SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complaint seeking replacement of the vehicle or  refund of the prize, compensation costs etc.

The averments in the complaint can be briefly summarized as follows:

The complainant purchased a Mahindra D1 3200 BSII Model vehicle from the 2^nd opp.party.   The 3rdopp.party is the authorized service  centre of the 1^st opp.party.   The chassis No. is MAIHAZGED 53H with Engine No.GE54658330.  The vehicle was registered with Reg.No.KL;02-W-4223 with goods carriage permit.  Immediately after  purchase the complainant’s driver noticed on driving that the vehicle  when driven  even at a normal speed of 30 K.M. skid from back  The matter was informed to the 2^nd opp.party over phone who assured that the problem will be cured automatically orelse it will be rectified at the time of first service.  On 5.9.2005 the complainant noticed that the above problem  increased and due to Alignment disorder the front tyre of the vehicle tore.  Again the matter was informed to the 2^nd opp.party who informed that the problem will be cured only at the first service.  On 27.10.2005 the vehicle was taken to the 3^rd opp.party and gave a written complaint explaining all the problems.  The 3rdopp.party adjusted the brake changed oil and  corrected the alignments.   However the vehicle  continue to have  the very same  problem.  When the matter was informed  the 3^rd opp.party said that the problem would disappear on continuing to drive the vehicle.  On 14.2. 2006 the vehicle was taken for service and  at that time also the complainant informed the problem but after service the vehicle was returned with the usual assurance.  On 2.9.2006 the vehicle was taken for service and the complainant again complainted of the above problem.   After  changing oil and adjusting brakes the complainant was asked to remit Rs.3526/-.  Even after that the problem continued.   However on the assurance given by the opp.parties the vehicle continued to be used.. On 23.6.2006 the complainant was coming  to Kollam from Thiruvananthapuram and when the complainant reached Ithikkara Bridge a child suddenly cut across the road and he has applied sudden brake  to save the child and the vehicle skidded and fell  in the drainage channel on the left side of the road and  sustained  considerable damages. Thereafter the 3^rd opp.party on 18.7.2006 effected repairs and  the complainant had to remit a sum of Rs.8,500/-.  Thereafter at the premises of the 3^rd opp.party  a test drive was done  and it was noticed that the complaint  till continued Frustrated the complainant left the vehicle at the 3^rd opp.party’s premises.  On 3.9.2006 the opp.party informed that an expert  from Aluva has come for repairing the vehicle.  The complainant   was informed by the expert that the complaint can be corrected only by replacing the Sub Axil R.H. and therefore the complainant  as directed by the expert purchased that  from Coimbatore paying Rs.2500/-.   However the complainant was not cleared .  On 26.9.2006 the 3^rd opp.party requested the complainant  to take the vehicle to Aluva and accordingly the vehicle was taken to Aluva  On 16.10.2006 the complainant was informed to take   delivery of the vehicle from Aluva  and again the complainant along with the driver went to Aluva and  when the vehicle was test driven it was noticed that  the very same  complaint still exists  Fed  up with all these the complainant left the vehicle at Aluva and returned to Kollam being fully releasing that the vehicle is having manufacturing defect which cannot be corrected.  Hence the complaint.

The first opp.party filed version contending interalia that the complaint is not maintainable either in law or on facts.    The complainant is not a consumer as defined under Section 2 [1][d] of the Consumer Protection Act 1986.  There is no privity between the complainant and the first opp.party since the transactions  between the first opp.party and the 2^nd and 3^rd opp.parties are on principle to principle basis  The complaint is filed after  the warranty period is over on a experimental measure after commercially utilizing the vehicle for considerable kilometers.  The averments  in para 3 that the driver noticed a skid from the back while  driving the vehicle  is   without any merit.  On enquiry made by this opp.party with the 2^nd opp.party  it was known that no such complaint has been ever raised by the complainant.  The averments  in para 4 are also without any merits.  No complaint was reported on 5.9.2005  as alleged  On 27.10.2005 the vehicle was brought for the 1^st service and at that time neither the driver  for the complainant has raised any sort of complaint  with regard to the alleged problems.   The averments in para 6  that the problem continued even thereafter and on 14.2.2006 when the vehicle was brought for 2^nd service  is without any merit.   The complainant  did not  have any specific complaints  at the time of  2^nd or 3rdservice.  At the time of 3^rd service  certain consumable items not covered by warranty  were replaced.  On 29.6.2006 the vehicle was brought  for an accident repair.  It was informed that the vehicle  fell into a drainage when the driver attempted to save a child who cut across the road  when sudden brake was applied.  The accident  occurred when sudden brake was applied .  This would explain  that the driver of the vehicle could  only locate a child crossing  the road on a very short vicinity .  It is  quite  normal that the driver looses his control  in such circumstances when sudden break will habe to be applied in reflex action.   The complainand had never raised a complaint  with brake prior to the accident.   The story  now  projected by the complainant  with respect  to brake complaint is purely imaginary illogical and  to obtain unlawful enrichment.  After the accident it is informed to this opp.party that the vehicle was properly repaired certain parts  namely steering coroctus and sub axle etc was damaged.  After  effecting  the repairs  the vehicle was delivered to the complainant.   The alleged complaint was raised for the first time on 18.7.2006 much much after the accident.  The averment in para 10, 11.12. and 13 are also denied as they are made without any merit.   The vehicle was taken to Aluva  for testing at the expense of the complainant and in fact the vehicle was tested and found that the  same is not showing  any defect as alleged by the complainant.  There is no manufacturing defect as alleged.  The statement regarding  financial loss is without any  merit and hence denied.   Hence this opp.party prays to dismiss the complaint.

The opp.party 2 and 3 are filed a separate version with more or less identical contentions.   The complainant is not a consumer  as he has purchased a  Mini lorry to be used as a goods vehicle for making profit.   The averments  in part one are admitted.   The averment in para 3 and 4 of the complaint are not true and hence denied.     The complainant has not reported any complaint as alleged on 5.9.2005.  On 27.10.2005 the vehicle was brought for the first free service and on that day neither the complainant or his driver made any specific complaint about  the alleged  problems.   As usual  the vehicle was subjected to a general check up  and attended the complaints and delivered the vehicle to the full satisfaction of the customer.  On 14.2.2006 the vehicle was brought for the 2^nd service.  On that day also the complainant did not make a specific complaint about the alleged problem.    And on that day also the vehicle was taken by the complainant  on his full satisfaction.   The vehicle was brought on 2.5.2006 for the 3^rd service when the vehicle have run 25104 kms at that time also no complaint regarding the problem was informed.   The vehicle was brought to these opp.parties on 29.6.2006 for an accident repair.  It is absolutely false  that the vehicle met with an accident on 23.6.2006, while it was being driven  in a very cautious manner .  The averment that the accident  is due to alleged defect of the vehicle is denied.   The accident occurred only due to the rash ness and negligence of the driver.   The repairs were completed and the vehicle was delivered to the complainant on  29.6.2006. When the vehicle fell into the drain certain parts steering coroctue and sub axle etc were damaged and they have to be replaced.   The alleged complaint was raised for the first  time on 18.7.2006.   The allegation that due to the reaction of the 3^rd opp.party the complainant was frustrated  and had to leave the vehicle in the 3^rd opp.party’s premises  is false.  In fact when the complainant raised a complaint about the skidding from the back of the vehicle when the breake is applied the 3^rd opp.party attended the complaint.  While the complaint was being attended the complainant left the place leaving the vehicle.  When the matter was reported to the first opp.party.  The complainant was asked to be present at the time of examination of the vehicle.   The complainant himself  has  volunteered  to purchase  the sub axle from Coimbatore.   As the vehicle was deserted in the premises of this opp.party  two notices requiring  him to take back the vehicle was sent.  It was also suggested that   he could get the vehicle tested in one of our major outlet and as requested  bythe complainant   these opp.party make arrangements for testing the vehicle from Aluva.  There also the vehicle was test driven and it has not shown  any such defect.   The allegation in para 13 and 14 are false and hence denied.   There is no deficiency in service on the part of these opp.party.   The complainant is not entitled to get any relief.  Hence these opp.party also prays to dismiss the complaint.

Points that would arise for consideration are:

     1. Whether the complainant is a consumer?

2.Whether the complainant is entitled to get the vehicle replace.

     3. Whether there is deficiency in service on the part of the opp.party

1.     Reliefs and costs.

For the complainant PW.1 and 2 are examined.   Ext.P1 to P9 are marked.

For the Opp.parties DW.1 and 2 are examined.  No exhibits marked.

POINT: 1

The contention of the opp.parties is that the complainant is not a consumer within the meaning of section 2[1] [d] of the Consumer Protection Act 1986 as he has purchase the vehicle in this case for commercial purpose.  It is true that the complainant has purchased the vehicle for commercial purpose  but it is for the purpose of earning a livelihood which comes within the explanation to Sec.2[1][d] other than revising a contention that the complainant is not a consumer no material is produced in support of their contention.  Hence we hold that the complainant is a consumer and the complaint is maintainable .

POINT 2 to  4

 It is not disputed that the complainant purchased the vehicle from opp.party 2 . The case of the complainant is  that after purchase of the vehicle  it was noticed that while  brake is applied  when driving the vehicle skidded from the back and this aspect was brought to the notice of the 2^nd opp.party at the time of free service.  But the 2^nd opp.party informed that such defects still automatic will cure when the vehicle is being driven .   It is further case that during the 2 and 3^rd service also the very same defect was pointed to the 2^nd opp.party on those occasions also they have repeated the very same fact.   After thir 3 service also the defect continued and on 23.6.06 while the vehicle was driven from Thiruvananthapuram to Kollam near the Ithikkara bridge a child suddenly cut across the road and  nor to save the child the driver applied sudden break and due to the problems of the vehicle, the vehicle skidded and fell into drain on the side of the road and sustained damages. Again the vehicle was taken to the 2^nd opp.party who effected repairs and when test drive was done the complainant notice the same defect and frustrated from the reaction of the opp.party he left the vehicle in the premises of the opp.party.  Thereafter he was required to take the vehicle to the 3^rd opp.party and according to the instructions  of  opp.party 3  sub-axel was replaced which the complainant purchased from the Coimbature. On driving the vehicle the very same defect was again noticed from which he could understand that the defect is a manufacturing defect.

     The case of the opp.party is that the complainant has not made any complaint regarding the skidding of vehicle  when break is applied at the time  when the vehicle was brought for free service.   Even at the time of 3^rd service after the vehicle has run more than 25,000 kms., the complainant did not make any complaint regarding the skidding of the vehicle when brake is applied.   The vehicle was brought to the 2^nd opp.party in pursuant an accident for repair.   The accident occurred due to rash and negligence driving of the driver and not because of any manufacturing defect.  It is the case of the opp.party  that the vehicle had run substantial kilometers and had the vehicle  any manufacturing defects as alleged, the vehicle would not have run more than 25000 kms.  After effecting repairs after the accident the vehicle was delivered to the complainant who took the same without any complaint..  It is the  definite case of the opp.party   that the vehicle has no manufacturing defect and the allegations of the complainant are unsustainable.

     As a matter of fact the complainant has not produced any material to show that he has informed the defect of skidding of the vehicle  when break is applied other than his   oral assertions..  It is also pertinent to note that this vehicle had run more than 25000 kms at the time of 3^rd service.   According to the opp.parties the  fact that the complainant has taken back the vehicle after recording satisfaction after the  first , second and third free service would show that the case of the opp.party that the complainant was satisfied with the vehicle after the servicing is true.  It is further contended that if the vehicle has such a complaint the complainant would not have taken the same for long distance journey and it was taken for long distance is obvious from the fact that the accident occurred when the vehicle was driven back from  Thiruvananthapuram.  However no materials worth believable was produced to establish that the complainant recorded full satisfaction after each service.   According to the complainant after each service the opp.party will assure that the defect has been rectified but on driving the vehicle after each service he noticed that the defect still persists  and that he never expressed satisfaction.  Merely because the complainant has taken the vehicle after each service it cannot be inferred that he was fully satisfied.

     The vehicle after test drive after the accident was not showing any improvement  is obvious from the fact that  the vehicle was subsequently taken to the opp.party 3 at Aluva.   The contention of the complainant is that he has taken  the vehicle  to Aluva as advised by the 2^nd opp.party and who that an expert is available  there in the opp.party’s 3 workshop at Aluva.   The vehicle has been taken  to Aluva  is not disputed.   The case of the opp.party  that  the  complainant has taken the vehicle of his own to Aluva cannot be swallowed without a pinch of salt.  When the 2^nd opp.party workshop is near the complainant’s house  it is quite improbable that the complainant would  take the vehicle to a very distant place of his own.   So we have no doubt to hold that the vehicle was taken to opp.party 3 as per the direction of the 2^nd opp.party for further repairs and the opp.party were also satisfied of the fact that the vehicle has some defect which could not be cured by the 2^nd opp.party, whether before the accident or after the accident.

    An expert was appointed by this Forum who filed Ext.P9 .   The expert has reported that he had gone to opp.party 3 workshop at Aluva and inspected the vehicle and when the vehicle was driven he noticed   dragging towards right, while applying  brake when the vehicle speed   is above 50 kms per hour  The expert  further stated that after thorough inspection he has come to the conclusion that either of the following  3 systems is responsible for such a condition.     

1.     Steering and Front Axle system

2.     Front suspension system

3.     Front brake system

and he has suggested that the above said systems and their parts are to be replaced under proper care and supervision.   The expert further reported that  he has not noticed any other fault.  From the report of the expert, it  is obvious that the vehicle has no manufacturing defect.  In cross examination the expert has stated that the defect noticed by him is possible in a vehicle which met with an accident.

          Whether the above defect is a manufacturing defect as alleged by the complainant or a defect which developed subsequent to the accident it has to be rectified, since the vehicle is being use in public place.   Thought the opp.party would contend that they have effected the repair properly in the light of Ext.P9 and the evidence to PW.2  it is clear  that the defect is still continuing.  The opp.parties have no case that the complainant has  taken the vehicle after the accident to any other workshop.  It is their duty to rectify the defect and deliver the vehicle trouble  free instead of asking  the complainant to take the vehicle to Aluva.  It is worth pointing out that  despite the inspection and repair by their expert the defect is  still continuing.   The complainant is justified   in refusing to take back the vehicle in such condition .  In these circumstances we feel that it is only just and proper to direct the  opp.parties to rectify the defects as pointed by the expert.   The conduct of opp.party in  not carrying  out the repairs to the satisfaction of the complainant is nothing  but deficiency in service.  It is pertinent to point out that the vehicle  is still in the premises of the opp.party and because of that the complainant is incurring loss as vehicle could not be used for which the complainant is entitled to get compensation.  For all that has been discussed above we are of the view  that the complainant is not entitled to get the vehicle  replaced with a new one.  But he is entitled to get it repaired by the opp.parties.  Point found accordingly.

          In the result  the complaint is allowed directing  the 3^rd opp.party to repair the vehicle  and deliver the same to the complainant  in accordance with the directions in Ext.P9 report within 30 days.   The opp.party is also directed to pay the complainant a sum of Rs.1,00,000/- as compensation.  The order is to be complied with within one month from the date of receipt of this order.

Dated this the  30^th      day of October, 2010.

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I N D E X

List of witnesses for the complainant

PW.1. – Shajahan

PW.2. – Sasidharan Pillai

List of documents for the complainant

P1. – Invoice

P2. – Permit

P3. – Owners manual

P4. – Repair bill

P5. – cash receipt

P6. – receipt

P7. – Diesel receipt

P8. – Front page of R.C. book

P9. – Expert opinion

List of documents for the op-.party

DW.1. Sajith Kumar

DW.2. – Sabu Mathew