked on their part. Commission Report marked as Ext.C1 and C2.

Issues for considerations are

1. Whether there is any manufacturing defects in the vehicle supplied to the complainant ?

2. Whether there is any deficiency in service on the part of opposite parties ?

3. If so, what is the relief and costs complainant is entitled to ?

Issue 1 & 2

The definite case of the complainant is that he purchased a tipper lorry from 3^rd opposite party on 18/2/2008, which turn out to be a defective one within 10 days from the date of purchase. According to the complainant he was not in a position to use the vehicle from 29/2/2008 onwards. The platform of the vehicle which the opposite party made believe the complainant to be made up of 6mm iron became sag when used.

According to opposite party 3, complainant has purchased the light duty vehicle after clearly understanding its peculiarities. The defects if any caused to the vehicle is due to the improper use of the vehicle in a rash and negligent manner.

We have gone through the rival contentions of both parties and the evidence on record.

Purchase of the vehicle from 3^rd opposite party is admitted. The allegation of the complainant that 3^rd opposite party made believe the complainant that the platform of the vehicle is made up of 6mm iron is not proved. The say of the 3^rd opposite party that the vehicle purchased is a light duty one is not disputed by the complainant. There is no evidence before Forum as to the purpose for which the vehicle was used or whether it was used in a rash and negligent manner. The contention of opposite parties that every vehicle pushed to the market is after satisfying the requirements of ARAI, which is the research institution of the Automotive industry and hence free from defects cannot be taken for granted. If that be the case there will not be any consumer cases at all.

Two commission reports Ext.C1 & C2 is before the Forum. As per Ext.C1 commissioner has stated that the platform, back door and side body is of 3.66mm thickness. 3^rd opposite party raised objection on the said noting of the complainant and the report was remitted back to the commissioner for noting the exact measurement of the platform which according to Ext.C2 is submitted that the thickness of the platform cannot be measured using conventional thickness measuring instruments. Complainant has not taken any further steps in this respect. Apart from the said noting, the other defects noted by the commissioner is as follows :

1. There were dents and buckling of the plate at many places in the platform

2. Back door is totally bent and the automatic locking mechanism is not working

3. Side body bent at many places

4. The frame which supports the loading box on the mounting on the chassis had failed during material transportation

The defects as to the back door, side body and the frame is no where pleaded in the complaint. Further according to the complainant, he has purchased the vehicle on 18/2/2008 and from 29/2/2008 onwards itself complainant was not in a position to use the vehicle, i.e. within 10 days from the date of purchase. Ext.A5 which is the permit issued to the complainant shows that the same is issued to the complainant on 29/2/2008, the date according to complainant he was not able to use the vehicle anymore. This raises a genuine doubt as to the truth of the pleadings of the complainant. More over there is no concrete evidence as to the defects as alleged by the complainant.

In view of the above stated facts and circumstances of the case, we are of the view that complainant miserably failed to prove a case in his favour.

In the result complaint dismissed.

Pronounced in the open court on this the 26^th day of March 2011.

Sd/-

Seena H

President

Sd/-

Preetha G Nair

Member

Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Copy of Regd.letter sent by the complainant to the opposite party

dated 25/2/09

Ext.A2 – Acknowledgement card returned from 1^st and 3^rd opposite parties.

Ext.A3 – Regd.notice returned from the 2^nd opposite party.

Ext.A4 – Copy of R.C. Of the vehicle.

Ext.A5 – Copy of Goods Carriage Permit issued to the complainant by Motor

vehicle dept. Palakkad

Exhibits marked on the side of the opposite parties

Ext.B1 – Copy of letter dated 29/5/07 from Transport commissioner Trivandrum

to Dy.Transport Commissioner.

Ext.B2 – Copy of ARAI Certificate of the vehicle

Ext.B3 – Copy of Technical specification of vehicle issued by Tata Motors.

Court Exhibits marked

Ext.C1 – Commissioner Report of B.Rajesh Menon

Ext.C2 – Commissioner Report of B.Rajesh Menon