O R D E R Sri. Santhosh Kesavanath P., President. Case of the petitioner, filed on 1..3..2000 is as follows. Petitioner purchased a Tata Sumo GXE I 8 seator vehicle, with Passion -2- Red colour, from the second and 3rd opposite parties. Additional 4th opposite party is the manufacturer of the vehicle. The vehicle was delivered from the showroom of the opposite parties at Kottayam on 2..2..2005. After 1 Kms. of journey from the showroom of the opposite party on the very same day vehicle shown gear box complaint. Petitioner informed the matter to the opposite party. As per the direction of second and 3rd opposite party a mechanic came and he inspected the vehicle and confirmed that vehicle has serious gear box problem. As per the instruction of the mechanic vehicle was pulled by another vehicle to the showroom of the opposite party at Kottayam. But the opposite party had not cured defects of the vehicle. Petitioner sent a lawyers notice demanding the replacement of the vehicle. Even after receipt of notice no reply was sent by the second opposite party. According to the petitioner the defects of the vehicle is manufacturing defect. Refusal to replace the vehicle even after receipt of the notice according to the petitioner is a clear deficiency in service. So, he prays for a direction to the opposite party to replace the defective vehicle or refund the amount of Rs. 6,85,079/-. Petitioner claims Rs. 1 lakh as compensation. First opposite party was detailed from the party array as per order in IA 509/05 dt: 24..6..2009 4th opposite party was imp leaded as per order in IA No. 328/05 Dtd: 6..5..2005. 5th opposite party was imp leaded as per order in IA No. 676/08. Second and 3rd opposite party entered appearance and filed joint version stating that petition is not maintainable. They admitted the purchase of the vehicle -3- and delivery of the vehicle at sales point at Kottayam. Vehicle was taken delivery after thorough inspection and trial run by the petitioner to his entire satisfaction. 2nd and 3rd Opposite party denied gear box complaint of the vehicle and the towing of the vehicle to the opposite parties showroom at Kottayam. On 8..2..2005 the petitioner brought the vehicle the opposite parties sales point after having run about 410 kms. Petitioner was requested to sign a job card , so as to permit the service technicians to inspect and investigate the complaints. . But to the surprise of the opposite party petitioner refused to detail the problems faced by him and to sign the job card instead petitioner was in a stubborn stand that he want replacement of the vehicle with a brand new vehicle. Opposite parties service technicians requested the petitioner to allow them to inspect and investigate the vehicle. So as to settle the issues amicably. Petitioner instead of allowing locked the vehicle and parked the vehicle in an awkward manner in opposite party sales point without handing over the key. Vehicle caused Sevier inconvenience to the day to day activities like movement of staff, vehicle parking etc. Opposite party contacted the petitioner personally and offered to bring the vehicle to Trivandrum for detailed inspection and investigation which was also refused by the petitioner. Opposite party 2 and 3 admitted the receipt of lawyers notice. According to them they issued detailed reply stating the petitioner either to take away vehicle from opposite parties premises or to allow the service -4- engineers from opposite party for examining the vehicle and rectify the problem. According to the opposite party there is no manufacturing defect. So, the second and 3rd opposite party pray or a dismissal of the petition with their costs. 4th opposite party entered appearance and filed version contenting that petition is not maintainable. According to them petitioner had taken delivery of the vehicle on 2..2..2005 after personally inspecting the vehicle and being satisfied with vehicle. Statement that vehicle started gear box complaint within 1 kms. from showroom is denied. Complainant taken his vehicle to the sales point of Kulathinkal Motors only on 8..2..2005. After the vehicle had covered 410 kms. Petitioner even after request had not signed on the job card and left the vehicle at the sales outlet of the dealer after locking the same. According to the 4th opposite party allegation of the manufacturing defect is in correct and against the facts. Unless and until the petitioner permits the dealer to check the vehicle and determined the nature and cause of the compliance alleged it cannot be any stretch of imagination to be said that there is manufacturing defect in the vehicle of the complainant. 4th opposite party prays for dismissal of the petition with their costs. 5th opposite party entered appearance and filed version contenting that the petition is not maintainable and there is no cause of action arose in favour of the petitioner and against the respondent to file the complaint. Hence the petition is -5- an abuse of process of law. 5th opposite party contented that they are non banking financial company and is concerned with loan transaction . So, 5th opposite party prays for dismissal of the petition with their costs. Points for determinations are: i) Whether there is deficiency in service on the part of the opposite party? ii) Relief and costs? Evidence in this case consists of affidavit filed by the petitioner, Opposite parties 2, 3, 4 and 5 Ext. A1 to A9 documents on the side of the petitioner C1 and C2 reports and the deposition PW1. Point No. 1 Crux of the case of the petitioner is that he purchased a Tata Sumo Vista vehicle through retail outlet of 4th opposite party, that is 2nd and 3rd opposite party, manufactured by the 4th opposite party. On 2..2..2005 after delivery of the vehicle on the way to the petitioner house, vehicle showed gear box complaint. On information of the matter mechanic came, from 2nd and 3rd opposite party, and inspected the vehicle. and towed it to their showroom at Kottayam. According to the petitioner the vehicle had serious gear box problem and the same is a manufacturing defect. As per order in I’A 164/05 dtd: 2...3..2005, a retired Deputy Transport Commissioner is appointed as the expert commissioner to inspect the vehicle and file the report. Report of the commissioner is produced -6- and the same is marked as Ext. C1. In Ext. C1 report commissioner reported that vehicle had only covered 410 km. at the time of inspection. Clutch is not disengaging on application of clutch pedal and as such the vehicle is not in running condition. On 24..6..2005 petitioner filed another petition with vide IA No. 508/05 for allowing him to produce the vehicle in the premises of the St. Antony Motors, Kottayam. I.A 508/05 allowed and as per order dtd: 24..6..2005 and 7..7..2005 Forum ordered the petitioner to produce the vehicle before St. Antony’s Motors, Kottayam, an authorized dealer of 4th opposite party Tata Motors. During pendency of the original petition before this Fora 2nd, 3rd and 4th opposite party filed a revision against the order in IA 508/05 before the Hon’ble State Commission, Kerala for revising the order passed by the Forum. Hon’ble State Commission as per its order dtd: 10..10..2006 in RP 37/05 allowed the revision and ordered the lower Forum to appoint an impartial and independent expert Automobile Engineer to supervise the repair work. During the pendency of the revision petition before the Hon’ble State Commission petitioner filed IA 267/07 for a direction to keep the vehicle in safe custody. Forum on 20..8..2007 ordered that since the original records are not yet received from the Hon’ble State Commission the IA will be kept in Abeyance for passing appropriate order at proper time. On 26..5..2008 records are received. Both sides submitted panel of experts. In compliance of the order in RP 37/05 forum appointed Sri. Thomas. C Thomas, Insurance Surveyor and loss assessor to supervise the repair work and to -7- submit report. Further more the fora directed 2nd and 3rd opposite party produce the vehicle for inspection and for carryout the work . On 3..12..2008 commissioner filed a report stating that the 4th opposite party intimated him that the vehicle was repossessed by a finance company. Along with the report commissioner filed a copy of letter given by the 4th opposite party. In our view act of the 2nd, 3rd and 4th opposite party is an imperfection or shortcoming in the quality, nature and manner of performance which is required to be maintained and is a clear deficiency in service. Counsel for the opposite parties vehemently argued that 5th opposite party is the real owner and complainant was a hirer. When their was defect in payment. 5th opposite party has the right to reposes the vehicle. Re-possessing a vehicle by muscle power illegally other than under due process of law is warranted by the Hon’ble Supreme Court in many cases. In our view the act of the opposite party in not giving proper care to a vehicle, which is entrusted to the 4th opposite parties is a clear deficiency in service. Petitioner has not adduced any concrete evidence to prove the loss to the tune of value of the vehicle. Without saying what had happened caused much inconvenience loss and sufferings for the petitioner. So, Point No. 1 is found accordingly. Point No. 2 In view of the finding in point No. 1 petition is allowed . Opposite party No. 2, 3 and 4 are jointly and severally ordered to pay an amount of Rs. 4,00,000/- as compensation for loss and sufferings. Opposite party’s are is also ordered to pay an amount of Rs. 5,000/- as cost of the proceedings. Order will be complied with within one month of receipt of order if not complied as ordered -8- petitioner is entitled for 10% interest for the award amount from the date of order till realization. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 19th day of June, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- APPENDIX Documents of the Petitioner Ext. A1: Copy of Sales order Ext. A2: Copy of new vehicle release order Ext. A3: Copy of certificate of Insurance Ext. A4: Copy of Temporary certificate of registration. Ext. A5: Copy of Sales certificate Ext. A6: Lawyers notice Dtd: 11..2..2005 Ext. A7: Postal receipt Ext. A8: Postal A/D card Ext. A9: Copy of contact details Witness PW1: P.D Sukumaran Report C1: Report of Sri. P.D Sukumaran Dtd: 4..3..2007 C2: Report of Thomas.C.Thomas. By Order, Senior Superintendent.
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
