KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS.451/10, 582/10 & 184/11
COMMON JUDGMENT DATED:02-07-2011
PRESENT
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
APPEAL NOS.451/10
The Manager,
Geo Motors, Vyttila, : APPELLANT
Kochi-19.
(By Adv:Sri.K.P.Santhamma)
Vs.
1. K.Madhusoodhanan Pillai,
Cheruvattil, Muthukulam (North) P.O,
Alappuzha – 690 560.
(By Adv: Sri.Rajan.P.Kaliyath & C.S.Rajmohan)
: RESPONDENTS
2. M/s Hindustan Motors Ltd.,
Post Pithampur, Sector III,
Sagor 454774, Dist Dhar,
Madhyapradesh Rep. by Chairman and
Managing Director.
(By Adv:Sri.Kalkura)
APPEAL NOS.582/10
M/s Hindustan Motors Ltd.,
Post Pithampur, Sector III,
Sagor 454774, Dist Dhar,
Madhyapradesh
Also at : APPELLANT
Hindustan Motors Limited, having its
Regd office at 9/1, R.N.Mukharjee Road,
Kolkatta – 700 001, West Bengal.
(By Adv:Sri.Kalkura)
Vs.
1. K.Madhusoodhanan Pillai,
Cheruvattil, Muthukulam (North) P.O,
Alappuzha – 690 560
(By Adv: Sri.Rajan.P.Kaliyath & C.S.Rajmohan)
2. The Manager, : RESPONDENTS
Geo Motors, Vyttila,
Kochi-19.
(By Adv:Sri.K.P.Santhamma)
APPEAL NOS.184/11
K.Madhusoodhanan Pillai,
Cheruvattil, Muthukulam (North) P.O,
Alappuzha – 690 560. : APPELLANT
(By Adv: Sri.Rajan.P.Kaliyath & C.S.Rajmohan)
Vs.
1. The Manager,
Geo Motors, Vyttila,
Kochi-19.
(By Adv:Sri.K.P.Santhamma) : RESPONDENTS
2. M/s Hindustan Motors Ltd.,
Post Pithampur, Sector III,
Sagor 454774, Dist Dhar,
Madhyapradesh
(With Regd. Office at 9/1,
R.N.Mukherjee Road,
Kolkatta-700 001) Rep. by Managing Director.
(By Adv:Sri.Kalkura)
COMMON JUDGMENT
JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT
The appellant in A.451/2010 is the 1st opposite party/dealer and the appellant in A.582/10 is the 2nd opposite party/manufacturer and the appellant in A.184/11 is the complainant. The above 3 appeal are with respect to the same order in CC.130/07 in the file of CDRF, Ernakulam.
2. The opposite parties 1 and 2/dealer and the manufacturer are under orders to pay a sum of Rs.4,36,500/- to the complainant towards the damages with interest at 9% from the date of the order.
3. It is the case of the complainant that he purchased a HM Cosmo Passenger vehicle from the opposite parties for a sum of Rs.4.85 lakhs on 22/3/2005 for using as contract carriage. It is alleged that after few weeks the vehicle used to stop midway. The passengers had to be taken in another vehicle to the destination. Within a span of 10 months 5 breakdowns occurred. The vehicle could not be plied properly. The customers are hesitant to hire the vehicle. The opposite parties advised to replace the gear box and clutch assembly of Mahindra vehicle. The complainant had availed a loan of Rs.4.2 lakhs from KTDFC to be repaid in 84 monthly instalments at the rate of Rs.6,757/-. The complainant could not repay the loan amounts. He has sought for return of the price of the vehicle Rs.4.85.lakhs and compensation of Rs.1.lakh.
4. The 1st opposite party/dealer has denied the allegations. It is contended that for months after purchase there was no complaint at all. When it was brought for first service on 28/4/2005 the vehicle had run 3107 Kms. Altogether the vehicle was brought to the opposite party for 5 times. After running 8289 Kms, break setting, clutch setting, gear level, ply correction etc were done. Whenever vehicle was brought to the opposite party proper repairs were done. It is also contended that the 1st opposite party being a dealer cannot be made liable. It is also alleged that the road conditions and inexperienced driving has caused the defects of the vehicle.
5. The 2nd opposite party/manufacturer has contended that whenever the vehicle was brought for repairs the repairs were done properly. There were only minor complaints raised during the warranty period and the same were rectified.
6. The evidence adduced consisted of the testimony of PW1, Exts.A1 to A5, Exts.B1 to B5 and Ext.C1.
7. We find that the commissioner who is a retired Regional Transport Officer has noted in Ext.C1 that the gear box and the clutch assembly is not suitable to the particular vehicle. It is having an engine of 3330 CC. It is pointed out that clutch and gear box are made for an engine capacity of 1489 CC. He has suggested replacing of the gear box and clutch assembly with that of Mahindra and Mahindra. Only the 1st opposite party/dealer has filed an objection to the Commission Report alleging for the observation of the commissioner is not correct.
8. The opposite parties have produced Exts.B1 to B5 job cards. The same are up to 28/11/2006 starting from 28/4/2005. The complainant has also produced Ext.A5 series of bills and service records of the services done at the service centre of the 1st opposite party/dealer. On an examination of Ext.A5 series we find that the amounts spent by complainant for repairs is not that much considering the fact that it is used as a contract carriage. All the same we find that defects to the clutch assembly and gear had to be attended more than once. There was also break down once or twice as per Ext.A5 series. Altogether the vehicle has run a distance of 39,000/- Kms. as per the affidavit of the complainant. Evidently the vehicle has got inherent manufacturing defects in view of the findings in Ext.C1 commission report. The manufacturer/OP2 has not filed even an objection to Ext.C1 commission report. The opposite parties have also not adduced any expert evidence to contradict Ext.C1 report. It is also in evidence that 2nd opposite party/manufacturer have stopped manufacturing the particular type of vehicle. It is evident from the observation of the expert commissioner in Ext.C1 report that frequent problems is likely as the gear box and clutch assembly is not suitable to the particular vehicle which is run on diesel. The complainant could have faced much difficulty in maintaining the vehicle. It has also to be noted that the complaint is filed after 2 years of purchase and the vehicle has plied admittedly to an extent of 39,000 Kms. In the circumstances we find that the direction of the Forum to refund Rs.4,36,500/- with interest at 9% appears excessive. Hence the order of the Forum is modified to the extent that the opposite parties would be liable to pay a sum of Rs.3,50,000/- to the complainant with interest at 7% from the date of the order of the Forum. Being a manufacturing defect, the responsibility is mainly on the manufacturer. The dealer also cannot be absolved as it is on the representation of the dealer that the complainant would have purchased the vehicle and the dealer is also getting profits in the sale of the vehicle. Being a manufacturing defect the ultimate liability is that of the manufacturer. Hence the complainant may realize the amounts from the opposite parties jointly or from any of the opposite parties and the 1st opposite party/dealer will be at liberty to realize the amount if paid by the dealer from the manufacturer. If the amount is paid by the dealer, the dealer can execute this order against the manufacturer also. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 2/7/2011, the date of this order. The complainant will hand over the vehicle to the opposite parties after receiving payment as ordered by this Commission.
In the result appeals-451/2010 & 582/2010 are allowed in part as above and 184/2011 is dismissed.
Office will forward the LCR along with a copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU: PRESIDENT
VL.
