| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA. CC. No.448 of 6-09-2012 Decided on 24-01-2013
Dinesh Kumar aged about 40 years S/o Sh. Ram Tirath R/o H.No.21406, St.No.5, Power House Road, Bathinda, ........Complainant Versus
IndusInd Bank Ltd., G.T Road, Bathinda-151001, through its Branch Manager. SJS Motors, Opposite Dewan Textiles, Roorke Road, N.H.58, Daurala, Distt. Meerut, Uttar Pradesh, through its Prop./Partner/Authorized Person. Krishna Motors, Mansa Road, Near Flyover, Bathinda, through its Prop./Partner/Authorized Person. CH Motors, G.T Road, Bye Pass, Near Police Post, Amritsar. Tata Motors Ltd., 26th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai, through its G.M.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President. Sh.Amarjeet Paul, Member. Smt. Sukhwinder Kaur, Member.
For the Complainant : Sh. Lalit Garg, counsel for the complainant For the Opposite parties : Sh. B.S. Ahluwalia, counsel for opposite party No. 1. Sh. Naveen Kumar, counsel for opposite party No. 3. Sh. S M Goyal, counsel for opposite party No. 5. Opposite party Nos. 2 & 4 exparte
O R D E R VIKRAMJIT KAUR SONI, PRESIDENT The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). In brief the case of the complainant is that he purchased one truck bearing registration No. PB-03X-9005 in the month of March 2011, manufactured by opposite party No. 5, from opposite party No.2 against warranty of 18 months from the date of purchase or 1,50,000/- kms. against the defects in the material and workmanship, whichever is earlier. The complainant had obtained a loan from opposite party No.1 for purchasing the said truck, it is hypothecated with opposite party No. 1 and the entire amount was transferred by opposite party No.1 from Bathinda to the opposite party No.2. The complainant alleged that he purchased the said truck for earning his livelihood. The truck started giving some trouble and the complainant took it to Krishna Motors i.e. opposite party No.3, the authorized service centre of the opposite party No.5 at Bathinda for checking the same but they did not provide him the required service and as such he was left with no other option and took it to Amritsar for repairs. On 18.5.2012 the complainant went to Amritsar where he got checked the problem of the said truck from opposite party No.4, the authorized service station of the opposite party No.5. After examining the said truck, the opposite party No.4 found CWP defective which they replaced and charged Rs.22,300/- despite the fact that the said truck was/is well within the warranty period. The bill No.118 dated 18.5.2012 given by the opposite party No.4 clearly shows that the said truck had covered only 79477 kms. mileage, which means the said vehicle is within the terms & conditions of the warranty given by the opposite party No.5. The complainant requested the opposite party No.4 not to charge the repair charges from him as the said truck is within the warranty, but they did not pay any heed to his requests. Thereafter the complainant telephonically requested the opposite party Nos. 2, 4 and 5 to refund the entire amount so charged, but to no effect. Hence the complainant has filed the present complaint seeking directions to the opposite parties to refund the amount of Rs. 22,300/- and pay him cost and compensation. The opposite party No.1 filed its separate written statement and pleaded that the complainant has purchased the vehicle in question bearing No. PB-03X-9005 after taking the loan from it, in this manner it has first charge against the said vehicle until and unless the entire loan is repaid by the complainant. The opposite party Nos. 2 & 4 despite service of notices have failed to appear before this Forum, hence ex-parte proceedings were taken against them. The opposite party No. 3 in its separate written statement pleaded that the complaint deserves dismissal as its name has wrongly been impleaded as Krishna Motors Mansa Road, Near Flyover Bathinda, whereas its actual name is Krishna Auto Sales and the opposite party No. 1 and 3 have been impleaded to create the jurisdiction. The complainant did not come to the opposite party No. 3 on dated 17-5-2012, rather he visited it on 26-06-2012 for the minor problem in the truck which was removed. The opposite party No. 5 filed its separate written statement and pleaded that the complainant has purchased the said vehicle from opposite party No. 2. The opposite party No. 5 is the renowned manufacturer of various types of commercial vehicles and passenger cars across the world and is widely acclaimed for its class and quality. The vehicles manufactured by it pass through stringent quality checks and road trials before the actual commercial production starts and the car and vehicles are marketed only after being approved by the Automotive Research Association of India. The opposite party No. 5 is ably supported by the excellent dealer ships/authorized service centers i.e. opposite party Nos. 2 to 4. These workshops provide scheduled services, running repairs, major repairs, spare-parts support and even carry out accidental repair to the commercial vehicles. The opposite party No. 5 has pleaded that the manufacturers of the vehicle and the vehicle owners are bound by the terms and conditions of the warranty policy applicable to the vehicles. As per the recommended service schedule, given in the Operator's service book, the owner of the vehicle is advised to follow certain guidelines for smooth and better performance of the vehicle. In the instant case, there were instances of maintenance and operational faults noticed by the opposite party during free servicing as well as on paid services when the complainant was advised to adhere to the instructions given in the owner's service book and manual for smooth and better performance of the vehicle, as the allegations of defects reported in the vehicle, were running problems. As per clause 1 of the warranty applicable for the subject vehicle, the warranty shall be limited for 18 months from the date of sale of the vehicle by their Works or their Regional Sales Offices or their sales establishments or their authorized dealers or 1,50,000 kms or 2000 hours of usage whichever is earlier subject to fulfillment of other terms and conditions of the warranty. The opposite party No. 5 has pleaded that the truck in question is being used by the complainant for commercial purposes, hence he is not consumer and he has failed to prove manufacturing defect by leading any expert evidence. The opposite party No. 5 has further pleaded that the complainant has purchased the vehicle in the month of March, 2011 from their dealer and the said vehicle had covered around 95599 Kms till 19-07-2012. This fact proves that the vehicle is in absolute roadworthy conditions and job carried out in the vehicle are minor and running repairs which were required to be carried out due to regular, continuous extensive and faulty usage of the said vehicle. The opposite party No. 5 cannot be held liable for any independent act and/or omission, committed by opposite party Nos. 2 to 4 as the relationship of the parties is on 'principal to principal basis.' The opposite party No. 5 has admitted that opposite party No. 4 changed Crown Wheel Pinion set (41/6) for Rs. 16,600/- against bill No. 118 dated 18-05-2012. The other consumable items like anabond, differential oil worth Rs. 4130/-, labour worth Rs. 1200/- etc., were charged from the complainant. The opposite party No. 5 provides warranty subject to certain terms and conditions. In case of any violation of any warranty terms, the warranty shall become null and void. In the present case, the crown wheel pinion was damaged due to negligent usage of the vehicle i.e. excessive load on the vehicle. The said part was not required replacement due to manufacturing defect rather the same got defective due to negligence on the part of the complainant, thus chargeable. This Forum has no territorial Jurisdiction to try and entertain the present complaint as the said vehicle was purchased from Meerut and utilized throughout India and no cause of action arose at Bathinda. The parties have led their evidence in support of their respective pleadings. Arguments heard. The record alongwith written submissions submitted by the parties perused. These are undisputed facts between the parties that the complainant purchased truck bearing registration No. PB-03-9005, manufactured by opposite party No. 5 from opposite party No. 2. He availed loan on the said truck from opposite party No. 1, hence the vehicle in question is hypothecated with opposite party No. 1. Some defects occurred in the vehicle in question which the complainant got removed from opposite party No. 4, for which it charged Rs. 22,300/- from him vide bill No. 118 dated 18-05-2012. The vehicle in question is within warranty period. The allegation of the complainant is that he purchased the truck in question in the month of March, 2011. The truck started giving some trouble, so he approached the opposite party No. 3 which is the authorized service Station of opposite party No. 5, but they did not provide the required service. So, he approached the opposite party No. 5 which is also the authorized service Station of opposite party No. 5. The opposite party No. 4 found CWP of the truck defective which they replaced, but they charged Rs. 22,300/- for the same whereas the complainant was not liable to pay any amount as the vehicle in question is within warranty. The submission of the complainant is that this fact itself is proved from the bill No. 118 dated 18-5-2012 issued by opposite party No. 4 which reveals that till date the truck had covered mileage of 79477 Kms. On the other hand, the submission of the learned counsel for the opposite party No. 5 is that there is no manufacturing defect in the vehicle in question. The opposite party No. 5 provides warranty subject to certain terms and conditions. In case of any violation of any warranty terms, the warranty shall become null and void. In the present case, the crown wheel pinion was damaged due to negligent usage of the vehicle i.e. excessive load on the vehicle. The said part was not required replacement due to manufacturing defect rather the same got defective due to negligence on the part of the complainant, thus chargeable. The opposite party No. 5 cannot be held liable for any independent act and/or omission, committed by opposite party Nos. 2 to 4 as the relationship of the parties is on 'principal to principal basis.' The opposite party No. 4 changed Crown Wheel Pinion set (41/6) for Rs. 16,600/- against bill No. 118 dated 18-05-2012 and the other consumable items like anabond, differential oil worth Rs. 4130/-, labour worth Rs. 1200/- etc., were charged from the complainant. The submission of the learned counsel for opposite party No. 5 is that this Forum has no jurisdiction to decide this complaint as the vehicle was purchased at Meerut. In support of his submissions, the learned counsel for opposite party No. 5 referred various authorities on different aspect of matters. Ex. C-5 is the photocopy of warranty card. Its relevant portion is reproduced hereunder :- “We warrant each Tata Diesel vehicle and parts thereof manufactured by us to be free from defects in material and workmanship, subject to the following terms and conditions : 1. This warranty, for the vehicle as a whole shall be for 18 months from the date of sale of the vehicle by our Works or our Regional Sales Office or our Sales Establishments or our authorized dealers or 1,50,000/- kms or 2000 hours of operation, whichever is earlier.” Ex. C-3 is the copy of bill issued by opposite party No. 4 vide which the vehicle in question has been repaired. A perusal of this document reveals that mileage of the vehicle in question on 18-05-2012, has been mentioned as “79477 Kms”. The opposite party No. 5 in para No. 7 of preliminary objections has admitted that till 19-07-2012, the vehicle in question had covered around 95599 Kms. Thus, the vehicle in question is within warranty as the warranty is provided upto 1,50,000 Kms. The opposite party No. 4 did not appear before this Forum despite service of notice. The opposite party No. 5 has taken a plea in para No. 7 on merits that the crown wheel pinion was damaged due to negligent usage of the vehicle i.e. excessive load on the vehicle, but the opposite parties have failed to prove, by leading cogent and convincing evidence on file, that the crown wheel pinion was damaged due to excessive use. Hence, in such circumstances, when the vehicle was within warranty period, charging the amount for repair/replacement of parts, amounts to deficiency in service on the part of opposite party Nos. 4 & 5 as the opposite party No. 5 is the manufacturer who provided the warranty and opposite party No. 4 is its authorized service centre. The opposite parties have raised objections that complainant is not consumer and this Forum has no jurisdiction to entertain and try this complaint as the vehicle in question has been purchased from Meerut. The opposite parties have not placed any document on file to prove that the vehicle in question is being plied for commercial purposes to earn huge profit whereas the complainant has specifically mentioned in para No. 2 of his complaint that he has purchased the said vehicle to earn his livelihood. The other objection of the opposite parties that this Forum has no jurisdiction is also not tenable as the opposite party No. 1 has admitted the fact that vehicle in question is financed by it. Moreover, as per Ex. R-2 & Ex. R-3 the said vehicle has been got serviced from opposite party No. 3 at Bathinda. With utmost regard and humility to the authorities relied upon by the learned counsel for the opposite parties, they are distinguishable on facts. In view of what has been discussed above, this complaint is accepted with compensation and cost of Rs. 5,000/- against opposite party Nos. 4 & 5 and dismissed qua opposite party Nos. 1 to 3. The opposite party Nos. 4 & 5 are directed to refund Rs. 22,300/- charged from the complainant vide Ex. C-3, to him.
The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, the interest @ 9% will yield on the amount of Rs. 22,300/- from the date of institution of this complaint i.e. 06-09-2012 till realization. A copy of this order be sent to the parties concerned free of cost and file be consigned for record.
Pronounced 24-01-2013 (Vikramjit Kaur Soni)
President
(Amarjeet Paul) Member
(Sukhwinder Kaur ) Member
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