DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 05th day of April, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 31/11/2019
CC/254/2019
Rohin Duttu Jose,
Proprietor,
Crystal Designer Tiles & Pavers,
8-96-97 Ozhalappathy,
Vadakarapathy,
Chittur Palakkad – 678 557 - Complainant
(By Adv.M.P.Ravi & Adv. M.J.Vince)
Vs
- M/s. Ashok Leyland Ltd.,
No.23/500E, Kallupurakal Centre,
Edappally,Pookkattupadi Road,
Changampuzha Nagar (PO),
Cochin – 682 033.
- The Service Manager,
M/s. Malayalam Motors Pvt.Ltd.,
4/315, Near Mookambika Rice Mill,
NH 47, Kinassery PO,
Palakkad – 678 707.
- The Managing Director,
Ashok Leyland Ltd.,
No.1, Sardar Patel Road,
Guindy, Chennai – 600 032. - Opposite parties
(O.P.1 & 3 by Adv.P.Anil & M/s.Menon & Pai Associates
O.P.2 by Adv.B.Sulfikker Ali & M/s.Menon & Menon Associates)
O R D E R
By Sri. Vinay Menon V., President
- Abridged pleadings of the complainant is that he purchased an Ashok Leyland Dost LS plus BS4 manufactured by 3rd OP company from 1st respondent on 27/10/2017. The complainant had availed extended warranty for the vehicle. The vehicle was being used for transportation of paving tiles. On 22/07/2009 the complainant noticed some sounds from the vehicle and upon inspection it was found that the chassis was suffering from damages and the vehicle was handed over to the second respondent for rectification by way of replacement of the chassis. Thereafter the 2nd opposite party informed the complainant that the damage was caused due to abusive usage of the vehicle and that replacement will not covered under extended warranty and sought for charges. This conduct on the part of the opposite parties tantamount to deficiency in service. The complainant has sought for the amount he has paid for repairs alongwith 12% per annum interest from the date of payment alongwith compensation and other incidental reliefs.
2.(1) The opposite parties 1 & 3 filed detailed version raising a plethora of contentions of legal and factual nature. The factual objections which merit reference here are that the damage to chassis occurred due to the rash and negligent usage of the vehicle on the part of the complainant. The complainant had failed in maintaining proper air pressure in the wheels. The complainant had failed to carry out timely services thus violating the terms of warranty. Thus having violated the terms and conditions of warranty, the complainant is not entitled to receive coverage under warranty conditions. The complainant has repaired his vehicle from another workshop who is not an authorized dealer.
(2) The 2nd opposite party filed version contending that the extended warranty coverage is provided by M/s.TVS Automobiles Solutions Ltd., (TASL), and TASL is a necessary party to the dispute. The TASL had rejected the claim of the complainant for replacement under the extended warranty. The complainant refused to grant permission for carrying out the necessary repairs on payment basis. There is no deficiency in service on the part of this opposite party.
3. The following issues arise for consideration:
- Whether the complainant has succeeded in proving manufacturing defect on the part of opposite party No.1?
- Whether the complainant has succeeded in proving deficiency in service on the part of opposite party 2?
III. Whether the complainant is entitled to any reliefs sought for?
IV. Any other Reliefs?
4. (i) Complainant filed proof affidavit and marked Ext.A1 to A3.
(ii) Opposite parties 1 & 3 filed proof affidavit and marked Exts.B1. Witness for OPs 1 & 3 was examined as DW1.
(iii) Report of the Expert Commissioner was marked as Ext.C1.
Issue No.I
5. Per complaint pleadings, the vehicle was purchased on 27/10/2017. The alleged damage occurred on 22/7/2019. There is a gap of approximately two years from the date of purchase to the date of development of the damage. The vehicle was being put to continuous use during this period. It is not the case of the complainant that the defect was of latent nature.
6. In order to ascertain the damages suffered by the vehicle the complainant took out an expert commissioner. He filed his report which was marked as Ext.C1. In page 3 of Ext.C1 the expert commissioner details his findings. The relevant portion is reproduced below:
“So I came to an opinion that the defect was not due to manufacturing defect but the crack was occurred on chasis frame which is the most important part of the vehicle due to periodical usage. The complainant reported regarding the matter to the respondents in proper time but the respondents failed to cure the defects by way of welding in a proper manner. Instead of this they requested the complainant to replace the chasis frame in his own costs which will cause huge financial loss to the complainant. The defect can be easily cured by the way of welding as the complainant have repaired it from any other party. So serious deficiency from the part of respondents is hereby reported by me as they failed to render repair services of the vehicle on time. Request from the part of the complainant that the chasis from to be replaced cannot admitted at the same time the complainant is eligible for the repair costs on the chasis frame for curing the defects. And idle compensation on the period.” (sic)
7. Both the complainant and opposite parties 1 & 3 filed objection to the aforesaid report of the expert. Ground for objecting Ext.C1 report by the complainant was that (for the purpose of determining this issue) the expert had not stated the cause for the crack in the chassis. Paragraph 2 of the objection filed by the complainant is as follows:
“2. He has gone in detail to look into the manufacturing defects of the vehicle and found none whereas the complainant has no such case.”
Thus it can be seen that the complainant has admitted that he has no case of manufacturing defects. In the absence of a case of manufacturing defect there is no need to adjudicate on the question of manufacturing defect as against opposite parties 1 & 3.
8. Thus we hold that there is no manufacturing defect in the vehicle of the complainant.
Issue No.II
9. Complainant’s case is that the second opposite party refused to carry out the works of the vehicle while it was under extended warranty. The opposite party 2 contended that the benefits under the extended warranty are provided by one TASL and that they had no part whatsoever to play in granting the benefits under extended warranty.
10. Pursuant thereto the complainant filed an application as IA 62/2020 seeking a direction to opposite party 2 to produce the address of M/s.TASL. Time was granted for opposite party 2 to produce the address from 3/3/2020 till 13/11/2020. Since the address was not produced the IA was closed on 13/11/2020.
It is the unambiguous case of the 2nd opposite party that the extended warranty facility are provided by them and impleading M/s.TASL is necessary for adjudicating the dispute. Inspite of this, they had failed to produce the address of M/s.TASL even after receiving clear directive from this Commission.
It is also pertinent to note that 2nd O.P. has not adduced any evidence to substantiate their pleadings regarding the repudiation made by M/s TASL. They have not produced any documents to show that M/s.TASL had contacted them and communicated their disapproval of the claim of the complainant. Thus we hold that the entire conduct of the second opposite party is devoid of transparency and is shady in nature. Thus we can safely resort to an adverse inference as against OP2.
11. Resultantly, we hold that the complainant was entitled to repairs under extended warranty conditions and that the 2nd O.P. had failed to provide the complainant the benefits of extended warranty.
12. We hold that there is deficiency in service on the part of 2nd opposite party in not providing services to the complainant under extended warranty conditions.
Issue No. III
13. Reliefs sought for by the complainant is for Rs.5,000/- being the amount paid by the complainant for repairs along with 12% p.a. from the date of payment along with Rs.1 lakhs as compensation to the complainant and for costs.
14. In the facts and circumstances of the case, even though the complainant had not produced any documents to prove that he had extended Rs.5,000/- for welding the crack, we are of the opinion that the claim is reasonable. As the complainant has not produced any documents to show the date of welding we tentatively hold the date of filing of this complaint to be the date of welding for the purpose of calculation of interest. But we are not inclined to allow a compensation of Rs.1 lakh.
Issue No. III
15. Therefore we hold as herein below:
1) The complainant is entitled to Rs.5,000/- (Rupees Five thousand only)
2) The complainant is entitled to an interest @12% p.a. on the aforesaid amount from
31/11/2019 till the date of payment.
3) The complainant is entitled to Rs.25,000/- (Rupees Twenty five thousand only) for deficiency in service on the part of the O.P.2.
4) The complainant is entitled to cost of Rs.15,000/- (Rupees Fifteen thousand only) from O.P.2.
6) The opposite party 2 is directed to pay these amounts within 45 days from the date of receipt of a copy of this Order, failing which the opposite party shall pay a solatium of Rs.250/- per month or part thereof till the date of final payment.
Pronounced in open court on this the 05th day of April, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext. A1 – Copy of lawyers notice dated 19/8/2019
Ext.A2 – Copy of lawyers notice dated 16/9/2019
Ext.A3 – Copy of lawyers notice dated 28/8/2019
Exhibits marked on the side of the opposite party:
Ext.B1 – Original Brochure of the vehicle
Court Exhibit:
C1 – Commission report dated 20/01/2021
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
