KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.169/2001 JUDGMENT DATED 7.4.2010 PRESENTSMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER 1. The Manager, Sakthi Automobiles, Thana Road, Kannur. 2. The Manager -- APPELLANTS Sakthi Automobiles Meenchanda, Kozhikode – 10. 3. Sales Manager, TELCO, 28th Floor, Centre No.1,World Trade Centre, Cuffe Parade, Bombay. (By M/s Joseph & Kurian) Vs. Krishnan V, Veliyath House, Paravanthatta P.O, Koram, -- RESPONDENT Payyanur. (By Adv. S. Renganathan) JUDGMENT M.V.VISWANATHAN,JUDICIAL MEMBER Appellants were the opposite parties 1 to 3 and the respondent was the complainant in OP.295/97 on the file of CDRF, Kannur. The complaint in the said OP.295/97 was filed alleging deficiency in service on the part of the opposite parties in their failure to replace the defective chassis of the vehicle which was purchased by the complainant from the opposite parties. The complainant has also claimed compensation to the tune of Rs. 600/- per day from 20.6.97 on the ground that he suffered financial loss. The complainant has also alleged manufacturing defect in the chassis fitted for the vehicle (Mini Lorry) which he had purchased on 17.3.96 from the opposite parties. 2. At the first instance, the complaint was filed against opposite parties 1 and 2, the dealer and service center of the vehicle manufactured by Tata Engineering and Locomotive Company Ltd. On the basis of the contentions raised by the opposite parties 1 and 2 in their written version the supplemental third opposite party, the Sale Manager, Telco, Bombay was impleaded vide the order dated 16.3.98 passed by the forum below on the application for impleadment. 3. The opposite parties 1 and 2 filed a joint written version denying the alleged deficiency in service. They contended that the Forum below has no territorial jurisdiction to entertain the complaint as no cause of action has arisen within the territorial limits of the CDRF, Kannur. They also denied the alleged manufacturing defects and submitted that as per the terms of the warranty, the defect noticed cannot be rectified under the warranty. It is further contended that the bolts of the chassis were loose and rubber pad on 2 mounting brackets were missing and it resulted in developing cracks on the chassis. Thus, the opposite parties prayed for dismissal of the complaint. 4. The supplemental third opposite party filed written version adopting the very same contentions taken by opposite parties 1 and 2 and requested of the dismissal of the complaint. 5. Before the forum below, the complainant was examined as PW1 and witness on his side was examined as PW2. Exts.P1 to P6 documents were also marked on the side of the complainant. From the side of the opposite parties works manager of the first opposite party was examined as DW1. Exts.R1 to R5 documents were also marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 22nd May 2000 directing the opposite parties to replace the chassis of the Mini Lorry of the complainant with a new one and to pay compensation for deficiency in service at the rate of Rs.2500/- per month from 20.6.97 till the date of replacement of the chassis. The complainant was also awarded cost of Rs.250/-. Hence, the present appeal by the opposite parties therein. 6. We heard both sides. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that the Forum below had no territorial jurisdiction to entertain the complaint in OP.295/97 as no part of the cause of action had arisen within the territorial limits of the Forum below. It is further submitted that the respondent/complainant failed to substantiate his case regarding manufacturing defect and that the Forum below has gone wrong in relying on the testimony of PW2 and his survey report P2 as he was not appointed as an expert by the Forum below. He urged for the position that the cracks developed on the chassis of the vehicle were due to operational defects and negligence of the complainant. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He argued for the position that cracks were developed on the chassis during the warranty period and that the chassis is an important part of the vehicle having warranty coverage, and that the failure on the part of the opposite parties to replace the said defective chassis would amount to deficiency in service. It is also submitted that the complainant suffered financial loss, inconvenience and mental agony on account of the deficiency in service on the part of the opposite parties. Thus, the respondent prayed for dismissal of the present appeal. 7. The points that arise for consideration are:- 1. Whether the Forum below (CDRF) Kannur had territorial jurisdiction to entertain the complaint in OP.295/97? 2. Whether the complainant in OP.295/97 had succeeded in establishing his case regarding manufacturing defect in the chassis of the vehicle (Mini Lorry) which he purchased from the opposite parties? 3. Whether the Forum below can be justified in finding the opposite parties deficient in rendering service to the complainant who purchased the vehicle from the opposite parties 1 to 3? 4. Is there any legally sustainable or reasonable ground to interfere with the impugned order dated 22.5.2000 passed by CDRF, Kannur in OP.295/97? 8. POINT NO.1:- The admitted facts of this case would show that the respondent/complainant purchased a mini lorry manufactured by the third opposite party from the second opposite party and the said sale was effected on 17.3.96. The third opposite party has his office at Bombay and the second opposite party Sakthi Automobiles is having its main office at Kozhikode. Admittedly, Sakthi Automobiles was the dealer and service center of the third opposite party M/s.Telco. It is also to be noted that the first opposite party is the Manager of Sakthi Automobiles at Kannur. The second opposite party is having its branch offices and workshop at Kannur, Kasaragod and Thalassery. It is also an admitted fact that after the purchase of the vehicle, the complainant had been repairing and servicing his vehicle at the branches of Sakthi Automobiles at Thalassery, Kasaragod and Kannur. It is to be noted that the vehicle was purchased from the first opposite party at Kannur by placing order. R1 Job card produced from the side of the first opposite party would make it abundantly clear that the said vehicle was serviced and repaired at the workshop of the first opposite party. R2 satisfaction Note was also issued from the office of the first opposite party. R3 letter dated 23.6.97 and R5 spot survey report were also issued from the office of first opposite party. It is based on the said survey report prepared by the first opposite party, the claim of the complainant for replacement of the chassis was repudiated. R3 letter dated 26.6.97 issued by the works manager of the first opposite party would make it clear that the request of the complainant to get the defective chassis replaced was rejected by the first opposite party. It is only after the aforesaid repudiation of the claim, the complainant preferred the complaint in OP.295/97 on the file of CDRF, Kannur. Thus, the actions and omissions on the part of the first opposite party would make it clear that part of the cause of action for the complaint in OP.295/97 had arisen within the territorial limits of the CDRF, Kannur. The Forum below is perfectly justified in entertaining the complaint in OP.295/97. This point is answered in favour of the respondent/complainant and against the appellants/opposite parties. 9. POINTS 2 & 3:- The respondent/complainant alleged manufacturing defect in the chassis provided for the mini lorry which he purchased from the opposite parties on 17.3.96. The appellants/opposite parties 1 to 3 denied the alleged manufacturing defect. There is no dispute regarding the fact that cracks developed on the chassis of the said vehicle which was purchased by the complainant from the opposite parties on 17.3.96. It is admitted that the said vehicle was having warranty for 3 years or 3 lakhs kms, which ever expires first. The works manager of the first opposite party as DW1 has categorically admitted that the chassis is an important part of the vehicle and the defective chassis will adversely affect the load baring capacity of the vehicle and subsequently the vehicle itself will become useless “)CW ETI<fU[NL =`;T< @T,hP #7a !8U[NL [/BUHaHUHW^ "N1U<W^& \/BaHaHU<a \*3aEkTO \DT5a[/BbTN =pUDc& # ETI<^ =U[k %=\BT,VdTN =pUDc& DW1 further deposed in his cross examination that the Mini Lorry purchased by the complainant from the opposite parties had the warranty for the engine and chassis. It is also admitted by the DW1 that the said vehicle was having periodical services regularly and that the first opposite party is the authorized dealer and service center of the third opposite party and that during the warranty period, the vehicle should be serviced and repaired at the workshop of the authorized dealer. Thus, it is admitted by the opposite parties through their witness DW1 that the engine and chassis of the vehicle were having the warranty coverage and that the chassis developed cracks and the vehicle was brought to the first opposite party for replacement of the defective chassis on 20.6.97. 10. DW1 has deposed about R3 letter and R5 spot survey done at the instance of the first opposite party. He has also deposed that bolts of the body were loose and that rubber pads were also missing. R5 spot survey report would justify the said case of the opposite parties regarding loosening of bolts and missing of rubber pads. R3 letter dated 26.6.97 was addressed to the respondent/complainant Mr.V.Krishnan. The said letter would show that the first opposite party was not willing to rectify the crack on the chassis under warranty. The reason stated for refusing to do the said repair works under warranty is that the cracks developed due to loosening of load body mounting bolts and missing of 2 rubber pads of the mounting brackets. R3 letter would make it clear that the cracks on the chassis developed because of the loosening of the bolts and missing of rubber pads. In the said letter it was also requested to the complainant to purchase a new chassis and to forward the defective chassis to the manufacturer and if the manufacturer agrees to replace the chassis the amount will be re-imbursed. As per R3 letter, the first opposite party requested the complainant to take delivery of the vehicle. It is also stated that all other works mentioned in R1 job card dated 20.6.97 have been done. R1 job card would show that the work attended by the first opposite party are changing of gear oil, housing oil and rectification of the engine oil leak and cleaning of air cleaner. In R1 job card it is specified that chassis frame crack on front side was noticed on 20.6.97. Thus, according to the opposite parties the cracks on the chassis developed due to the negligence of the complainant in using the vehicle because of the fact that the complainant failed to notice the loosening of the mounting bolts and missing of the rubber pads of the mounting brackets. 11. P1 is the service book issued to the complainant with respect to the mini lorry which was purchased by the complainant from the opposite parties on 17.3.96. In the said service book, the services and repairs carried out are entered. The aforesaid particulars noted in P1 service book would show that the vehicle was purchased on 17.3.96 and thereafter four free services were carried out at the workshop of the second opposite party at Thalassery on 13.6.96, 2.10.96, 31.10.96 and 28.11.96. The aforesaid entries would also make it clear that subsequently services and repairs were carried out at the workshop of the opposite party Sakthi Automobiles in their branch workshop at Kasaragod on 6.1.97, 3.12.97 and 16.6.97. Thereafter, it was guaraged at the first opposite party workshop at Kannur. So, P1 service book would make abundantly clear that the regular and periodical servicing and repairs were carried out at the workshop of the second opposite party/dealer. The complainant as PW1 has deposed that he is only a layman and he is not having no technical knowledge on know-how about the crack of the vehicle. The complainant approached the opposite parties for getting his vehicle serviced and repaired. Then, it is for he opposite parties to safeguard the interest of the complainant with respect to the repairs and maintenance of the vehicle. If the mounting bolts were loosened, it was the duty of the dealer and service center to do the maintenance work regularly and properly. Likewise, the opposite parties were also bound to notice the missing of the rubber pads of the mounting brackets. It was not just or fair on the part of the opposite parties in finding negligence on the part of the complainant for loosening of the bolts or missing of the rubber pads of the mounting brackets. The opposite parties being the technical people having vast knowledge and experience about the vehicle were bound to maintain the vehicle properly by effecting necessary repairs and maintenance. So, the complainant cannot be found negligent in using the vehicle with loose mounting bolts or missing of rubber pads of mounting brackets. 12. P1 service book would make it clear that the complainant got his vehicle repaired and serviced at the second opposite party’s workshop at Kasaragod on 16.6.97. There is no case for the opposite parties on 16.6.97 the mounting bolts were loose or the rubber pads of the mounting brackets were missing. If there was any such defects that should have been rectified by the second opposite party at its workshop in Kasaragod. This circumstance would give a clear indication that there was no such loosing of the mounting bolts or missing of the rubber pads on 16.6.97. It is pertinent to note that the complainant noticed the cracks on the chassis on 20.6.97 and he immediately brought the vehicle to the first opposite party at Kannur with the complaint of cracks on the chassis. It is on 21.6.97, the spot survey was conducted at the instance of the first opposite party and DW1 issued R5 spot survey report and thereafter issued R3 letter dated 26.6.97. So, the case of the opposite parties that the complainant was negligent in using the vehicle with loosened mounting bolts and without rubber pads of the mounting brackets cannot be believed or accepted. The case of the opposite parties that the cracks on the chassis developed due to operational defects cannot be believed or upheld. The regular and proper repairs and maintenance done at the workshops of the second opposite party would make it clear that the crack on the chassis developed only because of the negligence of the opposite parties. It would in turn establish the deficiency in service on the part of the opposite parties. The above circumstances would give an indication that the said cracks on the chassis developed due to manufacturing defect. 13. The complainant much relied on the testimony of PW2, the approved loss assessor who submitted P2 Report. PW2 has categorically deposed that he is an approved loss assessor with respect to vehicles and he has got experience in the said field and he is licensed by the Government of India to do the work as a loss assessor. It is true that PW2 was not appointed as an expert by the Forum below. It is to be noted that PW2 inspected the vehicle of the complainant at the instance of the complainant and issued P2 report. PW2 has also deposed about P2 report submitted by him. It is dated 28.6.97. It is deposed by the complainant as PW1 that he got the vehicle inspected by PW2 after the refusal of the opposite parties to replace the cracked chassis under warranty. In P2 report, it is reported that there were cracks on the left side and right side of the chassis at its upper portion. PW2 has also deposed that the cracks on the chassis developed due to manufacturing defect. 14. PW2 was cross examined by the counsel for the opposite parties. In cross examination, PW2 has admitted that he is not an expert in the field of Metallurgy and the strength of the one or metal used for manufacturing the chassis can be ascertained and assessed by a metallurgist. The mere fact that PW2 is not having the expertise in metallurgy or Metallography cannot be taken as a ground to hold that the evidence of PW2 is to be discarded. On the other hand, PW2 being an expert in the filed of assessment of loss and damage to motor vehicles can be considered as an expert to ascertain whether the cracks were developed due to manufacturing defect. At any rate, the evidence of PW2 and his P2 report would show that there were cracks on the right hand side and left hand side of the chassis of the vehicle. He has no case that the aforesaid cracks developed due to operational defects or due to negligence in using the said vehicle. The case of the opposite parties that PW2 being not an expert in the field of metallurgy the evidence of PW2 cannot be relied on is without any basis. The evidence of PW2 as a witness on the side of the complainant can be analyzed and appreciated. The Forum below has rightly relied on the testimony of PW2 and his P2 report, to some extent. 15. DW1, the works manager of the opposite parties 1 and 2 has categorically admitted that the vehicle chassis and the vehicle Engine were having warranty coverage and the warranty period for the vehicle was for 3 years or 3 lakh kms, which ever happens earlier. Admittedly, the vehicle had covered only distance of 40390 kms on 20.6.97, the date on which the crack was noticed and the vehicle was brought to the workshop of the first opposite party. The complainant purchased vehicle on 17.3.96 and the cracks on the chassis developed during the warranty period. Then the opposite parties were duty bound to rectify the said defects. Admittedly, the chassis was having warranty coverage. So, the cracks developed on the chassis would come under warranty. No expert opinion or evidence was required in the said matter. The failure on the part of the opposite parties to replace the defective chassis would amount to deficiency in service. 16. The appellants/opposite parties would contend that there was no expert evidence available to substantiate the case of the complainant regarding manufacturing defect in the chassis. The appellants have also contended that the Forum below failed to comply the provisions of Sec.13 (1) ( c) of the Consumer Protection Act, 1986. The aforesaid Section 13 (1) (c ) reads as follows:- “Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum.” 17. The aforesaid provisions contained in Section 13 (1) (c ) would make it clear that the goods or samples need be forwarded to the appropriate laboratory for analysis or test only if it is found that the alleged defect in the goods cannot be determined without proper analyze or test of the goods. In the present case on hand, it is an admitted fact that the chassis is an important part of the vehicle and the chassis of the vehicle was having the warranty, and during the warranty period cracks developed on the chassis which was having warranty coverage. DW1, the works manager of opposite parties 1 and 2 categorically deposed that the chassis is an important part of the vehicle and the defective chassis will adversely affect the load baring capacity of the vehicle and ultimately the vehicle itself will become useless. He admitted the warranty coverage for the chassis. He also admitted that the cracks developed on the chassis. It is also come out in evidence that the vehicle was regularly maintained by effecting necessary repairs and services at the workshops of the second opposite party. So, the cracks developed on the chassis can very safely be assessed as a manufacturing defect. No further analysis or testing of the chassis was required in the matter. The forum below is perfectly justified in entertaining the complaint filed by the complainant without obtaining a further report from an analyst or an expert. Thus, the findings of the Forum below that there was manufacturing defect in the vehicle and that the cracks on the chassis were developed due to manufacturing defect are to be upheld. This State Commission have no hesitation in upholding the findings of the Forum below that there was deficiency in service on the part of the opposite parties in replacing the defective chassis which developed cracks during the warranty period. These points are found against the appellants/opposite parties. 18. POINT NO:4:- The learned counsel for the appellants and the respondent admitted the fact that the cracks developed on the chassis were repaired by doing welding works. It is also admitted by the respondent who appeared in person before this Commission that he has been using the vehicle till this day. It is to be noted that in the complaint at Paragraph 7, it is pleaded that the vehicle is not running and so the complainant is having a loss of Rs.600/- per day since 20.6.97. But when the complainant was examined before the Forum below on 30.12.98 he deposed that the vehicle is being used for short distances and that he is getting Rs.300/- per day. In the complaint, it was stated that he has been suffering financial loss of Rs.600/- per day since 20.6.97. The appellants produced documents issued by the registration authority Thaliparamba. It would show that the complainant being the registered owner of the vehicle has been remitting the road tax for the said vehicle up to March 2010. Thus, it can be seen that the complainant has been using the vehicle and earning money by plying the vehicle till this day. So, the case of the complainant that he was not in a position to ply the vehicle because of the cracks developed on the chassis cannot be accepted. It may be correct to say that the complaint was not in a position to make use of the vehicle at its maximum or optimum use. It is also true to say that the complainant has been using the vehicle with inconveniences and difficulties. The possibility of getting the income reduced due to the defective chassis can be accepted. The facts and circumstance of the case would establish that the respondent/complainant suffered financial loss due to the deficiency in service on the part of the opposite parties. 19. There can be no doubt that the complainant is entitled to get defect free vehicle. The documents produced from the side of the appellants at the appellate stage would show that the complainant purchased the mini lorry from the opposite parties on 17.3.96 by spending a total of Rs,3,97,843/-. By spending such an amount, the complainant expected a defect free vehicle. But the opposite parties supplied a defective vehicle. It is true that the defects namely cracks on the chassis developed on 20.6.97 ie; after the lapse of one year and the vehicle covered a distance of more than 40,000 kms. Even then, the complainant is not expected to have a vehicle with defective chassis. He is not expected to use a defective vehicle by spending such a huge amount for purchase of the vehicle. So, the complainant is to be compensated for the deficiency in service on the part of the opposite parties and also for the financial loss suffered by the complainant. The forum below directed the opposite parties to replace the defective chassis by a new one. Admittedly, the opposite parties have not replaced the defective chassis and the complainant has been using the vehicle with that defective chassis. The vehicle was purchased in the year 1996 and the vehicle is even now in use after the lapse pf 14 years. No purpose will be served by replacing the old defective chassis by a new chassis after the lapse of 14 years. There can be no doubt that the failure on the part of the opposite parties in replacing the defective chassis on 20.6.97 itself would amount to deficiency in service and that the opposite parties are to be made liable for the said deficiency in service. So, instead of directing the opposite parties to replace the chassis by a new one, the compensation in the form of money will be sufficient to meet the ends of Justice. Therefore, this Commission is pleased to modify the impugned order passed by the Forum. 20. According to PW1 (complainant) the new chassis would cost Rs.45,000/-. But DW1 has deposed that cost of the new chassis will be more than Rs.30,000/-. It is also to be noted that cost of replacement of the defective chassis by a new chassis would alsoto be taken into consideration. If that be so, the price of new chassis including the replacement charge would come to Rs.45,000/-. So, for the purpose of assessing the quantum of compensation, the price of the new chassis with replacement charge can be taken as Rs.45,000/-. The opposite parties are liable to pay the aforesaid sum of Rs.45,000/- to the complainant. 21. The facts, Circumstance and the evidence on record would show that the complainant has also suffered financial loss. The forum below directed the opposite parties to pay compensation at the rate of Rs.2500/- per month from 20.6.97 onwards. There can be no doubt about the fact that the use of the vehicle by the complainant till this date is also to be taken into consideration. It has been held by the Hon.Supreme Court in Tata Engineering & Locomotive Company Ltd; V. Gajanan Y Mandrekar reported in AIR 1997 Supreme Court 2774 that using of the vehicle over a considerable period is also to be taken into consideration while awarding compensation for the financial loss and deficiency in service suffered by a consumer. So, it can be concluded that the compensation at the rate of Rs.2500/- per month from 20.6.97 till replacement of the defective chassis can be treated as excessive. A further compensation of Rs.2,00,000/- can be treated as a reasonable compensation. It is true that there will be some guess work in arriving at such a compensation. So, the total compensation due to the complainant is fixed at Rs.2,45,000/-. It is to be noted that the complainant purchased the vehicle itself in the year 1996 for a total consideration of Rs.3,97,843/-. But the deficiency in service on the part of the opposite parties is to be viewed seriously. The third opposite party being a reputed Manufacturer of motor vehicle was not expected to take such an untenable contentions for the purpose of avoiding the liability under the warranty. The aforesaid compensation amount of Rs.2 lakhs would carry interest at the rate of 9% per annum from the date of receipt of copy of this judgment till payment. The appellants/opposite parties are also liable to pay cost of Rs.250/- ordered by the Forum below. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. This point is answered accordingly. In the result appeal is allowed partly and thereby the impugned order dated 22.5.2000 passed by CDRF, Kannur in OP.295/97is modified. The appellants/opposite parties are directed to pay a sum of Rs.2,45,000/- by way of compensation to the respondent/complainant for the deficiency in service on the part of the opposite parties and also for the financial loss suffered by the respondent/complainant. The cost of Rs.250/- awarded by the forum below is confirmed. The compensation of Rs.45,000/- representing cost of new chassis will carry interest at the rate of 12% per annum from 20.6.1997 till payment/realization and that the compensation of Rs.2 lakhs will fetch interest at the rate of 9% per annum from the date of receipt of copy of this judgment till payment. The opposite parties are jointly and severally liable to pay the compensation. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER S. CHANDRAMOHAN NAIR -- MEMBER s/L | 
