BEFORE THE DISTRICT FORUM:KURNOOL

Present: Sri.P.V.Nageswara Rao,M.A.,LL.M., President(FAC)

And

Smt. C.Preethi,  M.A.LL.B., Lady Member

And

Sri. M.Krishna Reddy, M.Sc.,M.Phil., Male Member

Thursday  the 17^th  day of September, 2009

C.C. 11/09

 Between:

M. Abdul Lateef, S/o. Late M. Nazeer Ahammed,

R/o.12/812, Maseedpura, Adoni 518301 Kurnool District.                 

                        …Complainant

-Vs-

1. M/s. Automotive Manufacturers Pvt.Ltd., Represented by its Branch Manager,

Post Box.No.1, Santosh Nagar Colony,N.H.7, Kurnool 518 003.

2. M/s. Automotive Manufacturers Pvt.Ltd., Represented by its Authorised Signatory,

Post Bag No.6, N.T.R.Colony, Vijayawada - 520 008.

3. M/s. Ashok Leyland Limited ,Represented by its Managing Director,

Regd. Office .19, Rajaji Salai, Chennai - 600 001.                          

…Opposite Parties

                        This complaint is coming on this day for orders in the presence of Sri. M. Sivaji Rao , Advocate, for the complainant , and Sri. A. Rama Subba Reddy ,  Advocate for opposite parties 1 to 3 and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. P.V.Nageswara Rao,President (FAC)

C.C.11/09

1.     Complaint filed under section 11 of the Consumer Protection Act 1986.

2.     The brief facts of the complaint is as follows:-  The complainant purchased  one ECOMET Leyland Mini lorry on 20-03-2008 from opposite party No.1 for Rs.8,35,364/- under invoice No. KB/LC/23/1276 . It was manufactured by opposite party No. 3  and delivered  by opposite party No. 2  . The Chasis No.  was PNR 159628 and engine No. was PNE 005906Y and warranty period was 18 months from the date of  sale or 1,50,000 K.M which ever was earlier . After purchase  the vehicle was bringing from Adoni to Kurnool. The complainant faced brake  problem to the vehicle. The complainant took the vehicle to opposite party No. 1 where it was repaired. However  the problem continued  and it was  informed to opposite party No. 1  who told  that it would be  rectified  after  a few  days. It was kept  idle at the house  of the complainant  without running on the road even  getting registration  and permit. After  getting the registration number  and permit the vehicle went to Pune for the first trip. But it gave brake problem. Whenever the brakes  were applied the vehicle was not stopped  but rolling down with big noise and stopped at a long distance . Even for stopping  the vehicle the driver had to apply the brakes  by force for atleast ten times and then it would be stopped .Within 15 days  after purchase the vehicle gave the problems  such  as failure  of brakes  drums , no self start,  heavy noise  from the engine , gears  slipping resulting  the  engine stopping  ,  hub problem  , axel problem  and the vehicle  would turn to left side resulting  early worn out of the tyres  . The complainant brought  back the defective  vehicle  from Pune to Kurnool  with low speed  by toeing with another  lorry bearing No. AP 31 V 5643  belonged  to one M. Akthar Javeed of Adoni. The vehicle was brought to opposite party No. 1 on 02-04-2008 , 09-04-2008 , 26-04-3008 and 29-04-2008  for rectification of defects. The  employees  of opposite party No. 1  noted the  problem and took it for conducting the repairs.  Every time opposite party No. 1  used to note down the problems  in job cards  to avoid its  liability  towards the complainant.  Every time  the complainant  was forced to sign the job cards  and empty forms  with regard  his satisfaction after repairs . Unless he was signed in the  job card ,he was not allowed  to have a test drive and take back the vehicle. Even after  test drive the complainant  found the same  defects but the opposite party No. 1 refused to take back the  vehicle by saying  that the problems  would be adjusted after running of some time.

3.     On 29-04-2008 after getting  repaired  the complaint took it for use. On 07-05-2008  the complainant  took the vehicle  with  chilly load  at Ibrahimpuram to Badigi , Karnataka State from Ibrahimpuram , Yemmiganur (M) . After reaching Bellary  around 1-00 A.M  on 7/8  May 2008 the vehicle  brakes suddenly fail and there was  a problem in main axel and driver  last control  and fell down on the  left side of the road resulting the death of the  cleaner ,  hamali and owner of the goods . A case was  registered  as FIR No.146/2008 by Bellary Rural Police Under Sec. 279  , 337 ,338 , and  304 A IPC  R/w Sec.  187 MV  Act against the lorry owner . The major accident was due to manufacturing defect  of failure  of brake  drums , no self start , heavy noise  from the engine , gears shipping  hub problem,  houging problem and main axel problem. On account of major accident , the complainant had  much damage  to the vehicle . It was  manufacturing  defect. If the brakes  were in good condition  and no problem  with axel , then the driver would have  avoided  the accident .

4.     The complainant brought the vehicle  from Bellary to Kurnool and handed over  the damaged  vehicle to opposite party No. 1 for carrying out repairs on 20-03-2008 . The opposite party No. 1 promised to conduct  the repairs  on free of cost . The opposite party No. 1  gave a token No. W 0809 -1611 and a job card No. 0809-1533  and promised  to deliver the vehicle   on 30-06-2008  . Even after the  repairs were conducted , the same problem  was repeated .There was no guarantee of fitness of the vehicle.  The opposite party No. 1  admitted  that the model of the vehicle was a failure model and some other  owners who purchased vehicle  on 05-10-2006  with registration No. AP 21 X 5054 were facing the same problem except replacement of  the  defective vehicle  . There  was  no  other  alternative  to  the  complainant .  On 27-04-2008  the complainant got issued  a notice to opposite party No. 3  for replacement of the  damaged vehicle with new one . The opposite party No. 3 in his reply dated 30-06-2008 by                   denying the allegations and replace with new one . The opposite party No. 1 later  demanded   illegally  the demurrages charges from complainant. On 20-03-2008 the opposite party No. 1  received the vehicle and promised to deliver the vehicle on 30-06-2008  after completing the repairs of free of cost.  The complainant purchased  the vehicle under hypothecation agreement  with M/s. Shriram Transport Finance Company Limited , Adoni with monthly  installments of Rs.20,450/-  for four years  period . On account  of defects  the complainant  failed to pay the installments  . If the  vehicle was  free from frequent defects ,the complainant would have  earned Rs.25,000/- per month as profit ,but he lost income. It was purely at manufacturing defect sold by opposite parties 1 and 2  and failed to rectify the  defects . It would amount to deficiency of service .The financier  was demanding installments  . Thus , the complaint was filed  against opposite parties  jointly and severally to replace  the defective vehicle  with new one or  to return  the cost of the vehicle and squash the quotations No.0809 - 48 dated  26-05-2008 and demand  letters for demurrage charges dated 09-09-2008  , 29-09-2008  ,  03-11-2008 , 18-11-2008 and pay  Rs.1,00,000/- towards mental agony and costs.  

5.     The opposite party No. 1 filed a written version  that the complaint was not a consumer  because it was purchased for commercial purpose  .It was not  correct that  the opposite parties  sold a defective vehicle to the complainant . All the other allegations  alleged by the  complainant were  not correct  and denied . There was no  major complaint  from the beginning  as alleged by the  complainant . The defect was  imaginary  and denied . The opposite party No. 3  at service net work at every  district and complainant could not availed the service at authorized centers  of opposite party No. 3 . It was not correct that the opposite parties  failed to note down  the defects at the time of conducting repairs   . The complainant had an opportunity  to inform the defects  to the opposite party No. 3. In the notice the complainant  admitted that  every time  the defects  were noted and recorded  by opposite party No. 1 attended to all the defects. Every time  the complainant satisfied with the services  provided by opposite party No. 1 . The opposite parties  never obtained signatures  on blank form . The complainant never approached  the opposite party No. 1  for service  except  on 02-04-2008  , 09-04-2008 , 26-04-2008 ,29-04-2008  for minor problems. It was  not correct that  the accident  occurred  due to failure of brake system  and problem  in the main axel. There was no manufacturing defect with the brake  drums in the vehicle  purchased  and there was no  failure  of brake drums because the  brakes fitted in the vehicle purchased by the complainant was self adjustable  brakes . It was  not correct that there was defect with self starter , abnormal noise in the engine  ,stoppage of vehicle due to  slipping  of gears and hub problem , axel problem  . They were  invented  by the complainant . The job card  No. 5  filed  by the complainant  was clear   with regard to running of vehicle  as on the date  of conducting repairs as 19040 KMS  within a span of 43 days  after purchase  . It showed that the vehicle was in good condition  . It was not correct that the opposite party No. 1 promised to conduct  the repairs  on 20-03-2008 on free of cost. On 24-05-2008 the complainant requested  for estimation for carrying out   repairs to the accidental damaged  vehicle. The opposite party No. 1 gave the tentative estimation repairs vide ref.No.0809-48 on 26-05-2008 for Rs.1,95,815/- and same was acknowledged by complainant . As per the job card  terms and conditions  50% advance  had to be deposited  and estimate approval would be given  for carrying necessary repairs . Without making any  advance  payment ,there was no question  of delivery of vehicle on dated 30-06-2008. The opposite parties  addressed letters to the complainant  as vehicle was idle in work shop. The estimation did not cover any spare parts  connected with defect. The complainant got issued notice dated 27-04-2008 to opposite party No. 3 with copy to opposite party No. 1 . The defects mentioned in the complaint were not found  in the notice . As per the notice the date  of accident was after issuing the notice  . The opposite parties  sent a proper  reply . The accident occurred  due to rash and negligent  driving of the driver and the M.V Inspector  tested the brake system  and found that it was in order and the accident  was not due to mechanical defect .Thus,  there was no  merits  in the compliant  and may be dismissed  without costs.

6.     The opposite party No. 3 filed a written version adopted by opposite party No. 2 with a memo. The opposite party No. 3 admitted the purchase  of the vehicle by complainant  for commercial purpose   and he was not a consumer because purchase was for commercial purpose as a commission merchant  in vegetables  at Adoni. The complainant had not  reported  the brake problem faced by him by traveling from Adoni to Kurnool  after purchase  to opposite party No. 1 prior to registration  date  25-03-2008 and  fitness  certificate by the RTO was issued and permit was given on 26-03-2008 . There was service dealer points at every district  of opposite party No. 3 for rectification  of the defects . The complainant would have  reported the  same but he did not do. The vehicle  was first brought  to opposite party No. 1 on 02-04-2008 under job card No. 0809-41 with complaint of alternator check , and airline check up . But brake complaint was not made. He reported   three   times  to  opposite  party No. 1 on  09-04-2008 under job card  No. 0809 /148   for complaint  of Hub check up after completion of 1934 kms. On 26-04-2008 under job card No. 0809-694 he brought the vehicle  for free service with  check up  of rear brake booster after completion of 7377 kms . On 29-04-2008  under job card  No. 0809-764  he brought the vehicle  for complaint  of head  light problem  after completion of 7584 kms  . There was no complaint of failure  of brake drum , heavy noise  , gears  slipping ,hub  and houging  problem  , axel problem   and when the brakes  failed the vehicle  would turn by bending to left side resulting the early  worn out of the tyres.  The self starting was attended  under the warranty and no hub or houging problem was noticed . A small oil  leakage  was replaced with oil seal. The complainant  failed to show  any endorsement  that he brought  vehicle from Pune to Kurnool in towing the condition  with lorry No.AP 31 V 5643. It showed   the version  of the complainant was  false. It was not correct that the opposite party No. 1 failed to note the problems stated  by the complainant . It was not correct  that the opposite party No. 1 obtained signatures on empty forms .It was admitted  by the complainant in his notice that every time the office manager  would record the defects and problems  of the lorry . The complainant never  approached  the opposite party No. 1  at any time except  on 02-04-2008 , 09-04-2008  ,26-04-2008, and 29-04-2008   . The accident was  not  due to mechanical  brake down. The M.V. Inspector  tested the vehicle  and recorded  that the brake system was  found in order  . The Bellary Rural police  registered  a case in FIR 148/08  against driver for rash and negligent  driver . As per FIR and compliant , there were  9 occupants  including  driver at the time of accident  resulting three persons died and five others sustained bleeding injuries . It was permitted only to three persons  traveling because the vehicle was a goods vehicle .There was no manufacturing  defect as alleged  by the complainant . The Research  and Development Centre  of opposite party No. 3 conducted the testing at Chennai and then release the vehicle  for commercial purpose  production . The accident  vehicle  was received by opposite party No. 1  on 24-05-2008  with  damages  and  opposite   party No.1 issued    token  for  handing  over   the   vehicle   for   repairs. . On 26-05-2008  the opposite party No. 1 gave  quotation for Rs.1,95,815/-  for conducting  the repairs  to which the complainant   signed  the quotation but no approval  was received to  carry out  the accident repairs. The quotation  did not contain the spare parts connected  to the defects .The opposite party No. 3 sent reply to notice dated 27-04-2008 to the complainant. The opposite party No. 1 never  expressed that the model  of the vehicle  was defective and requested 50% advance for conducting repairs  . The vehicle covered  19040 kms from the date of registration i.e, 25-03-2008 till the date of accident 08-05-2008 within a span of 43 days . Thus it was in good condition  . Hence there was no  manufacturing defect and there was no merits in the complaint and there was no deficiency on part of opposite parties  and hence the complaint may be dismissed with costs.

7.     On the basis of the above pleadings the points for consideration are

(i)     Whether there is any negligence or deficiency of service on the part of  the opposite parties .

(ii)    Whether the complainant is entitled to the relief as prayed for?

(iii)  To what relief ?.

8      On behalf of the complainant Ex.A1 to A11 were marked . On behalf of the opposite parties Ex.B1 to B13 were marked.

Both parties filed written arguments.

9..    Point No. 1 & 2:    There was no dispute that the complainant   purchased one  ECOMET Mini Lorry  manufactured by opposite party No. 3 from opposite party No.1 the seller of the  vehicle. The opposite party No. 2  delivered the vehicle  to opposite party No. 1 to sell it to the complainant under invoice No. KB/LC/23/1276 dated 20-03-2008  for Rs.8,35,364/- with Chasis No. PNR 159628 and engine No. PNE 005906Y .The Xerox copy  of the invoice  filed  by the complainant  was Ex.A2 . Ex.A1  was the operator manual issued by   opposite party No. 3 .The warranty  period was 18 months or 1,50,00 kms  which ever was earlier from the date of sale. The complainant contended  that after it was purchased  he was bringing  the vehicle from Adoni to Kurnool . But he faced brake problem  and immediately  it was brought  to the notice of opposite party No. 1  who conducted the repairs .But it  was continued  even  after the repairs  of the brake system was conducted .However  the complainant alleged  that within 15 days  after the  purchase  he noticed failure of brake drums , no self start , heavy  noise from the engine , gears slipping frequently  resulting engine  stopping , houging problem and hub problem , and main axel problem  and  even brakes  were applied  the vehicle  would take  a turn by bending  to left side resulting earlier  worn out  of the tyres  . The complainant  on 02-04-2008 brought the vehicle to opposite party No. 1 for alternator   assembling  and Air line check  up and opposite party No. 1 issued  a job card 0809-41 under Ex.B1 on  which  the complainant signed that he   agreed for the  repairs. This  date   of  02-04-2008 was admitted  in the complaint.  By then the mileage was 1934 KMS. The complainant contended further that even after conducting  the repairs the vehicle started  major problems and at one occasion  he brought the vehicle from  Pune to Kurnool  with low speed by towing  with another lorry  bearing No. AP 31V 5643  belong to one Aktar Javeed of Adoni. But there was no proper proof. The complainant  admitted  that on 09-04-2008 and 26-04-2008 and 29-04-2008 he went to opposite party No.1  with the vehicle  for conducting the repairs  . The opposite party No.1  filed the job  card for the said dates  under Ex.B2 to Ex.B4 . Under Ex.B3 the repairs conducted was  free services  and check up rare  brake booster  and under Ex.B4  the repairs  conducted   was to head light relay . hub oil seal one side was attended  under Ex.B2 . By the time Ex.B4  dated 29-04-2008  the running mileage  of the vehicle was 7584 kms from the date of purchase  20-03-2008 . So within  that period the vehicle was in good condition. Even if  the opposite party No. 1 demanded  the complainant  to put the signature  on the blank job card he would have brought to the notice of opposite party No. 2 and 3 . He was silent . Even by the  date of Ex.B1 ,the vehicle completed 1,934 kms i.e, within 13 days  from the date of purchase . On 07-05-2008  while the vehicle was going  to Badigi , Karnataka District  from Ibrahimpuram (V) Yemmiganur (M) it met with an accident  around 1-00 A.M   on 07/08 May 2008 , near Bellary out skirts  causing death  of some persons  and severe  injuries  of some other  persons . The complainant alleged  that the accident was due to brakes failure  and main axel  problem  and on account of it the driver lost the control and fell down on the left side of the road. The Bellary Rural Police registered a case as Cr.No. 146/2008 U/S 279 , 337 , 338 , 304A IPC R/w  187 M.V.Act. After the accident the complainant brought  the vehicle to opposite party No. 1 on 24-05-2008 for conducting repairs  . He filed Ex.A4 a job card issued by opposite party No. 1 dated 24-05-2008  with delivery  dated as 30-06-2008 for conducting  major damage to front  cabin . By that time the vehicle run  1,90, 40/-kms  i.e,  within a span of 2 months . He filed Ex.A3  copy of visitors  gate pass at opposite party No. 1 . The opposite party No. 1  also filed similar job  card copy as Ex.B10 . Ex.B11 was the vehicle admission slip issued by opposite party No. 1  . The opposite parties filed a copy of the FIR under Ex.B9. Ex.B5 was the satisfaction certificate dated 09-04-2008 signed by the complainant . Ex.B6 is another satisfaction certificate dated 26-04-2008  . Ex.B7 was another satisfaction certificate  dated 29-04-2008 . After  accident  the MV inspector  tested the vehicle and found the damage to the vehicle and opined  that the accident was  not due to any mechanical defects of the vehicle. Ex.B8 was the Xerox copy of the  M.V. Inspector  report. The opposite party NO. 1 at the request of the complainant gave an estimation for Rs.1,95,815/-  for conducting the repairs  to the accidental  vehicle. Ex.B12 was the  quotation issued by opposite party No.1 . Ex.B10 and Ex.A4 were one  and same. The opposite party No. 1 filed  a Xerox  of the registration certificate  of the vehicle of the complainant  bearing registration No. AP 21 Y 2494 under Ex.B13.

10.    On 27-04-2008 the complainant got issued  notice to opposite party No. 3 to replace the vehicle with new one . The office copy was Ex.A5 with postal acknowledgement  and receipt. Ex.A6 and B12 were one and same. Ex.A7 A8, A9, A10, were the letters addressed by opposite party No. 1  to the complainant. The opposite party No 1 demanded  50%  advance amount  for conducting  the repairs  to the damaged vehicle  under the said  letters . Ex.A11 was the reply notice sent by opposite party No. 3 to the notice  under Ex.A5 . Thus on seeing any  angle there was no mechanical  defect and at every time when ever the complainant  visited and brought the vehicle to opposite party No. 1 , he never mentioned  the defects mentioned in the complaint  particularly  brakes and axel. If the defects mentioned in the compliant were  really  found that would have been mentioned in the job cards   filed by the complainant  as well as the opposite parties  and incase the opposite party No. 1 failed to received the complaint and major defects ,the complainant had an opportunity  to refer the matter  to opposite party No. 3 . But he was silent . The reason was the said defects were not really found to the  vehicle. Therefore there was  no deficiency  of service on part of the opposite parties  and the decision submitted by the complainant in IV (2005) CPJ 491 RAVINDER KUMAR Vs  MARUTI UDYOG LIMITED & ANOTHER that  volume of repairs and repeated visits at work shop proved  that the vehicle could not be properly used. It  is not applicable to the  present  facts of the case. Similarly IV (2005) CPJ 648 ASHOK KESHARLAL SARAF (deceased) Vs TATA MOTORS LIMITED AND ANOTHER  where  in the vehicle  was taken to the work shop for 10 times within a period of 3 months  and however there was no smooth run  on the  road  . But the said  decision is not applicable  to the present case . Because the opposite party No. 1 conducted repairs  as shown  in the job cards and the complainant  failed to mention  defects in the complaint  to opposite party No. 1  . As discussed earlier, the vehicle was on road with milage of 19040 kms from 20-03-2008 to 24-05-2008 . So it was in good condition . Thus there is deficiency of service on the part of opposite parties 1 to 3.

11.    In the result , the complaint is dismissed without costs.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 17^th day of September, 2009.

LADY MEMBER              PRESIDENT FAC)     MALE MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant :  Nil           For the opposite parties :Nil

List of exhibits marked for the complainant:-

Ex.A1.       Operation manual.

 List  of exhibits marked for the opposite parties:   

LADY MEMBER               PRESIDENT (FAC)               MALE MEMBER           

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties      

Copy was made ready on                :

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