DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 24^th  day of March 2012

Present  : Smt.Seena H, President

             : Smt. Preetha.G. Nair, Member       

             : Smt. Bhanumathi.A.K, Member             Date of filing:  13/07/2010 

                                                (C.C.No.90/2010)                               

A.B.Vinod,

S/o.Bhaskaran,

Alparaveedu, Thavalam,

Agali, Mannarkkad Taluk,

Palakkad                                              -         Complainant

(By Adv.Aravindakshan &

 Adv.C.K.Ummusalma)                                            

V/s

1. M/s.PSN Automobiles,

    Rep.by the Branch Manager,

    Kunnathurmedu, Palakkad 

(By Adv.V.Krishna Menon)

2.M/s.B.V.P. Auto Garage,

    Rep.by the Branch Manager,

    Kuttipuram,

    Malappuram District                        -        Opposite parties   

(By Adv.K.Dhananjayan &

 Adv.V.Krishna Menon)    

O R D E R

            By  Smt.PREETHA G NAIR, MEMBER

Complainant purchased a M.G.V. Tipper goods carrier (Reg.No.KL-50-8449 Engine No.E483CD9E207306, Chassis No.NC232CRCO9E183027) from 1^st  opposite party on 29/6/2009 after paying the full price, for his lively hood. The vehicle was taken to the 2^nd opposite party on 4/9/2009 for routine servicing. The vehicle was regularly maintained and serviced as per the directions of 1^st opposite party. On 5/12/09 while the vehicle was running without any load, the complainant heard an abnormal sound from the back of the vehicle. As per  the directions of 1^st opposite party  the vehicle was taken to the 2^nd opposite party. At the servicing centre of the 2^nd opposite party the vehicle was examined and the complainant was told that the disc case of the vehicle was broken and it would taken two days to get the vehicle repaired. After two days i.e. on 7/12/09 when the complainant contacted 2^nd opposite party he was told that the axle of the vehicle was also broken and the spare parts to be replaced would cost Rs.10,000/-. The complainant refused to pay the amount as all the spare parts of the vehicle are covered under warranty. The complainant contacted 1^st opposite party and informed about the unlawful demand made by the 2^nd opposite party. However the complainant’s request was declined by the 1^st opposite party. On the next day the complainant received a letter from the 1^st opposite party stating that the defect was mainly due to abuse or overloading  of the vehicle and therefore the defect was not covered under warranty. The complainant has never abused or overloaded the vehicle. He had been  using it with utmost care as it is the only means of lively hood. The complainant made several negotiations with the 1^st opposite party in person, all was in vain. On 10/12/09 the complainant made a written request to the  1^st opposite party to redress his grievance for which there was no response. On 12/12/09 the complainant sent lawyer notices to the opposite parties for which there was no immediate reply. Since the vehicle was the only means of living of the complainant, he was not in a position to wait for long and therefore at last he offered to bear the cost of repair. As per the instruction of 1^st opposite party the complainant paid Rs.915/- to the 2^nd opposite party and also paid Rs.2950/- to EVK Automobiles from which the 2^nd opposite party bought  the axle for replacement. The actual cost was only Rs.3868/- and the opposite parties unnecessarily demanded Rs.10,000/-. Subsequently the 1^st opposite party sent a reply notice dated 5/1/10 stating false contentions. The act of opposite parties amounts to deficiency in service, unfair trade practice and negligence on their part. Under the warranty the complainant was entitled to get the defect cured free of cost. The complainant was earning at the rate of Rs.4,000/- per day by  use of the vehicle. Out of which he had to pay tax, insurance and finance arrears. The opposite parties delayed the repairing for 15 days. The warranty period prescribed is 36 months for engine and gear box and 12 months for other parts of the vehicle. Hence the complainant prays an order directing the opposite parties to pay an amount of Rs.88,868/- with interest as the cost of repair and compensation  for mental agony along with loss incurred and cost of the proceedings.

Opposite parties filed version stating the following contentions. The opposite parties stated that the complainant is not a consumer as defined under Sec 2(1)(d) of the Consumer Protection Act. The vehicle purchased by the complainant from the 1^st opposite party was for his livelihood and that he was regularly maintaining and servicing the vehicle as per the directions of them are not admitted and the complainant is put to strict proof of the same. On 5/12/09 when the complainant had taken his vehicle to the workshop of the 2^nd opposite party it was noticed that the axle of the vehicle had broken owing to the rash and negligent driving of the vehicle by the complainant and further that the diff case had also got a minor damage. The complainant had been informed by the 2^nd opposite party that the replacement of the axle which had broken owing to the rash and negligent driving of the vehicle could not be done under warranty as it was excluded from the same and that if he so desired he would have to meet the expenses for the replacement.  Then the complainant contacted 1^st opposite party to repair under warranty. As per the conditions of warranty it would not be possible to accede to his request for carrying  out the repairs under warranty. The complainant  having thereupon agreed to carry out the repairs on payment basis and the 2^nd opposite party had carried out the necessary repairs.

There is no basis in the claim of the complainant that as per the warranty he was entitled  to get the defects cured free of cost. In the event of violation of any of the express conditions of warranty a party is not entitled to claim the benefits of the warranty. The axle of the vehicle had broken owing to the rash and negligent driving of the vehicle by the complainant. In such circumstances  since rash and negligent use of the vehicle is expressly excluded  from the purview of warranty, the complainant is not entitled either in law or on facts to claim the benefits of warranty. The statement of the complainant that he was earning Rs.4,000/- per day by use of the vehicle is not admitted and the complainant is put to strict proof of the same. The 1^st opposite party stated that the delay if any, caused for carrying  out the repairs was the complainant’s  own making in so far as he had not consented to carry out the repairs on payment basis and was trying to have the repairs carried out under warranty for which he was not entitled as per the terms and conditions of the warranty. The complainant is not entitled either in law or on facts to seek refund of any of the amounts as claimed by him. Hence the 1^st opposite party prayed that dismiss the complaint with cost.

The 2^nd opposite party stated that on  5/12/09 when the complainant had brought his vehicle to the workshop of them, it was noticed that the axle of vehicle  had broken owing to the rash and negligent driving of the vehicle by the complainant  and further that diff case had also got damaged. As per the warranty conditions the 2^nd opposite party not repaired the damaged parts of the vehicle. Thereafter  the complainant agreed to carry out the repairs on payment basis. The 2^nd opposite party  had carried out the necessary repairs and thereupon the complainant had taken delivery of the vehicle after expressing  satisfaction over the work done and paying the amounts towards the repair charges.

The 2^nd opposite party stated that the benefits of warranty are subject to the conditions prescribed therein. In the event of violation of any of the express conditions of warranty a party is not entitled to claim the benefits of the warranty. The further statement of the complainant that the complaint petition is filed within the period prescribed under section 24 A of the Act is not admitted by the opposite party. Hence  the 2^nd opposite party  prayed that dismiss the complaint with cost.

Complainant and opposite parties filed affidavit and documents. Ext.A1 to A8 marked on the side of the complainant. The evidence adduced on the side of the opposite parties are Ext.B1 to B7 and the oral testimony of opposite parties 1 and 2. Two witnesses  examined as PW1 and PW2 on the side of the complainant. Both parties filed argument notes.

Issues for consideration are

1. Whether complainant is a consumer under the Consumer Protection Act ?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the cost and relief ?

Issue No.1

The opposite parties stated that the complainant cannot be treated as a consumer as defined under section 2(1)(d) of the Consumer Protection Act. The opposite party’s counsel argued that the complainant has not produced any material to prove the fact that the tipper lorry was the only source of his livelihood and that he intended to operate the same by himself for ekeing  out his livelihood. Admittedly the complainant had purchased the Goods carrier bearing Reg.No.KL-50-8449 from the 1^st opposite party. The complainant  stated that he purchased the vehicle to earn his livelihood and that he has no other source of livelihood. The complainant was not cross examined by opposite  parties. No contradictory evidence was produced by the opposite parties.

The first opposite party filed additional affidavit and Ext.B4 to B6 marked. Ext.B4 is the letter sent by the complainant stating that Sn hml\¯ns\ B{ibn¨v Ignbp¶ Fsâ sXmgnemfnIÄ¡pw, AhcpsS IpSpw_¯n\pw henb {]bmk§fpw, _p²nap«pIfpw t\cntS­nh¶n«p­v.  The opposite parties stated that in Ext.B4 complainant stated that he was unable to carry on his business effectively and pay the salary etc. to his workers. The counsel  of the complainant argued that according to the  complainant labourers means loading and unloading workers belonging  to the trade union and in the letter the word Fsâ crept in due  to clerical mistake committed by the typist who typed the letter. The opposite parties have not produced  evidence to prove that complainant paid salary.

Ext.B5 is the registration details of another MGV Tipper Goods carrier bearing  registration number KL-10-W-3437. The opposite parties stated that the complainant owns the said vehicle in addition to the vehicle No.KL-50-8449. As far as the vehicle KL-10-W-3437 is concerned the complainant filed additional affidavit stated that he has sold the vehicle to PW1 on 14/3/09 as per Ext.A7 agreement. However  the R.C. has not been changed to the name of PW1 because the loan arrears due to Sri Ram Finance was not cleared . At the time of examination  PW1 has deposed that he had purchased the vehicle on paying Rs.2,05,000/- in cash and on promising to pay the balance towards the loan. No contradictory evidence produced by the opposite parties. The opposite parties stated that the agreement was executed not in the stamp paper. PW1 deposed that they went to Agali for purchasing stamp paper and could not get it. According to the complainant Ext.A7 was executed on 14/3/09 which was a 2^nd  Saturday, stamp  paper was not available. The opposite parties produced Ext.B6 shows the photos of vehicle No.KL-50-8449, KL-10-W-3437 and one earth remover stated that the name Vijeesha and phone numbers of the complainant are mentioned in the vehicles. PW1 deposed that KL-10-W-3437 purchased by him from the complainant. PW2 deposed that he is the owner of earth remover and copy of RC marked as Ext.A8.  

Further PW2 deposed that the number of the earth remover was not seen in Ext.B6 and he could not identified his vehicle. Also he stated that his vehicle was parked in front of the pumb. The opposite parties have not produced evidence to show that the complainant has used the three vehicles shown in Ext.B6 for commercial purpose.

The Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission Raipur II (2011) CPJ 89 in Amit Jaiswal V.Dealers Star Automobile and Ors. held that  if there is allegation that the vehicle was not repaired within warranty period, then such cases come in the category of consumer dispute and can very well be entertained by Consumer Forum.  In the present case also the vehicle was not repaired free of cost within the warranty period. So this case also come in the category of consumer disputes. Hence the complainant is a consumer under the Consumer Protection Act. So the 1^st issue answered in favour of the complainant. 

Issues 2 & 3

Heard both parties and perused the relevant documents. Admittedly the complainant had taken the vehicle to 2^nd opposite party for repairing, on 5/12/09 within the warranty period. According to the complainant at first, 2^nd opposite party stated that disc case of the vehicle was broken and it would take two days to get the vehicle repaired. After two days when the complainant contacted 2^nd opposite party told that the axle of the vehicle was also broken and the spare parts to be replaced would cost Rs.10,000/- After filing the version the opposite parties filed I.A.17/11 to direct the complainant to produce the damaged axle. In the absence of any evidence as to the fact that the damaged axle after replacement is handed over to the complainant, the I.A.dismissed. At the time of cross examination DW1 deposed that the vehicle was in running condition when it was brought to them. Further DW1 deposed that Agn¨v t\m¡nbt¸mÄ axle s]m«nbXmbn I­p. HmSm³ ]Ám¯ hn[¯nembncp¶p axle s]m«nbXv. This is quiet contradictory to his earlier version . The complainant argued that if the axle was really broken then the vehicle could not be driven by the complainant to 2^nd opposite party’s premises. The opposite parties not produced evidence to show that the axle was broken due to mistake of driver. At the time of cross examination DW2 deposed that he has not direct knowledge about the facts of the case.

Ext.A4 and A5 clearly shows that the complainant paid Rs.3868/- to cure the damages of the vehicle. The complainant stated that the replaced spare parts were not delivered to him. No contradictory evidence produced by the opposite parties. According to the opposite parties the axle broken only on account of the rash and negligent driving of the vehicle by the driver. But the opposite parties have not produced evidence to prove that the axle  broken only on account of the driving of the vehicle. Moreover the complainant has not cross examined by the opposite parties. The opposite parties have not produced evidence to show that the damaged axle had returned to the complainant. On the available evidence we find that the parts of the vehicle damaged within the warranty period. The opposite parties failed to cure the defects of the vehicle free of cost. It is a fit case for awarding compensation for deficiency in service.

In view of the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result complaint allowed.

          We direct both opposite parties jointly and severally liable to pay the complainant an amount of Rs.3868/- (Rupees Three thousand eight hundred and sixty eight only) as the cost of the repair and  pay Rs.20,000/- (Rupees Twenty thousand only) as compensation for mental agony and pay Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum  for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 24^th  day of March  2012.

             Sd/-

Seena.H

President

     Sd/-

Preetha G Nair

Member

      Sd/-

Bhanumathi A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Warranty rejection letter issued by 1st opposite party to the

              complainant dated 8/12/09 

Ext.A2 –  Written request given by the complainant to the PSS Automobiles,

              Kochin  dated 10/12/09

Ext.A3 –  Photocopy of Lawyer notice sent by Adv.Aravindakshan to the

             opposite parites dtd.12/12/09 with acknowledgment cards

Ext.A4 –  Cash bill issued by E.K.Automobiles to the complainant dated

             16/12/09

Ext.A5 – Invoice issued by 2^nd opposite party to the complainant dated

            15/12/09

Ext.A6 – Reply to Advocate notice dated 5/1/10

Ext.A7 –Sale agreement between the complainant and Mr.C.P.Rajan

Ext.A8 – Photocopy of Registration Certificate issued in the name of Venugopal

            issued by Asst.Registering Authority, Coimbatore

Witness examined on the side of the complainant

PW1 – Rajan.C.P.

PW2 – R.Venugopal

Exhibits marked on the side of the opposite parties

Ext.B1 – Photocopy of relevent pages of the operators manual containing the

            conditions of warranty with repsect to the vehicle purchased by the

            complainant

Ext.B2 – Photocopy of relevent pages of the operators manual containing the

            conditions of warranty with repsect to the vehicle purchasedby the

            complainant

Ext.B3 – Photocopy of relevent pages of the operators manual containing the

             conditions of warranty with repsect to the vehicle purchasedby the

             complainant

Ext.B4 – Photocopy of letter dated 9/6/11 sent by the complainant to the 1st

             opposite party

Ext.B5 – Copy of the registration details of the vehicles owned by the

             complainant

Ext.B6 – Photograps of the two vehicles and the JD 315V machine owned by the

             complainant.

Ext.B7- Letter dated  9/6/11 as received from the complainant (original)

Witness examined on the side of the opposite parties

DW1 – Benny Varghese

DW2 – Saji.M.V.

Cost Allowed

Rs.2,000/- allowed as cost of the proceedings.