SRI. K. ANIRUDHAN (MEMBER)
Filed on 27.03.2006
Sri. Basharudheen P.M. has filed this complaint on 27.3.2006, alleging deficiency in service on the side of the opposite parties. The allegations are as follows:- The 2nd opposite party had assured him that the Model 2004 LP 1109 TC 42, Type 497 TC 85 Bus chasis has no mechanical defects and on the further assurance of the 1st and 2nd opposite party regarding the overall performance of the said vehicle, he had given cheque for Rs.5,88,700/- to the 2nd opposite parties as the price of the said model bus chasis on 16.12.2004 and as such the 2nd opposite party delivered the bus chasis bearing No.416242 AVZ 201117 Engine No.497 TC 85 AVZ 102070 on 9.2.2005 as Life Line body builders, Punnapra, Alappuzha. Body of the vehicle was built and registered through R.T.O., Alappuzha vide Regn. No.KL/4.P.7873. For this purpose he spent a total sum of Rs.2,88,000/- and obtained fitness certificate on 9.5.2004. But contrary to the assurance of the opposite party, the vehicle produced heavy sound on its rear housing and also suffered shivering of the body in movement. He had intimated the defects to the 2nd and 3rd opposite parties and the defects were noted in the service book at the time of first service. As per the direction of the Service Engineer, the workers of the 3rd opposite party checked the parts at three times and crown and pinion were replaced. But the sound and shivering defects were continued. Before completing 4000km., the clutch rod of the vehicle became looses. When intimated the same, the 3rd opposite party made some temporary arrangement and till time the said defects was not cured. After 8th service, since, the oil consumption has increased abnormally. He intimated this defect to the 3rd opposite party. The Service Engineer had repaired the inject pump and engine and replaced the parts of the pump and engine twice, after colleting Rs.2000/- from him. Due to the above work, diesel in the tank worth Rs.4,500/- and oil worth Rs.1,100/- wee spoiled. The said vehicle has no service due to the defect of wiper body nuts, work of rear housing and inject pump. Even now, the defects are still subsisting and 3rd opposite party has not shown any earnest effort to cure the defects in an effective manner. He has learnt that the 2nd opposite party had issued only 2003 Model chasis instead of 2004 model. He had sent lawyer notice stating the whole facts and for relief. On 17.1.2005 he got reply notice stating that they will look into the merits of the matter. But he has not get any relief so far. Hence this complainant for getting a total sum of Rs.10,07,098/- under various heads, from the opposite parties except 6th opposite party.
2. Notices were issued to the parties. Opposite parties entered appearance before this Forum and filed detailed version.
3. In the version of the opposite parties 1st , 4th and 5th it is stated that the complainant had purchased the bus chasis of the commercial purpose. It is stated that the complainant had personally inspected the vehicle and had been satisfied with the same. They had delivered 2004 model to the complainant and denied the statement regarding the delivery of Model 2003. They had inspected the complaint of abnormal noise from the rear axle and found that the propeller shaft alignment and crown wheel pinion back lash were in order and complainant had convinced that and taken delivery without raising any complaint. 3rd opposite party had subsequently replaced the CWP free of charge at 26948 kms. and noise as pointed out by the complainant were checked and found that it was within permissible limit. The 3rd opposite party had also replaced the clutch rod and free of charge. In connection with the replacement of feed pump assembly, the 3rd opposite party had provide 3 Ltrs. of engine oil and fuel filter free of cost to the complainant and that the complainant is liable to pay Rs.2000/- only for 40,000 km. service. It is stated that the 3rd opposite party had replaced the wiper motor and released the vehicle immediately and the complainant was operating the vehicle smoothly. Regarding the complaint of the noise level of the vehicle, the 3rd opposite party had replaced the CWP along with Rear Propeller shaft and complainant had expressed satisfaction of the said work; and after having piled the vehicle for 103430 kms., the complainant had no complaint with regard to any sound from the rear axle, and the 3rd opposite party had done the effective repair works of sound from the rear axle, and they have attending the work of repair as well as oil charges on 1.10.2005, 19.10.2005, 15.11.2005 and 28.12.2005. On 4.4.2006 the 2nd opposite party attended the work of gear box and the complainant had taken vehicle after expressing satisfaction of the vehicle. It is further stated that there is no unfair trade practice or deficiency in service on their part.
4. In the version of the 2nd opposite party, it is stated that the complainant had purchased the bus chasis for commercial purpose, engaging paid service and he had inspected the vehicle and had been satisfied; and stated that the letters VZ in the chasis No. stands for a 2004 Model vehicle as appeared by the transport authorities, and denied the allegation of the supply of 2003 Model vehicle. It is stated that the complainant after taking the delivery of the chasis from them had not brought the vehicle to their work shop either at Alappuzha or at Kochi. It is further stated the complainant had not suffered any loss or damage and there is no unfair trade practice.
5. The 3rd opposite party in their version has stated that the said purchase of the vehicle comes within the purview of commercial purpose. It is stated that they have thoroughly checked the vehicle and found that every thing was in good condition and they have replaced the CWP as per the request of the complainant. They have replaced feed pump assembly and the entire system of wiper was rectified through Lucas; TVS; and that they have retightened the rear axils flange nut and lubricated the centre joint. It is further stated that the complainant had not raised any complaint at the time of routine servicing and check ups and oil changing.
6. In the version of the 6th opposite party, it is stated that the matter is to be decided through arbitrator and that the complainant is not a consumer, and he has no cause of action against them, and the cause of action, alleged is not true and malafide.
7. Considering the rival contentions of the parties, this Forum has raised the following issues for consideration:-
(1) Whether there is any deficiency in service on the part of the opposite parties?
(2) Regarding compensation and costs.
8. Issues 1 and 2:- Complainant had filed proof affidavit and produced documents in evidence. Exts.A1 to A22 marked and he has been examined and cross examined by the opposite parties. Ext.A1 is the Advocate notice dt. 23.11.2004 to the opposite parties requesting to settle the allegations and for getting relief. Ext.A2 to A10 are the acknowledgement cards. Ext.A11 is the reply notice of the Advocate notice denying the allegations of the complainant. A12 and A13 are the Advocate notice dt. 1.1.2005 sent by the complainant to the opposite parties. Ext.A14 is the certificate dt. 24.11.2006 from the Village Officer stating the identity of the complainant. Ext.A15 is the certificate dt. 21.5.2008 of the Executive Officer, Motor workers welfare fund stating that the complainant is the registered owner and driver of the schedule vehicle and he is remitting the welfare fund. Ext.A16 is the invoice of the 4th opposite party stating the price of the chasis. Ext.A17 is the photo copy of the RC book of the said vehicle and the details of tax remittance and licence of the complainant. Ext.A18 is the temporary permit in respect of the schedule vehicle and tax invoice. Ext.A19 is the tax invoice of M/s.Paramount Autozone. Ext.A20 series are the tax invoices of the opposite parties and cash bills. Ext.A21 series are the bill of M/s. Popular Mega Motors and cash bills in connection with the works conducted for the said vehicle. Ext.A22 is the operator’s service book in respect of the vehicle (record of service provided by the opposite parties).
9. Opposite parties filed proof affidavit in support of their case and filed one document. Ext.B1 is the copy of the certificate issued by the Automotive Research Association of India. It shows the code of month of production and year of production of the vehicle. Expert Commissioner was appointed in this case. He has filed 2 reports regarding the overall performance of the vehicle. The report was marked as X1 and the expert commissioner was examined as PW2. The 1st report shows that while running they recognized the disordering sound because of the frame breakage heard from the front and near side of the stage carrier, and oil leaking was observed on inspection. The report further shows that the complainant produced another stage carrier bearing Reg. No.KL 04/P 7441 and give a comfortable journey where as the schedule vehicle bearing No.KL 04/P 7873 while in traveling given an uncomfortable journey. The second report of the expert commissioner shows his observation regarding the vehicle.
10. We have fully examined the entire matters of this case and perused the evidences, produced by both sides, and studied the depositions of the both parties and expert commissioner in detail. It can be seen that the complainant had purchased the chasis of the buses for his livelihood on the assurance of the opposite parties regarding the overall performances of the chasis, for a sum of Rs.5,88,700/-. It is alleged that after completing the required work of the body, the vehicle produced heavy sound on its rear housing and also suffered shivering of the body while in the movement. In connection with the several defects of the vehicle, the complainant spent substantial amounts and the opposite parties had conducted service for the vehicle. But the mechanical defects have not fully rectified. For this, several services of the said bus were cancelled and it is further alleged that he has sustained monetary loss and so far the defects are still existing. The expert commissioner has also stated the defects through his observation in his second report. After considering the entire evidence, facts and circumstances of this case, and after the perusal of the evidence, deposition and CR (Ext.X1), we are of the strong view that the allegations raised by the complainant against the opposite parties are to be treated as genuine. The whole facts of this matter shows that there is deficiency in service and negligence on the part of the opposite parties at the time of delivery of the chasis to the complainant and at the time giving services to the said vehicle. The opposite parties have not shown any sincere attempt to rectify the major mechanical defects of the vehicle. This shows the irresponsible attitude of the opposite parties and it shows their unfair trade practice and so opposite parties are liable to pay compensation and costs to the complainant. So, after considering the whole facts and circumstances of this matter, we are of the strong view that the complainant is to be allowed.
In the result, we hereby direct the opposite parties 1 to 5 to pay a sum of Rs.2 lakhs (Rupees two lakhs only) to the complainant as compensation for his monetary loss, mental agony, sufferings, inconvenience, loss of business and physical strain due to the deficiency of service, negligence and unfair trade practice of the opposite parties by giving wrong assurance regarding the over all performance of the chasis and negligence to rectify the major defects fully alleged by the complainant in time, and further directed to pay a sum of Rs.2,000/- (Rupees two thousand only) as costs of this proceedings. We further directed the said opposite parties to pay the amounts to the complainant within 30 days from the date of receipt of this order.
Pronounced in open Forum on this the 30th day of July, 2009.
Sd/- Sri. K. Anirudhan :
Sd/- Sri. Jimmy Korah:
Sd/- Smt.N.Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
PW1 - P.M.Basheerudheen (Witness)
PW2 - Chandrasenan Nair.H. (Witness)
PW3 - Yusuf.E. (Witness)
Ext.A1 - Advocate notice dt. 23.11.2004 to the opposite parties
Ext.A2 to A10 - Acknowledgement cards
Ext.A11 - Reply notice of the advocate notice
Ext.A12 & A13 - Advocate notice dt. 1.1.2005 sent by the complainant to the opposite parties
Ext.A14 - Certificate dt. 24.11.2006 from the Village Officer
Ext.A15 - Certificate dt. 21.5.2008 of the Executive Officer,
Motor Workers Welfare Fund
Ext.A16 - Invoice of the 4th opposite party
Ext.A17 - Photo copy of the RC book of the said vehicle
Ext.A18 - Tax invoice
Ext.A19 - Tax invoice of M/s.Paramount Autozone.
Ext.A20 series - Tax invoices of opposite party and the Cash bills
Ext.A21 series - Bills of M/s.Popular Mega Motors and cash bills
Ext.A22 - Operator’s Service Book in respect of the vehicle
Ext.X1 - Commission report
Evidence of the opposite parties:-
RW1 - Biju Joseph (Witness)
RW2 - Monsy George (Witness)
Ext.B1 - Copy of the Certificate issued by the Automotive
Research Association of India
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:-pr/-
Compared by:-
