<br /> Present: Sh. A.S.Sekhon counsel for the complainant.<br /> Sh. N.S. Roop counsel for the opposite party No.1.<br /> Sh. Rajneesh Garg counsel for opposite party No. 2.<br /> <br /> ORDER<br /> DHARAM SINGH PRESIDENT<br /> Karan Kataria complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to change the defective Fuel/Diesel Pump and Turbo Parts of the Engine and to pay Rs.34,350/- as costs of parts paid by the complainant and to pay Rs.34,000/- as trade loss and Rs.30,000/- as compensation for mental tension and unauthorized harassment. <br /> 2. The complainant averred in its complaint that the complainant had purchased one Ashol Leyland HGV-4018 from the opposite party No. 1 and taken the possession of the same vide delivery note dated 31.5.2006 vide G.P. No. 07. At the time of purchase of the above said vehicle the opposite party No. 1 had given warranty of the above said vehicle for 1-1/2 years or for 1,50,000 Kms. whichever occurs earlier, but only after done 30,125 Kms. at about 1.12.2006 the Fuel pump/Diesel pump of the said vehicle became defective. At that time the vehicle was at Bikaner and the claimant took the vehicle to Prakhar Motors, Sriganganagar Road, Bikaner authorised dealer/service centre of Ashok Leyland where the pump of the said vehicle was sent to Ramdev Motors, Bikaner and Ramdev Motors charged Rs.17,685/- from the complainant for removing the defect. However the Prakhar Motors gave a bill of Rs.15,460/- to the complainant but the work done was not up to satisfaction of the complainant and the vehicle stands still there for about one week as a result of which the complainant suffered a loss of Rs.14,000/- over and above the above expenses. The above said vehicle again in the same month became out of order, due to the said defects, the complainant and his driver took the vehicle to the Ashok Leyland authorised workshop in Gandhi Dham i.e. Auto Motive and the said authorised dealer sent the same Fuel Pump/Diesel Pump to Sri Ram Petroleum on 23.12.2006, in their job card the Sri Ram Petroleum gave observations about Distt. Head Camplat, Camshaft, T.D. Piston, Crossdisc, Roller Ring Assy., Roller, Oring, for Injector P1. Ref. No. 271506 and changed the above said parts including some other parts and in details of actifications Rs.18,890/- charged from party on total amount Rs.28,990/- as per 3. C No. 321. 33% discount given as per MR. Before that same FIP rejected in warranty on dated 2.12.2006 in Ramdev Motors and Bikaner as per bill No. 9458 Rs.15,460/- was charged. The vehicle stand still there for a period of ten days which is clearly shown from the bill given by Sri Ram Petroleum dated 28.12.2006, as a result of which the complainant suffered a sum of Rs.20,000/- and also paid a sum of rs.18,890/- for the costs of the parts. The complainant also made complaint about the Turbo parts to the opposite party no. 1 but the opposite party No. 1 paid no heeds to the complaints of the complainant. The complainant wants to gave written complaint regarding the Turbo parts but the opposite party No. 1 flatly refused to take that complaints. Due to the defects of the Turbo parts the pick up of the vehicle goes down and it consumers more diesel due to the defective pump as well as defective Turbo. The complainant asked the opposite party No. 1 many a time to change the defective diesel/fuel pump as well as defective turbo portion of the HGV-4018 vehicle but to no effect. Even after the complainant met the opposite party No. 1 personally and made the request to change the above said parts, but the opposite party No. 1 flatly refused and further told that they will not change the same and complainant should take any action anywhere they will not bother. The opposite parties has caused mental tension and said fuel/diesel pump and turbo parts are still defective and are not properly working and complainant suffered much loss. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 19.3.2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice, the opposite party No. 1 appeared through Sh. N.S. Roop Advocate and filed reply taking preliminary objections that the alleged vehicle was purchased from Bathinda and opposite party No. 1 carrying on his business at Bathinda and opposite party No. 2 carrying on its business at Chennai, as such this Hon'ble Forum has got no territorial jurisdiction to try and entertain the present complaint. The vehicle in question is commercial vehicle and it is also an admitted fact that the same purchased for commercial purpose through a driver employed for the same. As such the complainant does not become consumer nor does the alleged dispute come within the ambit of Consumer Protection Act. The main dispute raised by the complainant is regarding alleged defect in fuel injection pump which is a proprietary part of the truck which means the part which has not been manufactured by M/s Ashok Leyland rather the same was purchased by M/s Ashok Leyland from some other company. It has been specifically provided in the letter of warranty given to the complainant in the service folder that for proprietary parts not manufactured by AL the warranty terms of the respective supplier will be applicable. In this way the Fuel Injection Equipment being proprietary part was supplied by M/s Mico Bosch Group and as such the warranty for the same was not given even by the Ashok Leyland. Hence the said supplier is the necessary party to this case. So the complaint is bad for non joinder of necessary parties. The authorised dealer of M/s Mico Bosch Group had declared that the problem had occurred in the pump due to usages of adulterated diesel and ingenuine or non specific filters and usage of oil/lubrication of inferior quality in the vehicle so the complainant is debarred from laying any claim regarding the alleged demand or charges. M/s Siri Ram Petroleums Gandhi Dham who had allegedly charged the disputed amount from the claimant is also necessary party in this case. The complaint is not maintainable in the present form. The complainant has got no locus standi or cause of act to file the present complaint. There is no manufacturing defect in the truck in question or any part thereof and it appears that the driver of the complainant has not properly complied with and followed the instructions as detailed in the instructions book cum service folder and operator manual given to the complainant at the time of sale of truck. The complainant has not brought the truck for service or routine check up as per the schedule given in the service folder and failure to get the truck serviced on regular intervals would render the warranty of truck forfeited and non available. The complainant has not come with clean hands and concealed true facts from this Forum. There is no deficiency of service on the part of the answering opposite party nor the answering opposite party has caused any loss to the complainant. It is the manufacturer which gives the warranty and not the guarantee and at no time the answering opposite party has not given any guarantee or warranty of its own and as such the answering opposite party has been impleaded as party unnecessarily. The intricate questions of facts and law are involved in the present complaint as such complainant is liable to be relegated to seek his legal redress if any through the competent court of jurisdiction and law. The complainant has not produced documents in his possession like user manual of vehicle despite opposite parties application and have concocted false and after thought story. The complaint is false, frivolous and vexatious and deserves to be dismissed with costs. On merits the opposite party No. 1 submitted that the opposite party No. 1 is merely an authorised dealer and agent of the opposite party No. 1 for sale, spare and service of the vehicle of the opposite party No. 2 and as such there is no liability or responsibility regarding any manufacturing defect in the vehicle and the warranty for the same is being given only by the manufacturer thereof. It is mentioned in the warranty letter that the defective part should be returned to the nearest Ashok Leyland dealer workshop alongwith freight within 7 days. The obligation of AL under warranty shall be limited to either repairing or replacing free of charges such part of vehicle as are deemed to be defective in the opinion of AL and shall not extend to consequential losses and further that the replaced part shall become property of AL. For proprietary parts not manufactured by AL the warranty terms of the respective supplier will be applicable. The warranty become null and void if the vehicle is used in a way not recommended by the company, change of feature of vehicle, repair or dis-assemblement even partially of the vehicle by person not belonging to AL authorised workshop, use of unsuitable lubricant or adulterated fuel/diesel or oil or non genuine filters, spare parts and if the free services are not carried out within the time schedule as provided in the service folder/operator manual. The complainant had violated the terms and conditions of above said warranty and as such no liability can be claimed upon the opposite parties. The complainant has not reported the alleged defect of the fuel pump to the answering opposite party and answering opposite party has no knowledge if the complainant had met with any alleged problem at Bikaner or M/s Ramdev Motos charged Rs.17,685/- from the complainant. The vehicle in question is used for commercial purpose and is generally being plied in Rajasthan and Gujarat stated and not in Punjab. As and when the vehicle in question was brought the necessary entries were made in the register, job card was prepared and after doing the job the vehicle was delivered only on full satisfaction of the person who had brought the vehicle. When the complainant has not come to the answering opposite party with the alleged defects then how the complainant can allege that there was any rude behavior on the part of the answering opposite party. The complainant had not suffered any mental tension or alleged loss since the date of purchase of the vehicle. There is no deficiency of service on the part of the answering opposite party No. 1. Hence the complaint be dismissed with special costs as provided under Section 26 of the Consumer Protection Act. <br /> 5. On receipt of notice opposite party No. 2 appeared through Sh. Rajneesh Garg Advocate and filed written reply taking preliminary objections that the complainant does not come under the definition of consumer as defined under Consumer Protection Act. As admitted by the complainant said vehicle was purchased for commercial purpose, so the present dispute does not come under the purview of the Consumer Protection Act. The answering opposite party has its office at Chennai and is carrying on its business at Chennai so this Forum has no jurisdiction to hear and try the present complaint. The complainant has no cause of action nor the complaint discloses any cause of action. The complainant has no locus standi to file the present complaint. The present dispute as raised by the complainant is regarding the defect of fuel pump and diesel pump which comes under the definition of proprietary parts. The answering opposite party is not responsible for the proprietary parts i.e. the parts which are not manufactured by the answering opposite party. This fact has been mentioned in para No. 5 of the warranty card so given to the complainant in the service folder. In this case this para has been supplied by the Mico Bosch Group as such warranty for the same is not given by the answering opposite party. The present complaint is liable to be dismissed on account of non joinder and mis joinder of necessary parties. On merits the opposite party No. 2 submitted that the warranty shall become null and void if the user does not use the vehicle in that way recommended by the company and uses the lubricant and contaminated fuel or oil or spare parts and if does not get the vehicle serviced at proper time and proper place and does not maintain the vehicle properly. The complainant has violated the terms and conditions of the said warranty as such the answering opposite party is not responsible for the claims as made by the complainant. The complainant has not followed the instructions as given in the service manual as such the warranty becomes null and void. The complainant has used the contaminated fuel and the filter should be of coil type but it was found that filters were star type. The complainant has attached another diesel tank which is against the recommendations of the answering opposite party. The answering opposite party is not liable for any loss. The answering opposite party has not caused any mental tension or harassment to the complainant. There is no defect in the vehicle so purchased by the complainant. So there is no deficiency of service on the part of the answering opposite party. Hence the complaint be dismissed with special compensatory costs. <br /> 6. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, delivery note Ex.C-2, job cards Ex.C-3 and Ex.C-4, bill of Shri Ram Petroleum Ex.C-5, bill of Prakhar Motors Ex.C-6, bill of CD Motors Ex.C-7, bill of Aruna Motors Ex.C-8, diesel bills Ex.C-9 to Ex.C-24 and closed his evidence. <br /> 7. In order to rebut the evidence of the complainant the opposite party No. 2 tendered in their evidence affidavit of P.K.Goyal Senior Manager Service, Ashok Leyland Ltd. Corp. Ex.R-1, documents Ex.R-2 to Ex.R-4 and closed their evidence. Opposite party No. 1 tendered in their evidence affidavit of Jagjit Singh Deputy General Manager, Imperial Motors, Bathinda Ex.R-5, copy of regularly maintained register of vehicles incoming and outgoing in the compound of Imperial Motors area Ex.R-6, document Mark-A letter dated 24.1.2008 received from P.K. Dass Mico/CSM Delhi and closed their evidence. <br /> 8. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 9. Learned counsel for the complainant has submitted that there is manufacturing defect in the fuel pump and turbo parts of the Ashok Leyland truck purchased by the complainant from the opposite parties. The opposite parties have charged Rs.34,350/- at different times with regard to repair of the fuel pump. They have not changed the same despite repeated requests of the complainant, so the complainant is entitled to recover the above noted amount and change of the fuel pump and turbo parts. <br /> 10. Learned counsel for the opposite party No. 1 have taken plea that there is no manufacturing defect in the fuel pump and turbo system. The complainant have got repaired the truck from M/s Prakhar Motors, Bikaner and M/s Ramdev Motors as well as Sri Ram Petroleum, Gandhi Dham Gujarat and they have charged repair expenses in accordance with law. <br /> 11. Learned counsel for the opposite party No. 2 submitted that there is no manufacturing defect in the fuel pump and turbo parts of the vehicle. Vehicle is used for commercial purpose so he has no locus standi to file the present complaint. The opposite parties have not given warranty of the fuel pump which is manufactured by Mico Bosch Group. <br /> 12. Learned counsel for the opposite party has submitted that defect in the vehicle was due to use to contaminated fuel so complainant himself is guilty of not complying with the terms and conditions of the purchase and plying of the vehicle. <br /> 13. The complainant admittedly purchased Ashok Leyland truck from the opposite party No. 1 manufactured by the opposite party No. 2. As per pleadings of the opposite parties also the truck in question was got repaired by the complainant from the different workshops. The truck in question was purchased by the complainant from the opposite party No. 1 manufactured by the opposite party No. 2 on 31.5.2006. As per job card Ex.R-3 prepared by M/s Ramdev Motors, Old Power House Road, Bikaner on 5.6.2006 it is made out that there was a defect in the working of fuel pump and turbo system. As per the job card repaired report it is made out that the defect occurred due to fuel contamination. The vehicle was repaired by that workshop. They charged amount mentioned in the complaint. <br /> 14. The complainant also got repaired his vehicle from Sri Ram Petroleum, Gandhi Dham as per job card Ex.C-3 on 23.12.2006. Injector was found defective, it was repaired with the observations that Rs.18,890/- was charged from the parties on the total amount of Rs.28,990/- by giving discount of 33% as per Mr. Muniz Sir from Bombay and Mr. Mayur Sir from Rajkot from where the complainant have got repaired the truck. Before that same FIP rejected in warranty on 2.12.2006 in Ramdev Motors Bikaner as per bill No. 9458 of Rs.15,460/-. There is a bill Ex.C-5 dated 28.12.2006 prepared by Sri Ram Petroleum, Gandhidham for Rs.18,871/-. There is another bill Ex.C-6 for Rs.15,460/- prepared by Prakhar Motors, Sriganganagar Road, Bikaner dated 3.12.2006. There is another parts challan Ex.C-7 for Rs.2286/- prepared by CD Motors, Sri Ganganagar. Bill Ex.C-8 worth Rs.2170/- has been prepared by Aruna Motors, Sirohi Rajasthan. The above noted repairs have been made by the authorised agents of the opposite party No. 2 though at the first instance it has been reported that there was a defect in the fuel pump due to contaminated fuel but later on same defect was developed virtually fuel pump never worked in accordance with the norms given by the opposite parties at the time of the purchase of the truck by the complainant. The complainant had been suffering from time to time economically, physically and mentally due to the defective fuel pump and turbo system. Simple denial by the opposite parties is not helpful to them. So it is held that fuel pump and turbo system had manufacturing defect which so far have not been removed by the opposite parties. Even the opposite parties have not changed the fuel pump and turbo system. The opposite party No. 1 have placed on the file letter Mark-A by way of which the opposite parties written to Mr. Sanjay that they have no authorised dealer named M/s Punjab Diesel at Kotkapura. This letter is not helpful to the opposite parties.<br /> 15. From the above noted facts and circumstances it is made out that the opposite parties are not providing services to the complainant as required in the terms and conditions of the purchase of the vehicle by the complainant from the opposite parties. <br /> 16. Since complainant is resident of Faridkot and is plying his vehicle from Faridkot, so this Forum has got jurisdiction to try and decide the present complaint. <br /> 17. In view of the aforesaid facts and circumstances the complaint filed by the complainant is accepted. The complainant have spent the amount of Rs.34,350/- with regard to repair of the vehicle since fuel pump and turbo system are not working properly due to the manufacturing defect, so the opposite parties are directed to replace fuel pump and turbo system of the truck in question, pay the amount of Rs.34,350/- to the complainant which he has spent for repair of the fuel pump and turbo system and to pay compensation to the tune of Rs.30,000/- with regard to mental tension and harassment within the period of one month from the date of the receipt of the copy of this order, failing which the opposite parties are directed to pay the above noted amount of Rs.64,350/- alongwith interest at the rate of 12% per annum from the date of the decision of the complaint till the realization of the amount. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 4.4.2008<br /> <br />