BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C. Preethi, M.A., LL.B., Member
Sri R. Ramachandra Reddy, B.Com., LL.B., Member
Monday the 27th day of June, 2005
C.D.No. 200/2003
Elluru Praveen Kumar,
S/o. Elluru Prahladaiah,
H.No. 5/66, Near Eswar Temple,
Kosigi (V), and (M),
Kurnool Dist. . . . Complainant represented by his
counsel Sri C. Jogarao, Advocate
-Vs-
1. M/s Adoni Automobiles,
Dealers for Arjun Motors (P) Ltd,
D.No. 15/476/B,
Victoria Pet, Gosha Hospital Road,
Adoni.
- The Proprietor Sri Rakesh Nakathe,
M/s Adoni Automobiles,
D.No. 15/476/B, Victoria Pet,
Gosha Hospital Road, Adoni.
. . . Opposite party
- Smt Ranjitha,
W/o. Late Sri Rakesh Nakathe,
C/o Adoni Gas Company,
Dealers in HP Gas,
Opp. Church, Victoria Pet,
Madhavaram Road, Adoni. … Opposite party
- Sevitha,
D/o. Late Sri Rakesh Nakathe,
Rep by Smt Ranjitha,
C/o Adoni Gas Company,
Dealers in HP Gas,
Opp. Church, Victoria Pet,
Madhavaram Road, Adoni.
- M/s. Arjun Motors (P) Ltd,
150, Bandapura (V),
Marsur (P), Anekal (T),
Bangalore Dist 562 106. . . . Opposite party 1, 4 and 5 are repre-
sented by their counsel
Y. Sreenivasulu, Advocate
O R D E R
(As per Smt C.Preethi, Hon’ble Lady Member)
1. This CD complaint of the complainant is filed under section 12 of C.P. Act, 1986, seeking a direction on the opposite parties to replace the vehicle or to refund the amount of Rs. 1,90,000/-, Rs. 25,000/- towards compensation for mental agony and cost of the complaint and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant being attracted by the advertisement of the opposite parties purchased Arjun Auto passenger vehicle bearing No. AP 21-V-6674 for eaking his livelihood from opposite party No.1, who is the authorized dealer of opposite party No.5 for Rs.
1,90,000/- on 4.7.2003 and opposite party No.1 issued an invoice and sale certificate on 7.7.2003. The opposite party No.2 is the proprietor (died) opposite party No.3 and 4 are the legal representatives of opposite party No.2 and opposite party No.5 is the manufacturer of the said vehicle. At the time of the purchase the opposite parties promised 25 kilometer/ liter Mileage, low cost of spares and maintenance and also issued warranty for a period of 6 months from the date of sale or 8,000 Kms whichever is earlier and free sales services at specified intervals. The said vehicle purchased by the complainant started giving extensive troubles, and malfunctioning and did not gave the assured mileage from the date of delivery. The oil filter in the engine failed, which was not replaced in the first service, as a result the piston ring in the engine failed, clutch plate in the gear box worn out, engine heading pipes connecting the chasis started cracking up, alteration made by inserting a small dia pipe. The tower connecting to the suspension also started cracking and front height of the vehicle started inclining and some parts are welded and there is deformity in the shape of the vehicle. The front tires worn out by 50 % due to misalighment of the front wheel all these problems are due to manufacturing defects and as the vehicle being defective and the defects were such that they could not be set right. The complainant approached opposite party No.1 complaining about the mileage and trouble and mal functioning of the vehicle, and opposite party No.1 gave evasive reply and did not do service free of charge and on every visit the complainant paid charges, and the vehicle was giving frequent trouble. As the repairs were frequently the complainant approached opposite party No.1 to exchange the vehicle or refund the amount of the vehicle and opposite parties did not respond. The said vehicle was again under repair and the complainant left the vehicle in the opposite party No1 premises and it was lying with them as it could not be repaired and became non-functional. The complainant submits that the vehicle developed defects during the warranty period for which the appellants are responsible and these by alleges deficiency service on part of opposite parties.
3. In support of his case the complainant relied on the following documents Viz (1) Invoice dt 7.7.2003 issued by Adoni Auto mobiles in favour of complainant (2) Sale certificate dt 7.7.2003 in Form 21 issued by Adoni Automobiles infavour of complainant (3) owner’s manual (4) concept and salient features of Arjun 500 Multi Utility vehicle (5) vehicle invoice dt 8.9.2003 cash bill for Rs.200/- issued by Adoni Automobiles vehicle invoice dt 8.9.2003 cash bill for Rs. 547/- issued by Adoni Automobiles (6) notice dt 19.9.2003 issued by Adoni Division consumer protection council to Adoni Automobiles Adoni (7) letter dt 27.9.2003 of Adoni Automobiles to the complainant (8) Reply notice dt 29.9.2003 to the President, Adoni Division Consumer Protection Counsel. Adoni (9) office copy of letter dt 6.10.2003 of complainant to Adoni Automobiles (10) courier receipt-acknowledgement of opposite party No.1 as to the receipt of Ex A.9 (11) letter dt 7.10.2003 of opposite party’s counsel to the complainant (12) Letter dt 11.10.2003 of opposite party to the complainant (reply letters for Ex A.9) (13) Letter dt 10.11.2003 of opposite party No.2 to the complainant (14) Office copy of letter dt 19.11.2003 of complainant to opposite party No.1 and (15) Courier receipt as Ex A.14 and sent to opposite party No.2, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex A.1 to A.15 for its appreciation in this case. The complainant also relied on the third party affidavits of G.Khadar Basha (Mechanic), K.Anees Basha and C. Dastagiri and caused interrogatories to the opposite party No.2.
4. In pursuance to the notice of this Forum as to this case of the complainant the opposite party 1, 2 and 5 appeared through their advocate and filed their written version and opposite party No.3 and 4 remained exparte through out the case proceedings.
5. The written version of opposite party No.5 (manufacturer) denies all the material allegations and submits that it has sold New Arjun 500, passenger
vehicle to opposite party No.1 and 2 (M/s Adoni Automobiles ) who inturn sold the said vehicle to the complainant. The said vehicle was checked and certified for road worthiness by Government of India, vehicle testing Authority, M/s Vehicle Research Development Establishment, Ahemad Nagar and all the parts being used are of the standard prescribed and tested by testing agencies. It further submits that the complainant at no time brought to the knowledge of opposite party No.5, that he has some problem in the vehicle or facing problem with opposite party 1 and 2 regarding service of the vehicle, the complainant run the vehicle without taking into consideration the instructions provided in the owners manual and had got problems in the vehicle and opposite party No.5 never agreed for replacement of vehicle and agreed only on parts which are found manufacturing defects.
6. The opposite party No.5 further submits that mileage which has been mentioned in salient features are applicable only on ideal running conditions and not on normal road. The complainant did not report any specific defect in the said vehicle during warranty period to the opposite party No.5 and even did not utilize free services available during warranty period. It is the complainant who is to be blamed for any defects in the said vehicle for rough handling and loading more than capacity prescribed in the manual. Thus, there is no deficiency of service on part of opposite party No.5 and seeks for the dismissal of complaint with costs.
7. The written version of opposite party No.1 and 2 denies the complaint as not maintainable either in Law or on facts and submits that there was not problem in the vehicle purchased by the complainant since the date of purchase and there is no defect in the said vehicle and the complainant not reported any specific defects in the vehicle purchased by him. It further says the vehicle was handled without keeping any regard for its maintenances as the vehicle was under various hands and the complainant did not suffer any damages and seeks for the dismissal of complaint.
8. In substantiation of its case the opposite parties did not file any documents and opposite party No.2 filed it sworn affidavit in reiteration of written version as defence.
9. Hence, the point for consideration is whether the complainant has made out any considerable defect in the vehicle purchased and deficient conduct on the part of the opposite parties in attending the said defects and in lending the required services and in considering the refund of the cost of the vehicle and incidental expenditure incurred on the said vehicle.
10. As the complainant’s contention as to the purchase of the said Auto with his amounts as was not denied by the opposite parties, there appears no much difficulty in appreciating the Ex A.1, invoice dt 7.7.2003 issued by Adoni Automobiles in favour of the complainant, in the same way sale certificate dt 7.7.2003 as Ex A.2, owners manual as Ex A.3 concept and sailent features of said vehicle as Ex A.4 and vehicle invoice dt 8.9.2003, as they pertain to the vehicle purchased by the complainant.
11. Both the pleadings of complainant and opposite party No.5 allege opposite party 1 and 2 is an authorized dealer of opposite party No.5 for selling the said vehicle to the complainant.
12. The complainant in his complaint averments alleges several defects in the Auto purchased by him and inspite of changing of some spare parts the said defects could be removed, there after the said vehicle was handed to the opposite parties as the complainant observed in the said Auto non rectification to the complaints made by the complainant inspite of repairs. The said fact was reiterated in the complainant’s sworn affidavit dt 11.4.2004 neither disputed by the opposite parties by causing any relevant interrogatories to the complainant nor disputed them in the sworn affidavit of the opposite party No.2 to discredit the genuineness and the worthy of the contendent of the complaint avernments and sworn affidavit avernments of the complainant and the inference of it which provides the existence of an incurable defects, which in the circumstances can be credited to its manufacturing. There is no reply to the interrogatories caused by the complainant to the opposite parties and there is no denial as to the failure of oil filter and piston ring in the engine, clutch plate in the gear box, engine heading pipes connecting to chasis, cracking and alternations made by inserting a small dia pipe and tower connecting to the suspension cracking and the said vehicle not giving mileage as promised in Ex A.4 and there appears no reason as to why the opposite parties did not made any endeavor to discredit the fact of attending the supra said defects, nor there appears any technical material from the opposite parties side to discredit the circumstances stated in the report of G.Khadar Basha as to when the said defects could be considered inherent attributable to its manufacturing.
13. The inspection report of G.Khadar Basha says, after inspecting of the said Auto produced before him, he is of the opinion that the defect in the said Auto is manufacturing defect and neither can be rectified nor can be repaired. The said report is not questioned by the opposite parties by placing any objections to the said report to discredit genuineness, the said report is supported by a sworn affidavit, hence in remaining worthy of acceptance. The third party sworn affidavit of C. Dastagiri, who is an Auto Mechanic, says the said Auto was frequently coming for repairs and the said Auto was giving poor mileage and defects in the said Auto could not be repaired as they are manufacturing defects. The other third party sworn affidavit of K.Anees Basha who was worked as a driver to the said Auto says that the said Auto was not functioning properly from the day of purchase, and he was taking the said vehicle to the show room for repair almost every alternate day and services are not properly attended by opposite party No.1 and opposite party No.1 did not responding for replace of parts within warranty period and thereafter the said vehicle was handed over to the opposite party No.1 and 2 and when went to take the delivery the opposite party No.2 demand to sign on blank paper.
14. Hence, in the light of the discussion made supra in reference to the version of third parties K.Anees Basha and C.Dastagiri and the inspection report of G.Khadar Basha, as to when the said defect could be considered as manufacturing one and the conduct of opposite parties in not endeavoring for its rebuttal by evidence of any technically knowing source, the said defects in the said Auto purchased by the complainant is held none else than the manufacturing defect, especially when the opposite parties sides has not made endeavor to get the said Auto technically examined as contemplated under section 13 (1) © of C.P. Act, inspite of the complainant alleging from the inception the said defect in the purchased Auto as inherent and manufacturing one. In the absence of any cogent technical material the said defects in the said vehicle of the complainant was not a manufacturing one and any cogent material as to non-compliance of the manual instructions or improper
maintenance of the said Auto the said circumstance will not be available to the opposite parties as an excuse.
15. Hence, in the circumstances stated above as leads to an irresistible conclusion to the effect that the said defects in the said vehicle was on account of manufacturing defect and nuneless than that especially when there is no rebuttal evidence placed by the opposite parties.
16. The purchase of the said vehicle by the complainant being for a considerable value of Rs. 1,90,000/- and there by he is entitled as a matter of right as a consumer for a defect free Auto and the defects in the said Auto could not be rectified as appears to be with incurable manufacturing defect, the complainant is entitled for its replacement with new one or the amount paid by the complainant for the purchase of said vehicle from the opposite parties as the opposite parties by their lapsive conduct of non responding to the approaches of the complainant in the redressal of defects of the said vehicle not only driven the complainant to the Forum for redressal of the grievance, but also put him to much mental agony and suffering and he is entitled to Rs. 10,000/- as compensation damages and Rs. 1,000/- as costs.
17. In the result, the complaint is allowed directing the opposite party No.3 and 4 (legal heirs of OP NO.2) and opposite party No.5 (manufacturer) jointly and severally to replace defect vehicle with new vehicle or pay Rs. 1,90,000/- with 12% interest from the date of purchase of the said vehicle till realization along with Rs. 10,000/- as compensatory damages for mental agony suffered and costs of Rs. 1,000/- within a month of the receipt of this order.
Dictation to Stenographer Typed to the dictation corrected by us pronounce in the Open Court this the 27th day of June 2005.
Sd/-
PRESIDENT
Sd/- Sd/-
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite parties
-Nil- -Nil-
List of Exhibits Marked
For the complainant For the opposite parties
Ex A.1 Invoice dt 7.7.2003 issued by Adoni - Nil
Auto mobiles in favour of complainant.
Ex A. 2 Sale certificate dt 7.7.2003 in
Form 21 issued by Adoni Automobiles
infavour of complainant.
Ex A.3 owner’s manual.
Ex A.4 concept and salient features
of Arjun 500 Multi Utility vehicle.
Ex A.5 vehicle invoice dt 8.9.2003 cash
bill for Rs.200/- issued by Adoni Automo-
biles vehicle invoice dt 8.9.2003 cash bill
for Rs. 547/- issued by Adoni Automobiles.
Ex A.6 notice dt 19.9.2003 issued by Adoni
Division consumer protection council to
Adoni Automobiles Adoni.
Ex A.7 letter dt 27.9.2003 of Adoni Automo-
biles to the complainant.
Ex A.8 Reply notice dt 29.9.2003 to the
President, Adoni Division Consumer
Protection Counsel. Adoni.
Ex A.9office copy of letter dt 6.10.2003 of
complainant to Adoni Automobiles.
Ex A.10 courier receipt-acknowledgement
of opposite party No.1 as to the receipt of
Ex A.9.
Ex A.11 letter dt 7.10.2003 of opposite
party’s counsel to the complainant.
Ex A.12 Letter dt 11.10.2003 of opposite party
to the complainant (reply letters for Ex A.9).
Ex A.13 Letter dt 10.11.2003 of opposite party
No.2 to the complainant.
Ex A.14 Office copy of letter dt 19.11.2003 of
complainant to opposite party No.1.
Ex A.15 Courier receipt as Ex A.14 and sent to
opposite party No.2.
Sd/-
PRESIDENT
Sd/- Sd/-
MEMBER MEMBER
