THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 356/2009

Dated this the 24^th day of December 2018

                     (Smt. Rose Jose, B.Sc, LLB.    Hon’ble      :  President)                                 

                       Sri. Joseph Mathew, MA, LLB                  : Member

ORDER

Present: Smt.Rose Jose, Hon’ble President:

            This petition is filed by the petitioner Under Section 12 of Consumer Protection Act 1986 .  Petitioner’s case is that he had purchased one KAL MX 400 Autorikshaw having Reg.No.KL, on contract agreement with the 56-1365 from the 1^st opposite party manufactured by the 2^nd opposite party on 18.02.2008 after remitting Rs.33,647/-. The balance amount of Rs.98000/- was arranged by availing vehicle loan from Tamilnadu Merchantile Bank with the help of opposite party No.2 to 5.  The vehicle was purchased for using it as a means of self-employment for earning his livelihood.  Soon after the purchase of vehicle complainant came to understand that he can’t earn income by plying this vehicle in order to support his family.  It is stated that he has been earn his livelihood by running Taxi Autorikshaw prior to the purchase of this vehicle and so he know how to ride and keep the vehicle in good condition.

            It is alleged that on the very same day of its purchase, within 5 kms. Of its running engine started overheating, due to this high heat he could not even sit in the seat and drive the vehicle, immediately he informed the opposite party over phone and demanded to refund the paided amount.  But the answer was that they will never take back the vehicle once sold.  Moreover within few days of its running, the vehicle started high vibration, jerking, less pulling, high oil and fuel consumption, less mileage, poor break system, resting of body, fork complaint leakage of diesel, oil leakage from gear box etc. etc.  As its shock absorbed  are very poor in quality the passenger felt high jerking due to the defects in the fuel gauge , it became difficult to know the level of diesel in tank.  When he complaint sop these facts to opposite party, they told in an insulting manner, the first opposite party had engaged in the production of leak proof leakage take and advised him for success and he further alleged that whenever he took the vehicle to the opposite parties No.2 to 5 they returned him due to the lack of technicians and spare parts and they have taken 5 service coupons from the service book of the petitioner without providing any service.  The said vehicle have been manufactured with very poor quality materials pipes, tubes, cables etc. and its design itself is also defective.  Due to the excessive noise of the engine and also jerking due to the poor functioning of shock absorbs anybody  who had once hired the vehicle would never get into these vehicle for a second time. Due to the manufacturing defect of the vehicle and non- availability of vehicle he could not done the mandatory services stipulated in the owner’s manual and hence the vehicle could not be hired and has been lying idle since 2009. Due to this reason he could not remit the loan amount.  It is alleged that the sale of a defective vehicle to the customer is unfair trade practice and non-providing of good and proper after sale server is deficiency in service on the part of the opposite party and this caused much  mental agony huge financial loss and other untold sufferings to him.  Hence the petition seeking relief.

            The 1^st opposite party filed version denying all the allegations of the petitioner against them as not true or correct.  It is submitted that KAL( Kerala Automobiles Ltd) is a  fully Govt. owned Company with ISO 9001-2000 certification and are manufacturing and marketing various models of three wheeler chassis. The auto body is built by some other party, on contract agreement with the 2^nd   to 5 opposite parties.  So they are not liable or responsible for the alleged complaint regarding the body of the vehicle.  The 2^{nd  to 5}opposite parties are their authorized dealer to sell the vehicles and spare parts in Kerala.  The averments regarding bank loan and the alleged amounts spent on various heads by the petitioner and the transactions between the petitioner and other opposite party is not known to them.

They have delivered defect free chassis to the other opposite parties, the dealer, after careful quality inspection.  As per the agreement between them and the opposite parties 2^nd  to 5, they have to provide the service for any defect to the vehicle during the warranty period and thereafter they can make claim with the 2^nd  to -5 opposite parties.  But the 2^nd to 5 opposite parties have not made any claim for the service rendered to the petitioner, before them till date.  The dealer has to maintain sufficient stock of spare parts for counter sales as well as consumption of their workshop at all times.  They have supplied sufficient spare parts to the other opposite parties as per their demands and requirements and settled their warranty claims.   So the allegation of the opposite parties 2^nd -5 against them regarding the non-availability of spare parts is not true or correct. After purchasing the chassis from them for the said amount the 2^nd to 5 opposite parties had handed over the chassis to some other agencies for body building and after completing the body works they are selling the vehicle to the customers at a higher price. Hence they are not responsible for the alleged complaints regarding the body of the vehicle. The petitioner also had unauthorizedly altered the vehicle by fitting fan, etc.   It is violation of conditions stipulated in the owner’s manual. More over as per the free service coupons No.1 to 5 it is clear that the vehicle has  run 4399 km as on 12.07.2008 and it reveals that allegation raised by the petitioner are totally false and baseless.

            The 2^nd to 5 opposite parties are  soly entrusted with the servicing of the vehicle during the warranty period.  The other contentions of the 1^st opposite party are more or less same as that of the ^2nd to 5 opposite parties.  The vehicle delivered to the petitioner is having no manufacturing defects and the alleged defects if any were developed, the same can be attributed to the rash and negligent driving, improper maintenance and also of the violation of the conditions stipulated in the user’s manual by the petitioner. Moreover the performance of the vehicle with respect to fuel consumption oil consumption etc were satisfactory and they further submitted that after the last servicing, no servicing, oiling etc. was carried out. No loss or any other difficulties has been occurred to the petitioner due to any of their acts and there is no unfair trade practice or any deficiency in service on their side as alleged and hence prayed to dismiss the petition with their cost.

            The 2^nd to 5^th opposite parties filed version denying all the allegations made against them as false and frivolous.  It is submitted that, they are the authorized dealer of the 1^st opposite party from the period from 01.09.2007 to 23.01.2009 and after that they had terminated the dealership and transferred the same to M/s.Royal Automobiles and Engineering , 1/23 povoor Road, Vazhimukku, Thiruvananthapuram.  The Firm has been dissolved and the leasehold right over the place of business has been surrendered and released to theM/s.Royal Automobiles and Engineering through the landlord and hence Royal Automobiles are responsible for the free and paid services of the vehicles.

The purchase of the said vehicle on 18.02.2008 by the petitioner from them was admitted but stated that he had purchased it after pre-delivery test and inspection and road trial etc.  The petitioner had purchased the vehicle being satisfied with the working conditions of the vehicle. The body of the vehicle was built by Shri.Sabhari Motor XXXIX1785, Development plot, South Kalamassery, Ernakulam, an approved body builder of the 1^st opposite party and so they are also a necessary party to this proceeding for the proper adjudication of this petition.

              The petitioner had purchased the vehicle on 18.02.2008 and it was warranted against manufacturing defects of parts and components for a period of 6 months.  Whenever the vehicle was brought for the service or repairs that were rectified to his satisfaction and returned with request to follow the instructions given in the owner’s manual. Opposite parties 2^nd to 5^th had given all the services and repairs to redress the grievance of the petitioner till the transfer of this dealership to M/s. Royal Automobiles and Engineering and the satisfaction  note dated 12.11.2008 was signed and return to them by the complainant.

            They further contended that the 1^st   opposite party is a fully Govt. owned Company with ISO 9001- 2000  certification and had a well- established quality control procedure and the vehicle which passes the rigid quality control test are only cleared for sale.  So the problems and complaints alleged may be due to several other reasons  beyond the control of manufacturer or dealer like nature, manner and conduct of usage, Lack of proper maintenance, driving habits, road condition, Oil & fuel used, weight of load put on the vehicle etc.etc.  Even then whenever the petitioner had brought his vehicle for repair, whatever it may be, they have provided proper service to his total satisfaction.  The defects which are manifested due to the carelessness and negligence of the petitioner cannot be termed as manufacturing defects or an inherent defect.  The vehicle was perfectly working without any serious complaint and in any case they are bound only to rectify the defects if any in due compliance of the warranty conditions and when the defects are curable by repair one cannot insist for the replacement of the vehicle with a new one or return of its purchase price. 

            It is further submitted that the service were promptly carried out by them and it is claimed that the allegation of the petitioner that he has not used the vehicle due to  non-availability of proper service or spares is not true or correct. It is further contended that if any alleged defect has developed on the vehicle it is due to rash and negligent driving, improper maintenance and violation of the conditions stipulated in the user’s manual.

They have fulfilled their obligations under the warranty and dealership and hence there is no deficiency in service on their side as alleged and this petition is filed only with the malafied intention to avoid or make delay in payments towards the Bank loan. The complainant is only exaggerating the minor issues and he filed this complaint after the extensive use of the vehicle to the maximum extent. As such the vehicle is having no manufacturing defects and to ascertain the same it is to be send to the appropriate laboratory to analyse whether the vehicle is defective as alleged, by the petitioner.  The petitioner is not entitled to get any of the reliefs sought for in his petition and hence prayed to dismiss the petition with cost to them. After receiving notice from this forum OP No.6 appeared but didn’t file version hence this set ex-parte.

The points for determinations are:-

1. Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
2. Reliefs and costs if any?

Evidence consists of the affidavits filed by the petitioner, the 1^st and 2^nd opposite parties, Exts.A1 to A7, B1 & B2 Marked, depositions of PW1, and RW1 the commission ReportC1.

Point No.1:-

      There is no dispute with regard to the purchase of the vehicle by the petitioner from the opposite parties 2^nd to 5 manufactured by the 1^st opposite party.  The specific case of the petitioner is that the Autorikshaw purchased from the 2^nd to 5 opposite parties manufactured by the 1^st opposite party was defective due to its manufacturing defects and the 2^nd to 5 opposite parties had failed to provide good and proper after sale service including periodical free service to that vehicle and hence the vehicle damaged and he could not run the vehicle and was forced to keep the same idle and that caused much financial loss to him. 

      According to the 1^st  opposite party KAL is a fully Govt. owned Company with  ISO  Certification  and  is  having  a  well-established quality control procedure to check manufacturing process and the final products and only the vehicles which passes the rigid quality control tests is cleared for sale.  So there is no manufacturing defect in the vehicle as alleged.    Moreover they are issuing only the chassis of the vehicle and the body was built by M/s. Sabhari Automobiles who are entrusted by the other opposite parties.  So they are in no way liable for the defects if any with the body of the vehicle. They further averred that as per the agreement entered into between them and the 2^nd to 5   opposite parties they are supplying necessary spare parts to the other opposite parties without delay whenever they demands and also settled their warranty claims promptly.  So the allegations of the 2^nd to 5 opposite parties regarding non-availability of spare parts are not true.  It is their duty to provide adequate, prompt and timely after sale services to the customer and they have no role in this regard.  If there is any fault on the side of the other opposite parties, they are only liable for the same and the 1^st opposite party cannot be held liable for the fault if any on the part of the other opposite parties.      According to them engine sound and vibration is higher in diesel vehicles compared to petrol vehicles.  This is not a manufacturing defect.  The defects if any are due to carelessness and negligence of the petitioner in keeping the vehicle in good condition by availing periodical services.    So they are not liable to replace the vehicle or return its purchase price.

      According to the other opposite parties they had terminated and transferred the dealership to M/s. Royal Automobiles and Engineering on 20.01.2009 onwards and hence M/s. Royal Automobiles are liable to carry out the periodical servicing and necessary repairs to the vehicles sold from 20.01.2009 onwards and the 2^nd opposite party has no liability in this regard from the date of the said agreement.  They have done all the services promptly till the transfer of their dealership to M/s. Royal Automobiles & Engineering.  The chassis was built by the 1^st opposite party and body works was done by M/s. Sabhari Automobiles entrusted by the 1^st opposite party.  They are only the dealers and is in no way liable for the defects if any with the vehicle.   The defects if any were due to the careless and negligent use of the vehicle by the petitioner and non-availing of periodical services.     

      For ascertaining the exact condition of the vehicle Sri.K.Suresh, Lecturer in Automobile Engineering, S.V.Polytechnic College, Kanhagad was appointed as expert Commissioner to inspect the vehicle and to file report.  As there is a total number of 12 cases pending before this Forum against the same opposite parties with regard to same complaints in the other vehicles sold by the opposite parties, the expert after inspection of all the Autorikshaws MX400 Diesel except one based on the work memos submitted by all the parties to the petition submitted a detailed report dtd.27.11.10 and was marked as Ext.X1.

      In Ext.X1, it is reported that- All vehicles were of the same model.  There were resemblances in the defects of the vehicles.  The dis-similarities in body shape, dislocation of fuel tank and broken studs on exhaust pipe flange were remarkable.  Asked why there are dissimilarities in the body shapes, the representative of the 1^st opposite party the manufacturer, said that they had entrusted the work of body building to an ancillary unit.  This is not justifiable because if the vehicles bear same model number with the logo of manufacturer, they should be identified in each and every aspect.

      The said statement in the X1 report disproves the averment of the 1^st opposite party that they had sold only the chassis to the other opposite parties and the body was build by M/s. Sabhari Automobiles entrusted by the other opposite parties.  As the body building was entrusted to M/s. Sabhari Automobiles by the 1^st opposite party itself, they are also liable for the defects in the body of the vehicle.

      The expert further reported that all vehicles were in off-road condition and hence the on-road test could not be done.  It is stated that the pathetic condition of the vehicles was due to non-availability of spare parts and facilities for periodic and break down maintenances to be provided by the authorized service centres are not available to deal with the after sale services of these vehicles.  These statement in the report refute the averment of the other opposite parties that they have provided all facilities for servicing of the vehicles as a dealer and after transfer of their dealership the transferee also had provided these facilities to the customers and the averment of the 1^st opposite party that they had supplied necessary spare parts to the dealer without any delay whenever they demanded.  This also proved the allegation of the petitioner that due to the non-feasibility of service centre and non-availability of spare parts, he could not done the periodical servicing and maintenance and hence the vehicle could not be run and as a result he was compelled to keep the vehicle idle.

      It is further stated in X1 report that on asking questions related to maintenance, it was realized that the complainant has sufficient knowledge on periodic maintenance of vehicles.  There were indications of proper greasing and oiling.  Therefore it was concluded that the defects have happened not because of rash driving and negligence.  This statement also discarded the allegations of the opposite parties that the defects if any with the vehicle is due  to the rash  and negligent driving of the petitioner and also lack of proper maintenance of the vehicle.  Though in the report it is stated that the vehicle has been kept idle for about 15months, it is further stated that the petitioner had given preventive measures to the vehicle.   This shows that the petitioner had tried his level best to keep the vehicle in good condition even though it is kept idle.

      It was also reported that the authorized servicing centre has been locked out and the petitioner struggled a lot to do the required maintenance as stipulated in the service manual.  As some of the spare parts were not available, the local workshops have not entertained the vehicle for trouble shooting.  This situation rendered the vehicle immobile due to frequent breakdowns.  The corrosion of the body and cracks in the welded joints were remarkable.  The measures taken by the manufacturer to reduce engine sound, heat and vibration have not succeeded.  It is admitted by the expert that it is normal to produce more heat, sound and vibration in diesel engines than in petrol engines, however the manufacturer can provide measures to reduce this phenomenon so that the occupants do not feel uneasiness.  In this case they failed to provide such measures.

      It is further reported that the fuel was seen leaking from the fuel tank due to corrosion as a result of inferior quality raw materials used for making the tank.  Leakage of oil from the engine and transmission was found.  The clutch control cable has damaged.  Cracks in the floor board and welded joints were found.  The exhaust pipe flange had broken due to engine vibration.  The brake system had become hard due to sticky pistons in the wheel cylinders.  Brake shoes were dragging on the brake drums.  Brake fluid was leaking.  The nature of front tyre wear indicates that there was sideways movement of the vehicle due to the defects in the fork assembly.  The fuel flexible pipes were located very near to the exhaust pipe which would cause risk of fire accident if they came into contact when the engine vibrates.  The body was seen directly welded to the chassis frame side members and cross members causing difficulty in manoeuvarability.  Bolt and nut joints should have been adopted for easy manoeuvrability. The engine sound and vibration will cause uneasiness to the driver and passengers. There was no provision to fuse side mirrors.  The back door has cracked as it strikes the body every time it opens due to the absence of door stop.  The silencer bracket has broken due to excessive vibration. It is submitted that the other defects pointed out by the petitioner can be checked only in the running stage and as the vehicle was in off-road condition he could not check the same.

      Thus Ext.X1 expert report clearly proved that the vehicle is having many inherent defects in its chassis as     well as in the body also.  This report in all aspects supports the allegations of the petitioner and the fact that the cause of the pathetic condition of the vehicle is not because of the carelessness or negligence or due to the rash driving of the petitioner as alleged by the opposite parties, but due to its manufacturing defects and the inferior quality materials used for it making and also due to the negligence and fault on the part of the opposite parties in providing proper and timely after sale service facilities to the petitioner.

                  After all the expert had examined 11 vehicles of the same model manufactured and sold by the opposite parties based on the complaints pending before this forum and this alone shows the gravity of the complaints and pathetic condition of the vehicles sold by the opposite parties.

      The 1^st opposite party had filed objection to the expert report mainly on the reasons that the expert has not taken any parts of the vehicle as sample and sent the same to any approved laboratory for proper analysis to find out the exact reasons for the alleged defects.  But this is not necessary as the finding of the expert was from his experience in this field.  Such a qualified and well experienced person in this field can detect the defects without any lab analysis.  Moreover the defects reported in Ext.X1 can be detected easily by an expert without any lab analysis.

      Considering the facts stated, evidence on record, and based on the expert report we found that, the vehicle sold to the petitioner manufactured by the  1^st opposite party is having many inherent defects in its chassis and body.  The sale of the defective vehicle to the petitioner is unfair trade practice on the part of the 1^st opposite party and the failure in providing adequate and proper free and paid after sale services to that vehicle causing trouble to the customer is deficiency in service on the part of the 1^st opposite party.  So the opposite parties are liable to compensate the petitioner for the sufferings and financial losses occurred to him due to their said act.  Point No.1 found accordingly.

Point No.2:- In view of the finding in point No.1, this petition is to be allowed and the petitioner is entitled to get reasonable reliefs. As it is found that the total amount spent by the petitioner for the purchase of vehicle is 1,31,647 he is entitled to get the said amount.  As the defect of the vehicle is mainly due to its manufacturing defect the 1^st opposite party, manufacturer, is liable to pay the lion portion of the amount with compensation to the petitioner.

  In the result the following order is passed. The opposite parties are ordered to pay back Rs1,31,647/- to the petitioner, out of which the 1^st   opposite party, the manufacture is ordered to pay Rs.1,00,000/- along with Rs.15,000/-as compensation and Rs.10,000/-as cost of the proceedings and the 2^nd to 5  opposite parties are ordered to pay the balance amount of Rs.31,647./- 1^st  opposite party can take possession of the vehicle on payment of the amount.  The order will be complied with, within 60 days from the date of receipt of this order.  Failing which the amount will carry 9% interest from the date of default till payment.

Dated this 24^th day of December 2018.

Date of filing: 26.08.2009.

SD/-MEMBER                                                       SD/-PRESIDENT 

APPENDIX

Documents exhibited for the complainant 

A1.Receipt for Rs.1,31,647/-issued by the opposite party dtd.18.02.08

A2. Copy of loan pass book of Tamilnad Mercantile Bank Ltd.  

A3. Owner’s manual  

A4. Copy of Driving licence.

A5.Notice publication issued by opposite party

A6.copy of Registration certificate.

A7.Lawyer notice issued to the complainant dtd.05.03.2011.

Documents exhibited for the opposite party:       

B1.Agreement between the 2^nd opposite party and M/s.Royal automobiles

      & Engineering regarding transfer of dealershipdtd.20.01.2009.

B2.Copy of the Tax invoice issued by Shri Sabhari Motor  for Rs.20,000/-

     Dtd.02.01.2008

Witness examined for the complainant:

PW1. Suresh(Complainant)

X1  Inspection report.

Witness examined for the opposite party:

RW1.Sasikumar, Kerala Auatomobiles Ltd, Aralumoodu.PO,

            Neyyattinkara, Thiruvananthapuram.                                                                                Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT.