IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 15th day of December 2009 CC.No.318/2005 A.K.Sarojini Amma, Amaravathi. Eruvatty, Complainant Kadirur (Rep. by Adv.N.Vinodkumar) 1.M/s.Tata Engineering 26th Floor, Centre.No.1, World Trade Centre, Cuffe Paradem Mumbai. 2.M/s.Sakthi Automobiles, Opposite parties Rehman Building, Thana Road, Kannur. (Rep. by Adv.P.Rajeev) O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite parties either to replace the defective vehicle or to refund its purchase price along with Rs.50,000/- which was incurred for replacing the parts and for repair and Rs.50,000/- as compensation and cost. The complainant’s case is that she had purchased a Tata pick up for an amount of Rs.3, 58,654/- and was registered before SRTO, Thalassery having registration number KL.13/7-6658. The 1st opposite party assured a warranty of 3 ½ years to engine and 1 ½ years to the rest of the vehicle and will repair or replace the defective parts free of charge. The complainant had availed all the recommended services of the vehicle through 2nd opposite party as per the warranty. But within one year itself, the engine and other parts of the vehicle become defective and hence she had replaced the parts of the vehicle such as clutch disc two times, leaf five times, crown wheel pinion, oil seal pinion, rear axils stopper, front wheel spring, pad assay, pivot bush Howe arm bush, coil spring battery etc. at her own cost for which she had incurred Rs.50, 000/-. The opposite parties are not ready to comply the conditions of warranty. Even after carrying out all the recommended. Services, repairs and replacement of the spare parts of the vehicle, the defects still persist. The 2nd opposite party stated that the vehicle could not be rectified further due to some inherent manufacturing defects, while it was taken for repair during 2005 August and the only one way to rectify the defects is to replace the engine. Moreover the spare parts of the above said vehicle are not available since the 1st opposite party had stopped the production of the said model. The manufacturing defects of the vehicle produces abnormal noise and pollution causes unusual wear and tear to the disc, plate, tyres etc and consume more oil and fuel. Moreover within the period of warranty the 2nd opposite party failed to perform the repairs and services of the vehicle. So the acts of the opposite parties are amounts to breach of contract and the opposite parties are liable to pay compensation and they are liable to replace the vehicle or to refund the purchase value. So the complainant issued a registered lawyer notice to the opposite parties, they issued a reply stating that if the complainant’s case is bonafide and genuine it would be resolved. But the opposite parties had not taken any steps to redress the grievances. Hence this complaint. On receiving notices from the Forum both the opposite parties appeared through Adv.P.Rajeev and filed their version. The opposite parties contended that the complainant is not a consumer since the complainant is not operating the vehicle for her own. The opposite parties admit the purchase and warranty of the vehicle. But the warranty is limited for the manufacturing defects and does not extend to each and every complaint. The warranty is not applicable for the defects caused due to improper usage of the vehicle, normal wear and tear of perishable parts and for consumable items like lubricants etc. According to opposite parties, the engine does not have any manufacturing defects which necessitate the replacement of the entire vehicle as such. The clutch disc, pad, assembly, front wheel brake liners, pivot bush, lower arm bush and suspension etc. are normal wear and tear and are not covered under warranty. The leaf spring complaint was reported once and was welded on the next day and replaced free of cost under the warranty. The opposite parties have not carried out any work as far as the crown and pinion oil seal, rear axle stopper and battery are concerned. The said model is still being manufactured by 1st opposite party. When the vehicle came in the second week of August 2005 for service never had any defect in its engine nor did the driver who bought the vehicle report of such defect. The vehicle does not have a complaint of excess smoke emission also. The amount of Rs.50, 000/- may be utilized for consumable parts. So the complaint is liable to be dismissed. Upon the above contentions the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency on the part of opposite parties? 2. Whether the complainant is entitled to any relief as prayed in the complaint? 4. Relief and cost. The evidence in the above case consists of the oral testimony of PW1, DW1 and Exts.A1 to A7. Issue No.1. The opposite parties contended that the complainant is not operating the vehicle on her own and hence does not come within the purview of the word consumer as defined in the consumer protection. Act. But as per consumer protection act section (2)(d)( ) consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration. In this case the PW1 deposed that “hml\T tPmenbnÃm¯ Fsâ A\nb\pthn hm§nbXmWv”. The PW1 is the son of the complainant. So it is clear that the complainant had purchased the vehicle for her son and is being used for his livelihood. So we hold that the complainant is a consumer and the vehicle is being used for the livelihood of her beneficiary and the issue No.1 is found in favour of the complainant. Issue Nos.2 to 4 The complainant contended that the vehicle has manufacturing defects and hence it became defective during warranty period and had incurred Rs.50, 000/- for replacing the defective parts. Ext.A1 is the warranty, and A3 series are bills through which the complainant had repaired the vehicle. As per Ext.A1, the engine has 3 years warranty and other parts have 1 ½ years warranty except the parts which have normal tear and wear. But the complainant has a case that the vehicle has inherent manufacturing defects. But no evidence including expert’s opinion is before us to substantiate her contentions. The complaint has produced certain bills as Ext.A3 series. Some bills are with respect to the other parts and normal wear and tear and oils, which are after the expiry of warranty except Ext.A3 (6)? Some bills are not from the authorized service centers. The Ext.A3(6) is a bill dated 5.8.05 issued from Tata Motors for an amount of Rs.750/- for rear Axle overhauling which is another part of the vehicle having guarantee of 1 ½ years. So the above said bill was issued within the warranty period itself, even though he opposite party has liability to repair it free of cost. So we are of the opinion that the complaint failed miserably to prove beyond doubt that the vehicle has inherent manufacturing defect. But 1st opposite party has shown deficiency by issuing Ext.A3(6)bills during warranty period for which 1st opposite party is liable to compensate the complainant The 2nd opposite party has no role and hence he is exonerated from liability. So we are of the opinion that 1st opposite party is liable to refund Rs.750/- the amount as per Ext.A3 (6) with Rs.2000/- as compensation and Rs. 500/- as cost and order passed accordingly. In the result, the complaint is allowed directing the 1st opposite party to refund Rs.750/-(Rupees Seven hundred and fifty only) the amount as per Ext.A3 (6) with Rs.2000/- (Rupees Two Thousand only) as compensation and Rs, 500/- (Rupees Five hundred only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the owners Manual & service book A2.Excise Chelan for removal of excisable goods A3.Cash bills issued by OP1. A4.copy of the lawyer notice sent to OP A5 & A6..Reply notices A7.Copy of notice of contract termination Exhibits for the opposite parties: Nil Witness examined for the complainant PW1.A.K.Narendran Witness examined for the opposite parties DW1.Anoop V Manoharan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
