By Sri.Ananthakrishnan. P. S, President:
This is a complaint filed under Section 12 of Consumer Protection Act1986.
2. The Complainant’s case in brief is as follows:-
The complainant is the owner of Swaraj Mazda Tipper of SML IZUZU Limited bearing Registration No.KL-12-L-1400. He purchased this vehicle on 20.08.2018 and thereafter, it is being used for loading and unloading building materials as a public carrier. He is depending upon the income derived from this vehicle for his livelihood. The first and second Opposite Parties are authorized service centers of SML IZUZU Limited. The Complainant is doing repair work of this vehicle by the first Opposite Party. On 15.07.2020, while the vehicle was running, a complaint was developed to the gear box and therefore immediately the Complainant took the vehicle to the workshop of first Opposite Party. They demanded Rs.3,555/- for the repair as the cost of oil and spare parts. The Complainant has also purchased spare parts worth Rs.1,330/- from outside. Since, the Complainant is depending upon the income from this vehicle for his livelihood, he purchased spared parts by utilizing Rs.1,330/-. But, he has not paid Rs.3,555/- to the first Opposite Party, since, there is warranty to the vehicle. The vehicle has been purchased on 20.08.2018 and as per the terms and condition of warranty, the vehicle is having engine warranty up to 2 years with unlimited kilo meters and having warranty for a period of 3 years in respect to the WV-26 model engine. Thus, the time of purchase, the Complainant was informed that the vehicle carries warranty for 3 years. The vehicle is having manufacturing defect. Its parts are not having quality and thereby it developed mechanical defects in gear box. Since, there is warranty, the complainant need not pay the cost of the spare parts and labour charge. The Complainant intimated the first Opposite Party about the warranty. Even then, they wanted the amount. The first Opposite Party forcefully snatched the vehicle and not permitted to take the vehicle outside. The first Opposite Party has no right to prevent the Complainant from taking vehicle outside. So it amounts to unfair trade practice and deficiency in their service. The vehicle is having finance and due to the attitude of first Opposite Party, the Complainant was unable to pay the interest of the loan. The Complainant was getting Rs.2,500/- per day from the vehicle and therefore the Opposite Parties are liable to pay the same till the vehicle released from their custody. Hence, this complaint to direct the Opposite Parties to release the vehicle, to direct the Opposite Parties to refund Rs.1,300/- and to declare that the Opposite Parties are not entitled to get Rs.3,555/- being the cost of spare parts and repairing works, to direct the Opposite Parties to pay a sum of Rs.2,500/- each per day towards the loss, Rs.20,000/- as compensation and Rs.25,000/- for mental agony and Rs.5,000/- toward the costs.
3. The first and second Opposite Parties filed version which is as follows:-
They admitted that the Complainant is the owner of the vehicle. They also admitted that the Complainant produced this vehicle for repair on 15.07.2020 and they charged Rs.3,636/-. But, the Complainant has not paid the amount. There is a warranty of 2 years for SML IZUZU vehicle. But, there is no warranty to this vehicle for 3 years because the vehicle of Complainant is not WV-26 model vehicle. The Complainant failed to bring the vehicle for the periodical service. So the defects to gear box is due to misuse and lack of proper maintenance and wear and tear. Therefore, there is no deficiency and unfair trade practice from their service. Hence this complaint is liable to be dismissed.
4. Third Opposite Party filed version which in short is as follows:- The complaint is not maintainable. They denied that the Complainant is depending upon the income derived from this vehicle. It is being used for commercial purpose. Therefore, the Complainant is not a consumer. The defects occurred to gear box is due to misuse and improper use of vehicle with inexperience driver and lack of proper maintenance to which there is no insurance coverage. They admitted that the first Opposite Party repaired the vehicle of the Complainant and the complainant has not paid the repair charge. This complaint is lack of merits,. Hence, it is to be dismissed.
5.On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency of service or unfair trade practice
on the part of Opposite Parties?.
2. Reliefs and Costs.
6. The evidence in this case consists of oral testimony of PW1, OPW1, OPW2, Ext.A1 to A4 and Ext.B1 to B6. Both sides heard.
7.Point No.1:- It is an admitted fact that the Complainant is the owner of Tipper lorry bearing Registration No.KL-12-L-1400 and he brought the vehicle to the first Opposite Party on 15.07.2020 due to a complaint in the gear box. It is also an admitted fact that the first Opposite Party repaired the vehicle and demanded Rs.3,555/- as the cost of oil and spare parts. It is also an admitted fact that the Complainant purchased spare parts for Rs.1,300/- from outside for this repair. Admittedly, the Complainant has not given Rs.3,555/- and so it is evident that the first Opposite Party has not given back the vehicle to the Complainant. The specific case of Complainant is that his vehicle is having 3 years warranty and so, he is not bound to give the repair charge. Though, Opposite Parties admitted that there is 2 years warranty to the vehicle, according to them, the defect to gear box is due to misuse and lack of proper maintenance and wear and tear.
8. PW1 is the Complainant. OPW1 is the service Manager of first and second Opposite Parties and OPW2 is the authorized Service Manager of third Opposite Party. Both of them deposed their case. As already stated, according to the Complainant, since, his vehicle is having two years warranty he is not bound to give repair charge and he is entitled to get back Rs.1,300/-. Though Opposite Parties admitted that vehicle is having 2 years warranty, according to them the defect is due to the misuse and lack of proper maintenance and wear and tear. But, absolutely there is no evidence to show that the complaint is due to the misuse and lack of proper maintenance and wear and tear. Except the oral testimony of OPW1 and OPW2, they are not established it by expert evidence. But, it is evident that this vehicle is having 2 years warranty. No dispute that the Complainant has purchased the vehicle on 20.08.2018 and the repair was done on 15.07.2020 ie. Within two years. So the Opposite Parties are not entitled to get anything towards the repair charge. It is an admitted fact that they demanded Rs.3,555/- and also obtained spare parts from Complainant who purchased it from outside for Rs.1,300/-. So they are bound to give back Rs.1,300/- and not entitled to get Rs.3,555/-. So, the Opposite Parties are not entitled to retain the vehicle. Therefore, there is deficiency in their service and unfair trade practice also. So the Complainant is entitled to get release of the vehicle and Rs.1,300/- and not bound to give Rs.3,555/- to the Opposite Parties. So also he is entitled to get compensation. He wants Rs.20,000/- as compensation and Rs.25,000/- for mental agony. These are exorbitant amount. So, the Complainant is entitled to get Rs.5,000/- as compensation and Rs.5,000/- towards mental agony. Since this Commission ordered to release the vehicle after depositing Rs.3,626/- by the Complainant as per order in IA 186/2020, there is no need of further order directing the Opposite Parties to return the vehicle. The complainant is entitled to get Rs.1,000/- towards cost. Thus this point is answered in favor of Complainant.
9. Point No.2: Since point No.1 is found in favour of Complainant, he is entitled to get the reliefs as discussed above.
In the result, the complaint is allowed with cost. Opposite Parties are directed to give back Rs.1,300/- (Rupees One Thousand and Three Hundred Only) to the Complainant and it is declared that the Opposite Parties are not entitled to get Rs.3,555/- (Rupees Three Thousand Five Hundred and Fifty Five Only) from the Complainant. The Opposite Parties are also directed to pay Rs.5,000/- (Rupees Five Thousand Only) as compensation and Rs.5,000/- (Rupees Five Thousand Only) for mental agony and Rs.1,000/- (Rupees One Thousand Only) as cost. They are directed to pay these amounts to the Complainant within 30 days from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 23rd day of November 2022.
Date of Filing:-23.07.2020.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the Complainant:-
PW1. Javad Areekkal. Driver.
Witness for the Opposite Parties:-
OPW1. Darshith. A. Service Manager, Masco
Motors.
OPW2. T. M. Mathiyalagan. Manager, Service, SML IZUZU
Ltd.
Exhibits for the Complainant:
A1. Copy of Registration Certificate.
A2. Statement of Accounts.
A3. Statement of Accounts.
A4. Copy of Relevant pages Owner’s Manual and Service Book.
Exhibits for the Opposite Parties:-
B1. Copy of Job Card. Dt:05.10.2019.
B2. Tax Invoice. Dt:05.10.2019.
B3. Tax Invoice. Dt:16.07.2020.
B4. Owner’s Manual and Service Book.
B5. Service History (Job card). Dt:27.07.2020.
B6. Production Details.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
