IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

DATED THIS THE 14^TH  DAY OF FEBRUARY 2018

Present: -    Sri. E.M.Muhammed Ibrahim,B.A, LL.M. President

        Sri. M.Praveen Kumar, Bsc, LL.B, Member

       CC.No. 297/2009

Lajkumar                                                    :         Complainant

S/o Sahadevan

Mangalathu Puthen Veedu

Choranadu

Vadamon P.O

Anchal.

[By Adv.A.Electron]

V/S

1.          M/s Tata Motors Ltd                    :         Opposite  Parties

                   Mumbai

                  [By Adv. M/s.Menon&Menon]

2.        The Proprietor

                  Popular Mega Motors(India)Ltd.

NH 47, Bye pass Road

Thattamala P.O, Kollam

[By Adv.R.Sreeraj]

3.         Tata Motors Finance Ltd.           

Tata Motors Building,                          

                  2^nd Floor,Operation Department

Teen hall Naka

Gyan Sadana College services Road

                   Thane-400604

4.        Tata Motors Finance Ltd.

Lathika Arcade

Ottukuzhy Road

Vanross Junction

                   Trivandrum

[By Adv.K.N.Ajith Kumar]

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ORDER

 E.M.MUHAMMED IBRAHIM , B.A, LLM,President

This case is based on a complaint filed by Lajkumar against the above four opposite parties seeking to replace 2007 Model Tata Diesel MGV Tipper lorry with a  defect free, brand new tipper one of the same capacity and to write off Rs.1,77,200/- being the amount for instalments and also seeking compensation to the tune of Rs.50,000/- and cost of the proceedings. 

The averments in the complaint in short are as follows.

          The first opposite party is the manufacturer of Tata vehicles.  On 10.01.2008 the complainant purchased a 2007 Model Tata Diesel MGV Tipper Lorry from the 2^nd opposite party.  At the time of purchase, the complainant paid an amount of Rs.1,40,000/- as advance towards sale consideration.  For the balance sale consideration the 3^rd and 4^th opposite parties given financial assistance to the complainant which was agreed to be repaid in equal monthly instalments.  The vehicle was registered and assigned the number KL 25/9082.  Before affecting purchase the 2^nd opposite party made the complainant to believe that the vehicle is free of mechanical defects, having excellent performance with very great mileage of 5 Km/litre and there is a warranty for a period of 3 years or for a distance of 30000 Kilo meters whichever comes first.  Three free services were offered by the 2^nd opposite party.  

The complainant for the purpose of earning his livelihood, is engaged in manufacturing hollow bricks and supply the building materials to the parties.  Raw materials like sand, cement, metal chips, crusher dust etc. need to be brought to the worksite of the complainant.  The hollow bricks  manufactured by the complainant has to be transported and unloaded at different sites of the contractors and  customers.  Any failure regarding the supply of hollow  bricks

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agreed will lead to disputes with them and will cause heavy loss to the complainant.  Even at the inception of using the vehicle manufactured by the first opposite party, the vehicle was suffering from severe mechanical defects and the trip of the vehicle was broken down many times and the complainant was not able to conduct his work and he had to hire other vehicles for serving the purpose.  The trip of the vehicle was broken down in the public road with materials loaded on it.

 The complainant had entrusted the vehicle for repairs to the second opposite party many times.  Many of such works were on-site repair works, which itself is self explanatory of the manufacturing defects of the vehicle manufactured by the 1^st opposite party.  The service history chart produced along with this complaint speaks out the actual manufacturing defect and poor performance of the vehicle.  On 9/02/2008 when the vehicle covered just 26,223 kilometers, there was complaint of air leak, on 9.5.2008, rear break relining was done, on 17.7.2008 and 31.07.2008, there were complaints of steering noise.  On 16.08.2008, alternation MTG Brake changed.  On 6.09.2008, spring leaf changed.  On 01.10.2008, Bevel gear housing was replaced.  The rear axle shaft was broken on 3.1.2009.  Gear Box was overhauled on 9.2.2009.  On 18.06.2008, rear axle shaft changed.  Tyres were replace on 21.05.2008, 03.06.2008 and 19.06.2008.  Complaint on front brake liner occurred on 08.05.2009, the rear axle shaft was broken on 3.6.2009.  There after also the complainant was suffering much with the vehicle . The vehicle was kept idle for many days together and the complainant was constrained to hire out other vehicles by giving heavy rent for meeting his needs.  The complainant was seeking out his livelihood from the income derived from the business.  Due to the breakdown of the vehicle, the complainant was unable to pay the instalments.

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          Due to the manufacturing defect of the vehicle, the complainant cannot do his business by using the above tipper lorry.  The complainant had to spend around Rs.50,000/- from his own pocket for repair of the vehicle.  The vehicle is still under warranty period.  The opposite parties are liable to replace the vehicle  with a new tipper lorry having the same configurations as that of the old one.  On enquiry by the complainant, it was reliably learnt that the entire tipper lorries of the same batch suffers manufacturing defects. 

The mental agony and sufferings of the complainant cannot be equated in terms of money, but for legal purposes, it is fixed to the tune of Rs.50,000/- .  The 3^rd and 4^th opposite parties are liable to write off the 8 repayments of Rs.1,77,200/- since the vehicle cannot be used due to manufacturing defects.  The complainant had caused to send an advocate notice to all the opposite parties by registered post, even though notices were received, no opposite party came forward to settle the matter and hence this complaint.

          The opposite parties No.1&2 resisted the complaint by filing separate written versions.  However opposite party No.3&4 remain exparte.  Both opposite party No.1&2 would content that the complaint is not maintainable either in law or on facts.  According to them the complainant is not a consumer as defined under section 2 (d) of the Consumer protection Act 1986.    The vehicle purchased by the complainant is a commercial vehicle and the same was being used for commercial purpose alone.  The complainant is not a consumer.  Hence the complainant is liable to be dismissed at the threshold itself.  The complainant has appeared before court with unclean hands with vague baseless and motivated allegations.

 However the 1^st and 2^nd opposite parties would admit that the complainant has purchased a tipper lorry from the 2^nd  opposite party.  But according to them tipper lorry is purchased by the complainant of the  highest quality and the complainant has taken delivery of the same after being  satisfied

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with the condition of the lorry and its performance.  The said vehicle was delivered after carrying out Pre Delivery Inspection(PDI) of the vehicle.  The tipper lorry manufactured by the 1^st opposite party is of high quality and there is no manufacturing defect, deficiency in service, gross negligence or unfair trade practice on the part of the 1^st opposite party.  The vehicle was attended by 1^st opposite party’s dealers, service points and fully complied with the terms in the warrantee assurance and specifications regarding the quality and performance of the vehicle.

According to the opposite parties defects of the vehicle were used induced .  It was due to over loading.  The vehicle does not suffering from  any manufacturing defect.  The manufacturer cannot be ordered to replace the vehicle or refund its price, defects alleged appears to be only minor defects which can be rectified or defective part can be replaced under warranty.  Hence the prayer for replacement with new tipper lorry and payment of compensation is not sustainable.  All the complaints made by the complainant were attended by the 2^nd opposite party and taken all steps to repair the vehicle with utmost care and caution.  The opposite parties No.1&2 have not caused any loss to the complainant.  The attempt of the complainant is to get rid of the financial liability which he is having towards 3^rd and 4^th opposite parties.  It is further contended that the complainant is not having any cause of action against the 2^nd opposite party who is only a dealer of the vehicle manufactured by the 1^st opposite party.  The complainant is not entitled to get any of the relief sought for in the complaint. Opposite party No.1&2 further pray to dismiss the complaint with their costs and compensatory costs.

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In the light of the above pleading the following points arise for consideration. 

1. Is not the complaint maintainable?
2. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party No.1 to 4 alleged?
3. Whether the complainant is entitled to get the vehicle replaced with a defect free brand new Tipper Lorry of the same capacity as claimed?
4. Whether the complainant is entitled to get an order directing opposite parties to write off  Rs.1,77,200/-  being the amount of  8 loan installments defaulted by the complainant?
5. Whether the complainant is entitled to get compensation, if so what would be the quantum of compensation to be awarded?
6. Reliefs and costs.

Evidence on the side of the complainants consists of oral evidence of PW1 to PW3 and got marked  Ext.P1 to P7 and Ext.C1 series documents.  The 2^nd opposite party has examined its Branch Manger Sri.Binoy.B as DW1 and got marked Ext.D1 and D2 documents through PW1.  The other opposite parties remain exparte. 

Complainant and opposite party No.1&2 have filed notes of argument.  Heard the complainant’s counsel as well as the counsel appearing for opposite party No. 1&2 and perused the records.

Point No.1

          The specific contention of the opposite party No.1&2 is that the complainant would not come within the purview of the consumer as defined under Sec.2(1)(d) of the Consumer Protection Act 1986 and therefore the complaint is not maintainable.  According to opposite party No.2 the vehicle purchased   by  the  complainant from the 2^nd  opposite party  is  a  commercial

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vehicle and the complainant was using the vehicle for commercial purpose alone and therefore he is not a consumer under Sec.2(1)(d) of the Act.  But the averments in the proof affidavit filed by PW1 coupled with averments in Paragraph 5 would clearly indicate that the complainant for the purpose of earning his livelihood is engaged in manufacturing hollow bricks and supply of hollow bricks and other building materials to the parties contacted him and for that purpose he purchased the vehicle.  The complainant who has been examined as PW1 has sworn that he has been using the vehicle to run his hollow brick unit from which he earns his livelihood.  According to PW1 the raw materials like sand, cement, metal chips, crusher dust etc. need to be brought to the work site of the complainant.  The manufactured hollow bricks are to be transported and unloaded at the construction site within the agreed time for which he requires vehicle and for that purpose he purchased the vehicle.

          In view of the above pleadings and evidence available on record we are of the view that the complainant has purchased the vehicle exclusively for the purpose of earning his livelihood by means of self employment. Hence the complainant would come within the purview of explanation attached to Sec.2(1)(d) of the Consumer Protection Act.  Therefore we have no hesitation to hold that the complainant is a consumer and the complaint is maintainable.  The point answered accordingly.

Point No.2&3

          For avoiding repetition of discussion of materials these 2 points are considered together.  The specific case of the complainant is that 2007 Model Tata Diesel MGV Tipper Lorry purchased from the 2^nd opposite party is suffering from manufacturing defects and therefore the complainant  is  entitled

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to get replaced the vehicle  by a brand new one of the same capacity.  The opposite party 1&2 would deny the above case of the complainant and would content that the vehicle was not having any manufacturing defect.  Most of the complaint mentioned by the complainant are minor in nature and occurred due to wear and tear or by rough and excessive usage of the vehicle.  It is further contended that the complaint relating to gear box and axle shaft were due to over loading of the vehicle.  Therefore either the manufacturer or the dealer cannot be found faulted for the said defect.  According to the opposite party No.1&2 each vehicle has been designed to carry weight up to a particular level and loading the vehicle  with more than the said weight would lead to these types of complaints. That spring leaves were added which is done for carrying overload which is  against manufacturers recommendations and in spite of the above facts the 2^nd opposite party has carried out all repairs in a most effective manner during the warranty period without collecting any charge for the same. 

Complainant in paragraph 6 of the proof affidavit filed in lieu of chief examination has sworn that the vehicle manufactured by the 1^st opposite party and purchased from the 2^nd opposite party was suffering from severe mechanical defects and while conducting trip by carrying materials  the journey was broken down at public road many times and the complainant could not be able to conduct his business and he had to hire other vehicle for serving the purpose.  That the complainant entrusted the vehicle for repairs to the 2^nd opposite party many times.  Many of such works were carried on at the site were the vehicle broken down which itself is self explanatory that the vehicle is having manufacturing defect.  According to PW1 the service history which is proved as Ext.P1 chart would speak the actual manufacturing defect and poor performance of the vehicle.  It is also brought out in evidence through PW1 that as the vehicle was kept idle for many days together due to and he was constrained to hire out other vehicles by paying heavy rent  for  meeting  his  needs.   PW1 has

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also intimated these facts to opposite party No.1&2 by sending Ext.P2 lawyer notice.  According to PW1 he was eaking out his livelihood from the income derived from the business and due to the breakdown of the vehicle, he was suffering much and would not be able to pay loan instalments.  Though PW1 was subjected to severe cross examination nothing materials has been brought out in evidence to disbelieve the above version of PW1.

  However   it is brought out during cross examination he is having hollow bricks manufacturing unit that he has purchased the vehicle for transporting hollow bricks and materials required for manufacturing hollow bricks.  He has purchased a fully built up vehicle and not a chase alone from the 2^nd opposite party in a running condition that the 2^nd opposite party has build the body of the vehicle. That opposite party No.1&2  had approached the complainant and promised that they would replace the damaged or defective parts of the vehicle that he has purchased another 2 vehicles shown in Ext.D1 &D2 documents after the vehicle purchased from the 1^st and 2^nd opposite party has become defective.

          The oral evidence of PW2 Madhusoodanan would support the case of the complainant.  According to PW2 he is the owner of very same type Tata Tipper Lorry and Ext.P7 is the copy of the RC Book of his vehicle. The oral evidence of PW2 would show that from the date of purchase of the vehicle its differential axle was in complaint and as there was warranty for 3 years he manage to drive the vehicle by getting it repaired by availing the benefit of warranty.  But after 3 years he could not manage  the repairs.  He has specifically stated that the vehicle from the same batch are also having complaint and now the vehicle has been modified by the company.  The above evidence of PW2 remains unchallenged.

  The evidence of PW1 and PW2 stands corroborated by the oral evidence of Ext,PW3  Expert  Commission  coupled  with  Ext.C1  report  filed  by him.

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According to PW3 on verification it was revealed that there was manufacturing defect for the vehicle that differential clutch, gear box etc were defective.  The number of spring leaves were enhanced.  According to him the number of the spring leaves have been increased by the 2^nd opposite party while building the vehicle that in order to  make the vehicle a road worthy an amount of Rs.1,50,000/- to Rs.2,00,000/- is necessary.  In page no.4 the commissioner has noted that the vehicle was having problem relating to rear axle housing, drive shaft failure, suspension, steering, premature tyre wear etc. and there was delay in obtaining spare parts which resulted in delay in breakdown repair works.  The complainant said that he had to wait for many days (even up to 2 weeks) for getting the spare parts.  The Expert Commissioner has reported in paragraph no.2.5 that the manufacturer had supplied only the chassis and the tipper body was built locally by the dealer (opposite party no.2) through another agency.  However the body built vehicle was sold to the customer by the dealer.  The expert has also deposed the above facts when he was in the witness box as PW3.  The opposite party 2 has no dispute regarding the fact that body of the vehicle was built by another agency as directed by the dealer and the body built vehicle was sold to the complainant in a running condition.  It is clear from Ext.C1 report that body built vehicle was sold to the customer by the dealer.

  It is also clear from the oral evidence of PW3 and Ext.C1 report that the dimension of the body was reduced to 153 cft from 176.6 cft at the time of inspection.  Substantial reduction of body dimension is to reduce the load and not to increase the same.

 It is true that the complainant has got increased number of spring leaves from 9 to 15.  But according to the complainant it was at the advice of the 2^nd opposite party .  The expert commissioner has reported in Paragraph 2.6 that the authorised service centre advised the complainant to increase the number of front suspension leaves to increase the clearance in the wheel arch to

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allow better air flow and tyre cooling since there was inadequate tyre clearance.  It is also noted by the expert that some modification on the front wheel arch also.  The rear suspension springs were also found increased by 6 leaves.  The expert commissioner has further reported that he has contacted the owners of similar vehicle to get the feedback.  All the four owners met him told that they are also facing similar problems and defects faced  by the complainant here in.  According to expert commissioner axle shaft failure, differential failure, suspension problems are the main issues suffered by other owners of same model vehicle.  It is further reported by the expert commissioner in his conclusion Paragraph 3.1 that the manufacturer did not specified any particular dimension for the body, but mentioned as 5 cubic meter (176 cft).  The body built for the vehicle was heavier than specified volume and that could have been lead to the over loading of the vehicle unnoticeable.   It is clear from the available evidence that the body of the vehicle was built at the instance of opposite party 2 and not according to the whims and facies of the complainant.

          The oral evidence of PW1 coupled with Ext.C1 report would make it clear that the 2^nd opposite party has sold the lorry after building its body according to their owner specification and the vehicle was built against the specification of the dimension fixed by the manufacturer.  Opposite party 2 has no case that the body was built according to the specification of the complainant, so as to carry more load.  Therefore  the condition of the opposite party that the damages and defects found on the vehicle was due to carrying overload and therefore the opposite party no.1&2 are not liable is devoid of any merit especially when it brought out in evidence that there are manufacturing defect in the vehicle and that the 2^nd opposite party got built up the body of the vehicle against the specification of the manufacturer and sold the same to the complainant by convincing the complainant that the performance of the vehicle would be best.  It is also clear from  the  available  materials  that  the  similar

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vehicle purchased by 4 customers contacted by the expert commissioner also facing similar problems and the 1^st opposite party stopped the production of this type of vehicle (BSII) and changed the vehicle to BSIII by upgrading the capacity of engine. The expert commissioner has further stated in the report that the owners of the old model (BSII) vehicle are still suffering from frequent break down of the vehicle and that the delay in sourcing the spare parts of old model vehicle has added further difficulties to the customer.  The expert commissioner has further suggested in paragraph 3.3 that a permanent solution to the recurring problem of this vehicle, the driveline components like clutch, gearbox, propeller shaft and the rear axle housing need replacement.    When the expert commissioner was in the box as PW3 he has deposed that an amount of Rs.1,50,000/- to 2,00000/- is necessary for making the vehicle road worthy.

          The branch manager of the 2^nd opposite party has been examined as DW1.  It is true that he has sworn in the proof affidavit in terms of his written version,but during cross examination he would admit that he has verified the Ext.P1 service records that axle breakage is a major defect and as per P1 service records the vehicle suffered axle breakage on 4 dimensions.  Now the 1^st opposite party company has not been manufacturing this type of vehicle.  In view of the evidence discussed above it is clear that the vehicle is having major manufacturing defects and it was got repaired on severe occasion by DW1 at the workshop specified by the 2^nd opposite party.  It is also brought out in evidence that all the other 4 customers and the complainant who are the owners of this type of vehicle are not satisfied as there are major manufacturing defects for their vehicle and the company has also stopped production of the same type of vehicle and they changed to BSIII vehicle by upgrading the capacity of the engine.  It is also clear from the oral evidence of PW1 to PW3  coupled with C1 Expert Report that body of the vehicle was build at the work shop by the 2^nd opposite party by  increasing   the   capacity  of  the  vehicle   specified  by   the

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manufacturer.  In the circumstances there is unfair trade practice and deficiency in service on the part of the 1^st and 2nd opposite parties and hence they are liable to make amend the loss caused  the complainant  on account of the supply of defective vehicle to the complainant.  It is brought out in evidence that the production of this type of vehicle has been stopped by the 1^st opposite party. Furthermore now several years has been elapsed from the date of purchase of the disputed vehicle which was during the year 2008.  The complainant has used the vehicle at least for 2-3 years by getting it repaired.  The expert commissioner has reported during the year 2014 that an amount between 1.5 lakhs and 2 lakhs is sufficient to make the vehicle road worthy.  In the circumstances the complainant is not entitled to get it replaced by a brand new Tipper lorry of the same capacity as claimed in the complaint.  The expert commissioner has reported this fact during the year 2014.  Now 3 and odd years have already been elapsed by the time the cost of making the vehicle road worthy might have been doubled.  Therefore the complainant is entitled to get Rs. 3 Lakhs for making the 2007 Model Tata Diesel MGV Tipper lorry road worthy.  In view of the materials discussed above we are of the view that Rs.3,00,000/-  will be reasonable and sufficient to make the vehicle road worthy in lieu of getting it replaced by a new vehicle of the same type.

          It is the further case of the complainant that due to the breakdown of the vehicle he could not carry on his day today business and he has obtained another vehicles for hire and to pay higher charges for those vehicles.  Ext.D1 & D2 documents indicate that subsequently he had purchased 2 other vehicles for using the same in his business to earn his livelihood and he has also defaulted the payment of 8 instalments because of the breakdown of the  defective vehicle sold by 1^st & 2^nd opposite party.  Therefore we are of the view that the complainant is entitled to get compensation to the tune of Rs.2 lakhs due to the loss suffered by him.  The point answered accordingly.

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 In the result complaint stands allowed in part in the following terms.

 Opposite party No.1&2 are directed to pay Rs.3 lakhs with interest at the rate 9% per annum from the date of order till realisation to the complainant, being the expenses for making the defective 2007 Model Tata Diesel MGV Tipper lorry road worthy.

That the opposite party No.1&2 are further directed to pay Rs.2 lakhs with interest at the rate 9% per annum from the date of order till realisation.  The opposite party No.1&2 also directed to pay Rs.5000/- as cost of proceedings to the complaint.

  The prayer of the complainant to replace the vehicle with a defect free brand new tipper lorry of the same capacity stands disallowed as cost of making the vehicle road worthy has been allowed.

The relief sought against opposite party No.3&4 to write off the loan amount stands disallowed but they are restrained from realising any penal interest for the defaulted amount of 8 instalments.  They are also restrained from proceeding against the complainant for realisation of the  defaulted 8 instalments due from complainant and its interest till the payment of Rs.5,00,000/- with interest by opposite party No.1&2.

          The opposite party no.1&2 are directed to deposit the amount of Rs.5 lakhs with interest equally as ordered above within 45 days from today failing which the complainant is entitled to realise the above amount with interest @12% per annum from the date of order till realisation from opposite party 1&2 jointly and severally and from their assets.  The complainant is also entitled to realise the costs from opposite party 1 &2 jointly and severally and from their assets.

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Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 14^th day of  February 2018.   

E.M.Muhammed Ibrahim:Sd/-

 M.Praveen Kumar:Sd/-

  Forwarded/by Order

  Senior Superintendent

INDEX

Witnesses Examined for the Complainant

Ext. PW1             :         Lajkumar

Ext.PW2              :         Madhusoodanan

Ext.PW3              :         Sabu.V.R

Documents marked for the  complainant

Ext.P1                  :         Copy of Service History of the vehicle

Ext.P2                  :         Copy of  Advocate notice dated 29.06.09

Ext.P3                  :         Copy of Acknowledgement Card(2 Nos.)

Ext.P4                  :         Copy of Postal Receipt (4 Nos.)

Ext.P5                  :         Copy of Driving Licence

Ext.P6                  :         Copy of  RC book

Ext.P7                  :         Copy of  RC book

Ext.C1                  :         Commission Report

Witness examined for the opposite parties

Ext.DW1              :         Binoy.B

Documents marked for the  opposite parties

Ext.D1                 :         Copy of Registration Details

Ext.D2                 :         Copy of Registration Details

E.M.Muhammed Ibrahim:Sd/-

                                                                                    President

            M.Praveen Kumar:Sd/-

          Member

                                                                                 Forwarded/by Order

          Senior Superintendent