BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2009 AGAINST C.C.NO.95 OF 2007 DISTRICT CONSUMER FORUM SRIKAKULAM
Between:
Piaggioa Vehicles Limited
rep. by its Managing Director
101 B/102, Phoenix Bund Garden Road
Pune-411 001
Appellant/opposite party No.2
A N D
1. Patnana Durga Rao S/o Satyanarayana
Hindu, aged 50 years, owner of Three Wheels
Goods Vehicle (LMV) bearing No.AP 30U 5757
R/o Gembali Street, Veeraghattam Mandalam
Srikakulam District
Respondent/complainant
2. Saptagiri Automobiles
rep. by its Proprietor
Chimidi Surapa Naidu
S/o Narayana Naidu, Hindu
Aged 38 years, near Krishna Park
Srikakulam Town and District
3. ICICI Bank Ltd., rep. by its Manager
2nd Floor, Fathima Plaza
Near RTC Complex
Vizianagaram-535 003
Respondents/opposite parties No.2 & 3
Counsel for the Appellant Sri G.Ananda Rao
Counsel for the Respondent No.1 Sri K.V.Subrahmanya Narusu
Counsel for the Respondent No.2 Sri Aravala Rama Rao
Counsel for the Respondent No.3 Sri N.Harinath Reddy
OF 2009 AGAINST C.C.NO.95 OF 2007
Between:
Sapthagiri Automobiles
rep. by its Proprietor
Kimidi Surapa Naidu
S/o Narayana Naidu, Hindu
Aged 39 years, near Krishna Park
Srikakulam Town and District Appellant/opposite party No.1
A N D
1. Patnana Durga Rao S/o Satyanarayana
Hindu, aged 51 years, owner of Three Wheels
Goods Vehicle (LMV) bearing No.AP 30U 5757
R/o Gembali Street, Veeraghattam Mandalam
Srikakulam District
Respondent/complainant
2. Piaggioa Vehicles Limited
rep. by its Managing Director
101 /B/102, Phoenix Bund Garden Road
Pune-411 001
3. ICICI Bank Ltd., rep. by its Manager
2nd Floor, Fathima Plaza
Near RTC Complex
Vizianagaram-535 003
Respondents/opposite parties No.1 & 3
Counsel for the Appellant Sri Aravala Rama Rao
Counsel for the Respondent No.1 Sri K.V.Subrahmanya Narusu
Counsel for the Respondent No.2 Sri G.Ananda Rao
Counsel for the Respondent No.3 Sri N.Harinath Reddy
F.A.No. 497 OF 2009 AGAINST C.C.NO.95 OF 2007
Between:
Patnana Durga Rao S/o Satyanarayana
Hindu, aged 52 years, owner of Three Wheels
Goods Vehicle (LMV) bearing No. AP 30U 5757
R/o Gembali Street, Veeraghattam Mandalam
Srikakulam District Appellant/complainant
A N D
1. Saptagiri Automobiles
rep. by its Proprietor
Khimidi Surapa Naidu
S/o Narayana Naidu, Hindu
Aged 40 years, near Krishna Park
Srikakulam Town and District
2. Piaggioa Vehicles Limited
rep. by its Managing Director
101 B/102, Phoenix Bund Garden Road
Pune-411 001
3. ICICI Bank Ltd., rep. by its Manager
2nd Floor, Fathima Plaza
Near RTC Complex
Vizianagaram-535 003
Respondents/opposite parties
Counsel for the Appellant Sri K.V.Subrahmanya Narusu
Counsel for the Respondent No.1 Sri Aravala Rama Rao
Counsel for the Respondent No.2 Sri G.Ananda Rao
Counsel for the Respondent No.3 Sri N.Harinath Reddy
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
FRIDAY THE TWENTY SIXTH DAY OF NOVEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The three appeals are directed against the order of the District Forum, Srikakulam in C.C.No.95 of 2007. Hence, all the appeals are being disposed of by a common order.
2. The facts of the case relevant for disposal of the appeal are that the complainant purchased a three wheeler goods vehicle from the opposite party no.1 on 19.6.2006 for a consideration of `1,82,750/-. The opposite party no.2 is the manufacturer of the vehicle and the opposite party no.3 is the financer of the vehicle. The complainant has submitted that there were certain defects as starting problem, non-functioning of the reverse gear and on the whole the vehicle was not running properly. The complainant stated to have taken the vehicle to the opposite party no.1 on 20.12.2006 for rectifying the defects of the vehicle which was kept with the opposite party no.1 for two months and the opposite party no.1 stated to have collected an amount of `11,998.50ps towards charges for repairing of the vehicle. The vehicle was stated to have delivered to the complainant on 21.2.2007 whereon it was reportedly sent for repairs on 5.3.2007 at Visakhapatnam and the complainant had to suggest on the premise that the vehicle used to stop for every five kilometers due to the defect in the engine and on 17.3.2007 the vehicle was stated to have been taken to the opposite party no.1 again for the repairs on which occasion the complainant has paid an amount of `1,966/- for repairing of the engine.
3. Acting upon the terms and conditions of the warranty the complainant has got issued notice dated 27.4.2007 to the opposite parties no.1 and 2 demanding for replacement of the vehicle with a new vehicle. On 26.5.2007 the opposite party no.3 seized the vehicle for non-payment of the instalments by the complainant. The complainant had sought for replacement of the vehicle with a new vehicle or in the alternative for payment of the cost of the vehicle `1,82,750/- with interest @ 24% per annum, `75,000/- towards loss sustained by him for keeping the vehicle idle and `20,000/- towards expenses incurred by the complainant for repairs of the vehicle and `50,000/- towards damages as also `10,000/- towards costs of proceedings. The complainant has sought direction to the opposite party no.3 for release of the vehicle and for payment of `50,000/- by the opposite party no.3 on the premise that the repossession of the vehicle was illegal.
4. The opposite party no.1 filed counter which was adopted by the opposite party no.2. It was contended that the complainant has purchased the vehicle for commercial purpose. The defects mentioned in the complaint stated to have arisen due to negligent driving of the vehicle on the hilly area with it being overloaded without proper precautions being taken by unskilled drivers who were said to have been changed frequently. It was contended that the complainant did not get the vehicle for check up in stipulated period as mentioned in the warranty and that the warranty was given for self motor and that the complainant complained about the defect in the self motor after lapse of the warranty period. The complainant said to have not taken the vehicle for service no.1, 3 and 5 as per the warranty manual.
5. The opposite party no.3 has contended that the vehicle was hypothecated to them as security for payment of the loan. The opposite party no.3 has contended that it is entitled to reposes the vehicle in the event of default in payment of the amount by the complainant and that the complainant had failed to make payment of the amount. The vehicle was said to have repossessed by following the procedure.
6. The parties have filed their respective affidavits besides the documents Exs.A1 to A21 and B1 to B8.
7. The District Forum has allowed the complaint against the opposite parties no.1 and 2 to replace the vehicle with a new vehicle or in the alternative pay an amount of `1,82,750/- out of which an amount of `1,33,814/- was directed to be paid to the opposite party no.3 and the balance amount to the complainant.
8. The point for consideration is whether the order of the District Forum suffers from misappreciation of fact or law?
9. There is no dispute disputing the facts that the complainant had purchased three wheeler goods vehicle from the opposite party no.1 and manufactured by the opposite party no.2 on finance provided from the opposite party no.3. The loan was to be paid by way of equated monthly instalments. According to the opposite party no.3 regular and timely payment was the essence of the contract and in case the complainant makes any default in payment of the monthly instalments the opposite party no.3 had the right, authority to demand for the due and reposes the vehicle. It was contended on behalf of the opposite party no.3 that the complainant has committed default in paying EMI’s from 22.3.2007, an amount of `38,079/- was due and by the date of repossession of the vehicle the complainant was due an amount of `30,000/- which was not cleared off even after a notice to the effect was issued to him.
10. During pendency of the complaint the complainant has filed I.A.No.182 of 2007 which was allowed on 11.7.2007 directing the opposite party no.3 to release the vehicle subject to payment of `30,000/- by the complainant. The complainant has paid the amount and got released the vehicle from the possession of the opposite party no.2. The complainant and the opposite party no.3 have not filed the hire purchase agreement which is the basis for determining the rights and liabilities between the complainant and the opposite party no.3. In the absence of filing of the hire purchase agreement, the only document placed on record is the pre-sale letter dated 4.6.2007 issued by the opposite party no.3 to the complainant wherein the complainant was informed that the vehicle was taken into possession by the opposite party no.3 due to non-payment of the contractual dues in terms of loan-cum-hypothecation agreement NO.LWSKK00007519414 dated 3.8.2006. The complainant has not disputed his entering into the loan cum hypothecation agreement with the opposite party no.3. Therefore, it can be held what is stated in Ex.A20 was being stated by invoking the terms and conditions of the loan-cum-hypothecation agreement.
11. It is pertinent to note that the complainant has not denied the contractual due, `30,000/- as on the date of repossession of the vehicle by the opposite party no.3. The opposite party no.3 has given opportunity to the complainant to pay the overdue charges with interest @ 24% per annum within seven days from the date of the pre-sale letter and on payment of the amount he was requested to take back the vehicle and on his failure to pay the amount, the complainant was requested to provide the opposite party no.3 the RC Book, Insurance Policy, Tax payment Certificate and all other relevant documents. Admittedly, the complainant has not paid the overdue charges to the opposite party no.3. Therefore, insofar as the deficiency in service said to have been alleged against the opposite party no.3 is concerned, there is no any such deficiency of service rendered by the opposite party no.3 which acted in terms of the loan-cum-hypothecation agreement.
12. The complainant has taken the vehicle for the first time to the opposite party no.1 for service. The job card dated 2.11.2007 indicates the complaint “ vehicle stopped in running condition” and it shows replacement of certain parts such as head gasket, piston ring, earth cable etc. The complainant has got issued notice dated 27.4.2007 demanding the opposite parties no.1 and 2 for replacement of the vehicle with a new vehicle or in the alternative to pay the cost of the vehicle besides compensation and damages. Both parties relied upon the warranty manual wherein it is categorically mentioned that the warranty service facilities are provided subject to the terms and conditions mentioned therein as also those parts which are specifically mentioned can only be made subject to the warranty. At page No.25 the limitations of warranty have been mentioned that the warranty was furnished for one year or 36000 kms whichever is earlier and that the warranty is rendered null and void in case the vehicle was not serviced as per the schedule prescribed in the warranty booklet, it was also made a condition that any failure occurred due to extraneous reasons like overloading or abuse of three wheeler, the warranty was treated as null and void.
13. The list of items which are not covered under warranty as provided in the warranty manual are all rubber items, plastic components, bulbs, fuses, electrical items, flasher, control switches, all seats and backrest, soft top assembly, all standard hardware items, all types of cables, clutch plates, break shoes, consumable items such as all types of oils and filters and the components with normal wear and tear. The warranty was made not applicable to any damage to the painted surface due to pollution, non-usage of the vehicle in accordance with the operation and maintenance manual, misuse or adulteration of oil, fuel etc., and any damage caused by accident. The proprietary items on which warranty provided are starter motor, tyres, tubes, fuel filter, fuel injector, fuel injection pump, battery, blow plug, pre-heater device.
14. The contention of the opposite parties no.1 and 2 is that the complainant has violated the terms and conditions of the warranty manual by using the vehicle on hilly roads and also overloading the vehicle as also not taking the vehicle for service numbers no.1, 3 and 5. A perusal of the warranty manual would show that free service coupons No.1 and 5 are found intact which indicates that the complainant had not taken the vehicle for the free service required to be done within 30 days or 750 to 1000 kms in respect the first service and within 210 days or 20,500 to 21,000 kms in respect of the fifth service. The concessional service coupon no.6 would show that the complainant had opted for concessional service 21.2.2007. The condition in regard to the regular service of the vehicle is not complied with in it’s entirety, by the complainant. The opposite parties no.1 and 2 have not proved their plea that the vehicle was not taken for 3rd free service and that it was used in hilly area and being overloaded while in use.
15. The complainant has mentioned in the notice dated 27.4.2007 that the vehicle was taken for repairs on 20.12.2006 with the complaints, “starting problem, improper functioning of the reverse gear and the vehicle being stopped automatically for every five kilometers when it was plied on the road” for which the opposite party no.1 collected an amount of Rs.11,998/- and again after 10 days thereafter i.e., 21.2.2007 self motor stopped functioning whereon the opposite party no.1 had issued warranty claim form on 3.3.2007 on the premise that the self motor could be repaired at Aruna Industries Visakhpatnam, the sister concern of the opposite party no.1. Thereafter, the complainant has taken the vehicle again on 17.3.2007 to the opposite party no.1 with the very same complaints.
16. During pendency of the complaint, the complainant has applied to the District Forum for appointment of a commissioner to inspect the vehicle as to its condition. The District Forum has appointed a Commissioner who had inspected the vehicle with the assistance of P.Srinivas who issued letter dated 29.11.2007 stating that he had experience as a mechanic for 10 years and he had inspected the vehicle and found that the vehicle requires little repairs which could be rectified by the mechanics of the opposite parties no.1 and 2. The warranty claim form dated 3.3.2007 was issued by the opposite party no.1 and it contains self problems as the nature of the complaint. Sri Aruna Industries has issued invoice dated 5.3.2007 for `1703/- and the cash receipt dated 5.3.2007 for `169/-. These items have been covered by the warranty manual. However, the items mentioned in receipts issued by the opposite party no.1 contained the items which are not covered by the warranty manual. The District Forum has allowed the complaint in toto by directing for replacement of the three wheeler with a new three wheeler or in the alternative for payment of the cost of the vehicle which is not sustainable in the light of the judgment of the Hon’ble Supreme Court in “Maruti Udyog Limited Vs Sushil Kumar Gabgotra” reported in II (2006) CPJ 3 (SC) wherein the Apex Court held that in case of a vehicle sold with defective parts, the vehicle as a whole cannot be directed to be replaced and those parts which are found to be defective can only be directed to be replaced.
17. The complainant had incurred an amount of `1869/- despite the warranty was in force by the time the defective parts were required to be replaced. The mechanic who assisted the commissioner had opined that the vehicle repossessed by the opposite party no.3 was in working condition and it required only a little repairs. The complainant has neglected to pay the instalments due to the opposite party no.3 whereby the opposite party no.3 had repossessed the vehicle and ever since it was idle the District Forum directed the opposite party no.3 to release the vehicle. The complainant has neglected to maintain the vehicle by not taking it for regular service in terms of the warranty manual. Therefore, the complainant for his negligence cannot seek relief for replacement of the vehicle or the cost of the vehicle. The opposite parties no.1 and 2 cannot be negligent by not acting in accordance with the terms of the warranty manual. In the circumstances, we are of the opinion that the complainant is entitled to the amount of `1,869/- towards amount he had incurred for repair of the vehicle and an amount of `2000/- towards compensation for suffering mental tension and deprivation of use of the vehicle for a period of two months.
18. In the result F.A.No.743 of 2009 and F.A.Nos.742 of 2009 filed by the opposite parties no.1 and 2 are allowed. The relief granted by the District Forum is modified and restricted to the payment of `3869/- payable by the opposite parties no.1 and 2 to the complainant. The appeal F.A.No.497 of 2009 is dismissed. No costs.
MEMBER
MEMBER
Dt.26.11.2010
KMK*
