BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 19th day of May 2015
Filed on : 28-06-2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.390/2012
Between
Fr. George Patlatt, : Complainant
Director, Santhwanam Special (By Adv. Tom Joseph, Court road,
School, Block Office road, Muvattupuzha)
Kothamangalam-686 691.
And
1. M/s. Force Motors Ltd., : Opposite parties
Mumbai Pune road, (O.ps by Adv. George Cherian
Akrudi, Pune- 411 035. Karippaparambil, Karippaparambil
Associates, H.B. 48, Panampilly
Nagar, Cochin-36)
2. M/s. Poomkudy Force Ltd.,
Edapally, Kochi-686 024.
O R D E R
Cherian K. Kuriakose, President.
Fr. George Patlatt, Director, Santhwanam Special School, Kothamangalam had applied for appropriate remedies through this original complaint raised by him in the matter of service provided to the school bus by the opposite parties M/s. Force Motors Ltd and M/s. Poomkudy Force Ltd.
The complainant’s case. The complainant is the director of Santhwanam Special School, which is a charitable institution formed for providing free education to poor and mentally retarded children with the benevolence of kind people. The complainant purchased a Force citiline school bus on 16-06-2011 from the opposite party. The opposite party had warranted the vehicle for 36 months of usage or 35,000 kms. The vehicle was registered on 27-06-2011. When the vehicle was taken to the road it started showing troubles with regard to the faulty bolt of the door, defective wipers, defective head lights defect, bonnet complaints and handbrake lever complaint, speedometer was defunct non working of fuel indicator that all these complaints were raised before the opposite parties by the complainant. The complainant was provided with a 2nd hand vehicle under the pretext of giving a the new vehicle false information to the complainant by the opposite party. The vehicle was brought to the garage of the 2nd opposite party by the complainant on 02-07-2011 as directed by Mr. Sabu who was the manager of the 2nd opposite party. Even though some works were seen to have been done to the school bus, on the very next day onwards the bus showed further problems such as increase of leakage water through many points of the body, starting problem etc. Again on 09-07-2011 the vehicle has to be brought before the 2nd opposite party who was the service agent of the 1st opposite party. It was promised by the opposite party that the vehicle would be returned to the complainant after rectifying the defects. Again the bus started showing signs of malfunctioning. So that it had to be returned to the garage of the opposite party after 6 days. Since the school bus was in continuous breakdown condition, the school days of the children had to be cut down. Again on 03-09-2011 the gear lever had shown problems and opposite parties had serviced the vehicle as a regular service and returned the vehicle to him on 05-09-2011. Again it had brake complaint occurred on 10-03-2012 which resulted loss of 6 working days of the children in the school. After the brake complaint occurred on 10-03-2012 the vehicle was released to the complainant on 14-03-2012 . Again the vehicle had to be taken to the 2nd opposite party on 10-04-2012 with gear complaint and it was returned on 04-05-2012. When the school reopened on 04-06-2012 the bus again started showing the signs of brakedown and actually it breakdown in the evening on that day. The recurring defects of the vehicle supplied to the complainant are due to the major manufacturing defect. The opposite parties had supplied a defective second hand vehicle to the complainant by suppressing that fact. The act of the opposite party in supplying defective vehicle to the complainant as a brand new vehicle would amount to deficiency in service and unfair trade practice. The complainant therefore claims compensation of Rs. 5,00,000/-.
2. Notices were issued to the opposite parties 1 and 2 the manufacturer and dealer respectively. The opposite party filed 1 and 2 separate versions of their own contending inter-alia as follows:
3. Version of 1st opposite party. This consumer complaint is not maintainable before this Forum. The vehicle given to the complainant was a brand new vehicle and the allegation that it was used vehicle is denied. The vehicle was registered in the name of the complainant with registration No. KL 44A 7196 on 18-06-2011. The allegations in the complaint are false. The allegation that the vehicle was brought to the garage of the 2nd opposite party on 02-07-2011 is not correct. On 02-07-2011 the vehicle was brought on the direction given by the 2nd opposite party’s manager Shri. Sabu and some works were got done to the vehicle. The vehicle was not showing any concurrent and substantiating defects as alleged. The vehicle was properly being serviced with utmost care and to the satisfaction of the complainant. As per job card the Odometer reading of the vehicle was 26212 kms and the vehicle was got serviced to the utmost satisfaction of the complainant. By the time the vehicle was taken to the garage of the 2nd opposite party on 21-07-2012 as per the job card. It was seen that the odometer had already shown that the vehicle had already run 31172 kms. The allegation that the recurring defects in the complainant’s vehicle was due to the major manufacturing defect in the vehicle. The 2nd opposite party had properly attended to all the service requirements of the complainant’s vehicle and therefore there was no negligence or deficiency in service on the part of the 1st and 2nd opposite parties. The complaint is bereft of any bonafides. The amount of compensation as prayed for of Rs. 5,00,000/- is exorbitant and the complaint is sought to be dismissed.
4. Version of 2nd opposite party. The 2nd opposite party also filed separate version contending inter-alia as follows:
The vehicle was received by the 2nd opposite party after its sale to the complainant for service on 15-07-2011. On 27-07-2011 the vehicle was again brought to the 2nd opposite party which showed an odometer reading at 5697 kms. At that time the odometer was showing 5697 kms. The vehicle was brought to the 2nd opposite party only to do the running repairs. Again at 8518 KMs the vehicle was brought for servicing and it was given service to the complainant with his utmost satisfaction. The 3rd free service was done on 15-10-2011 as per job card. The allegation that the vehicle went breakdown while carrying the children etc. are incorrect. The vehicle had already run 29614 KMs by the time the complaint was preferred. In vehicle was in fact given for running repairs on 21-07-2012 and as per job card No. JC0002121 at odometer reading 31172 kms. The representative of the complainant Shri. Baby had endorsed full satisfaction of the service after the road test. Therefore the allegation that the vehicle had recurrent defects is incorrect, false and denied. The complainant was using the vehicle extensively and it was plying through high ranges and through untarred rural roads between Kothamangalam and Kuttampuzha. As against the seating capacity of 25 students the bus was carrying more than 50 students. Therefore there was no fault or negligence on the part of the opposite party. The complaint is therefore bereft of any bonafides. The amount of compensation prayed is not allowable. The complaint is therefore sought to be dismissed.
5. On the above pleadings the following issues are settled for consideration.
i. Whether the complainant has proved that there was any deficiency of service on the part of the opposite parties?
ii. Was there any incident of unfair trade practice, proved by the complainant?
iii. Is the complainant entitled to get compensation as prayed for?
iv. Reliefs and costs
6. The evidence in this case consisted of the oral evidence of PW1 and Exbts. A1 to A12 on the side of the complainant and the oral evidence of DWs1 to 3 on the side of the opposite parties in addition to Exbt. B1 to B19.
7. Issue Nos. i to iii. The complaint of the complainant in pleading that there was recurrent occurrences of the breakdown for the school bus which it was purchased on 16-06-2011. The bus was seen to have been entrusted to the 2nd opposite party for service and repairs on 2nd July 2011, 3rd September 2011, 15th October 2011, 26th November 2011, 2nd February 2012, 10th March 2012, 4th June 2012, 28th June 2012 and on 21st July 2012. The complainant relied on Exbts. A11 and A12 series of documents to prove these facts. The high light of a complainant is that a brand new vehicle purchased had to be kept in the garage for a total period of 68 days on different occasions. The complainant therefore harps upon the fact that the vehicle had serious manufacturing defect. It was also argued that the opposite parties did not produce the job sheets pertaining to the bus with regard to the complaints made by the complainant on each day. Relying on the decision of the Hon’ble National Consumer Disputes Redressal Commission reported in 2014 (1) CPJ 450 National Commission, the learned counsel for the complainant argued that recurring defects of the vehicle and the failure on the part of the opposite parties to rectify them would prove that the vehicle suffered from manufacturing defects. In this case since the vehicle had to be produced before the service centre of the 2nd opposite party frequently. According to the learned counsel for the complainant the vehicle was suffering from latent manufacturing defects. The amount of compensation claimed by the complainant was also on this score.
8. The learned counsel for the opposite parties however relying on Exbts. B1 to B19 and the oral evidence of the witnesses submitted that all the job cards pertaining to the complained dates have been produced as Exbts. B5 to B17. We have gone through the office copies of the job cards kept by the opposite party in respect of the details of the repairs made. We could not find any serious manufacturing defect reflected through those job cards. The only period when the vehicle was kept with the 2nd opposite party for repairs was in the month of April 2012 when the school was having holidays. The nature of the repair during other dates was only one or two days and during those days it is seen that the vehicle was using its regular monthly service. None of the stable component of the vehicle is seen to have been changed during this period. The main complaints were with regard to the rusting of nut and bolt on the underside of the bus. Complaints with regard to the wiper, plate, complaints with regard to the brake pads and non working of the fuel gauge. Yet another complaints with regard to the leakage of the water which occurred only once during the whole year. It was contended that the vehicle was breakdown on the road on that day the complaint was attended to by their service engineer of the 2nd opposite party and found that it was due to the non-overhauling of all parts periodically. It was a simple mistake which could have been rectified by the regular check up by the drivers which they expected. Therefore on going through the entire documents produced by either side and the oral evidence adduced by the parties, we find that the case of the complainant that there was manufacturing defect on the part of the vehicle purchased by the complainant is incorrect. The recurring defects stated by the National Consumer Disputes Redressal Commission in 2013 (2) CPJ 743 was in respect of a major engine trouble which could not have been repaired by the manufacturer in spite of repeated production of the vehicle to the workshop on 36 occasions during the warranty period. In this case as we have earlier pointed out there is no defects at all on the prime components of the vehicle but the defects were only due to the replacement of the consumables which are required due to usage of the vehicle periodically. However we find that the breakdown charges of Rs. 1,500/- collected during the warranty period. The breakdown work was attended to on 30-06-2012 which was within the period of warranty. It was found that the breakdown was due to the want of lubrication to the accelerator and also due to periodical service. There is no case for the opposite party that the vehicle was not produced for regular and periodical check-up as required in the terms and conditions given to the purchaser at the time of purchase of the vehicle. The non greasing of the accelerator and the proper installation of the electrical wirings and due to oil leakage etc. can be avoided if the service people have done periodical service. Therefore the reason for the breakdown as well could be attributed in a larger way to the service personnel of the 2nd opposite party. We find that by charging breakdown services at Rs. 1,500/- from the customer. The facts of the case is an instance of unfair trade practice and of grave deficiency in service. To that extent we allow the complaint. Regarding all other contentions raised by the complainant through this complaint we take a negative stand against the complaint. These Issues are therefore found accordingly.
9. Issue No. iv. Having found issue numbers 1 to 3 as above we find that the complainant is liable to be allowed in part.
Accordingly we allow the complaint to the extent that the 2nd opposite party shall pay back the amount of Rs. 1,500/- collected from the complainant for attending breakdown works during June 2012 and to pay costs of the proceedings to the complainant which we estimated at Rs. 8,500/-.
The amount to be refunded shall carry interest at the rate of 12% p.a. from the date of filing the complaint till realization. Costs awarded will not carry any interest.
The above said order shall be complied with, within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the19th day of May 2015.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Ext. A1 : Copy of letter dt. 16-04-2012
A2 : Copy of letter
A3 : Letter dt. 27-07-2011
A4 : Log book
A5 series : Vouchers
A6 : Voucher
A7 : Log books
A8 : Statement
A9 : Labour bill
A10 series : Labour bills
A11 : List of student
A12series : vouchers
Opposite party’s Exhibits:
Ext. B1 : Copy of satisfaction certificate
B2 : Copy of authority letter
B3 : Copy of commercial invoice
B4 : Copy of terms and conditions of
warranty policy
B5 : Copy of repair order dt. 09-07-2011
B6 : Copy of repair order dt. 15-07-2011
B7 : Copy of repair order dt. 27-07-2011
B8 : Copy of repair order dt 03-09-2011
B9 : “ “ dt. 15-10-2011
B10 : “ “ dt. 22-10-2011
B11 : “ “ dt. 26-11-2011
B12 : “ “ dt. 14-01-2011
B13 : “ “ dt. 03-03-2011
B14 : “ “ dt. 10-03-2011
B15 : “ “ dt-10-04-2012
B16 : “ “ dt. 30-06-2012
B17 : “ “ dated 21-07-2012
B18 : Letter dt. 08-07-2014
B19 : Copy of certificate dt. 24-07-2014
Depositions:
PW1 : Fr. George Palatty
DW1 : K. Sambamoorthi
DW2 : Suresh S
DW3 : Abdul Karim K.K.
