| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Friday the 30th day of June 2023 C.C.122/2012 Complainant Nasar.E S/o.Muhammed Edavana House, Choolur Post, N.I.T – Via, Kozhikode – 673 601. (By Adv.Sri.C.K.Madhusudan) Opposite Parties - M/s.Sakthi Automobiles
Rep. by Manager, 23/398, Meenchanda, Calicut Arts & Science College – P.O, Kozhikode – 673 018. - M/s.Tata Motors Limited
Rep. by Manager, 26th Floor, Centre No.1, ‘World Trade Centre’, Cuffe Parade, Mumbai – 400 005. - Manager,
M/s.Tata Motors Limited, Teen Hatch Naka, Gyan Sadhana College Service Road, Thane – 400 604. - Area Service Manager,
M/s. Tata Motors Limited, Area Service Office, ‘Tutus Towers’, 3rd Floor, N.H.Byepass Road, Palarivattom, Kochi – 682 024. (OP 2 to 4 - By Adv.Sri.V.Krishna Menon, Adv.Sri.K.Abdussalam, Adv.Sri.U.K.Devidas & Adv.Sri.Prinsun Philip) ORDER By Sri. P.C. PAULACHEN – PRESIDENT. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainants, in brief, is as follows:
The complainant is a driver eking his livelihood by driving vehicles for the purpose of transporting construction materials to the construction site of those engaged in building construction. While so, persuaded by the advertisements of the opposite parties that their MGV TIPPER is uniquely efficient, the complainant purchased the same on 30-06-2011 an MGV TIPPER, open tipper, Engine No.497TC92EYY828067 – Chassis No. MAT454201B8e21882, manufactured in May 2011, from the 1st opposite party. The vehicle was manufactured by the second opposite party. For purchasing the vehicle, he had availed a loan from M/s. Sundaram Finance Limited. The total cost of the vehicle came to Rs.8,35,000/-. There was an offer of free maintenance for 3 years/3,00,000 kilometers for the said vehicle. In addition, the opposite parties had offered a free insurance for the driver up to Rs.5 lakhs. - After paying the entire amount for the vehicle, the complainant was given the key and while he was driving the vehicle out of the show-room, a deafening sound emanated from the engine of the vehicle, causing the vehicle to jerk and stall. Since this happened on the first day in the first opposite party’s premises itself, the mechanics rushed to inspect the engine. After inspection, they took out an iron piece from inside the engine and told the complainant that the iron piece was the cause of such a sound and that the vehicle was free of any problem. Believing their words, the complainant took the vehicle out of the show room and as he was going to the petrol bunk to fill fuel, an explosive sound shot out of the engine compartment, causing the workmen at the bunk to run for cover. The workshop of the first opposite party was next to the petrol bunk and immediately, the workmen from the workshop arrived and took the vehicle to the workshop. They said after inspection that they had to change certain parts of the engine so as to set the working of the engine right. Accordingly, they replaced certain engine parts and the complainant finally took delivery of the vehicle after two days. When the vehicle was handed over to the complainant the first opposite party promised that if any problem arose for the vehicle again, the vehicle itself would be replaced.
- However, the vehicle was full of problems right from day one onwards. The vehicle was again taken to the first opposite party with a complaint that power steering would get stuck at times and also while applying the brake, the vehicle would swerve out of control to one side. The mileage promised by the opposite parties was 6 kilometers per litre. But the vehicle gave only around 3 kilometers per litre. The oil consumption was so high that the engine got extremely hot even after a short trip. The tyres of the vehicle would wobble, the brake –liners would get stuck midway during trips. The brake liner had problem and the tyres got worn out in no time. The complainant on suffering these problems had approached the first opposite party off and on. Initially, they would say that everything would be all right after the first service. On 27-07-2011, the vehicle was taken to the first opposite party. From the service history provided to this complainant, it could be seen that miscellaneous activities were carried out. The complainant had voiced the complaint that there was Turbo noise. When the vehicle was given for repair, the vehicle was having Turbo noise. In spite of the repairs carried out by the first opposite party, all the above mentioned problems persisted. Again on 29-07-2011, the vehicle was taken to the first opposite party as there were housing noise, front wheel heat on sides, power steering problems and air leak. The jobs that were carried out were the work of removal and installation of dual treaded valve, turbo charger replacement, exhaust brake, air cylinder and re-installation or replacing steering pump on vehicle. But the condition of the vehicle remained the same. Therefore on 05-08-2011, again the vehicle was taken to the first opposite party. The vehicle was inspected by the workers and from the detailed job description, it could be seen that they had carried out repair of adjusting valve clearance removal and re-installation of cylinder head. Even after these repairs were done, the first opposite party told the complainant that his vehicle was in a perfect condition. After service, it was again taken there on 16-08-2011 with the same complaints as stated above. Subsequently, on 23-08-2011, the vehicle broke down at Chathamangalam and the workers of the first opposite party came to the spot and carried out an onsite repair. The job carried out on that occasion was brake lining, reverting per wheel, wheel bearing and adjustment hub including removing and refitting wheels. That again did not in any manner improve the condition of the vehicle. On 17-09-2011, the vehicle had to be taken again to the first opposite party’s work shop. Again brake lining, reverting per wheel was done, though the complaint made by the complainant was shortage of mileage, liner problem, bearing shake and gear-lever knob changing. But the vehicle again broke down on 29-09-2011. The first opposite party carried out an onsite repair replacing wheel bolts on one hub which included removal out and reinstallation of one hub. The problems continued. On 15-10-2011, 01-12-2011, 05-12-2011,12-01-2012 and 04-02-2012, due to various defects, the vehicle had to be repaired by the first opposite party. However, the problems of the vehicle could not be solved. Once the vehicle was also taken by the first opposite party to their major service centre at Cherpulassery.
- Of late, when the complainant approached the first opposite party, their attitude towards him had become threatening. They threatened that if the complaint kept on coming with such complaints, he would be in trouble. This was too much for the complainant to bear. If these defects of the vehicle are manufacturing defects, the first opposite party should have informed the second opposite party of this fact and ought to have seen that the vehicle is replaced or returned the money paid. Without doing that, the first opposite party has been taking an elusive stand. It is evident even to a layman that the vehicle is having manufacturing defect. The complainant has been driving this vehicle for the last eight months. The first service for the vehicle should be after driving 19,500 Kilo meters. So far, the kilometre which the vehicle has plied is only 16,500. The offer of free service for 3 years cannot be availed by the complainant as the vehicle itself is riddled with defects. Moreover, because of the defects of the vehicle and repeated breakdowns, the complainant has suffered great loss. Once the vehicle broke down with a load of metal and consequently he had to suffer great loss. It is because of the illegal act of the opposite parties that the complainant suffered the loss. Had the opposite parties said on day one itself that the vehicle was having defect, the complainant would not have suffered any loss. The complainant is eking his livelihood, by way of self-employment, from the amount that he is getting out of driving the said vehicle. The complainant is not able to do the work now because of the defects in the said vehicle. The complainant has to pay back the loan amount. Because of the persistent problem of the vehicle nobody is entrusting work to him and hence he is finding it difficult to repay the loan. Now the condition of the vehicle is such that it is not in a position to use the vehicle profitably. The complainant has paid an amount of Rs.8,35,000/- for the purchase of the said vehicle. The complainant has spent an amount of around Rs.2,50,000/- for body-building. An amount of Rs. 1,00,000/- was the loss that he suffered while he was using the vehicle and for not using the vehicle. The complainant suffered the loss only because of defect in the vehicle. Since the opposite parties are the dealer and manufacturer, they are duty bound to compensate the complainant for the loss that he suffered. They are jointly and severally liable to compensate the complainant. Since the vehicle cannot be used profitably, the opposite parties may be directed to reimburse the entire amount of the vehicle plus the loss suffered by the complainant due to the use and non-use of the vehicle with interest. Hence the complaint to direct the opposite parties to reimburse an amount of Rs.11,85,000/- with interest.
- The opposite parties have resisted the complaint by filing written version wherein they have denied all the allegations and averments made against them in the complaint.
- According to the first opposite party, the complainant has purchased the vehicle for commercial purpose and hence he will not come within the purview of the word “complainant” as defined under the Consumer Protection Act. The complaint is liable to be dismissed for this reason alone. The allegation that the vehicle had a major defect on the date of delivery and that there was a deafening sound from the engine etc are false and hence denied. A small piece of metal of the exhaust manifold had been rattling inside the turbo charger exhaust chamber and as soon as this was noticed, the vehicle had been taken back and the defect rectified. They had completely examined the vehicle and no other damage had been noticed. But in spite of this, the turbo charger assembly itself was replaced under the warranty. Hence the vehicle had been given back to the complainant in a defect free condition and he had endorsed his satisfaction over the repair.
- The power steering unit of the vehicle also does not have any defects. The allegation to the contrary are denied. The vehicle did not have the complaint of swerving to a side when the brakes were applied. No promises were also given about the mileage of the vehicle since this is something that depends on many external factors and the engine oil consumption was also not excess. The allegation that the engine used to overheat, tyres wobbled, brake liners got stuck etc are all false allegations. The further allegation that after the service on 27-07-2011 the complaints had persisted is another falsehood from the side of the complainant for the purpose of this case. The repairs on 29-07-2011 were carried out under the warranty, as was the repair on 05-08-2011. The defects mentioned on 16-08-2011 were mileage shortage and window winding system. The defects stated to have taken place on 23-08-2011 are exaggerated ones and what was reported and rectified was engine oil leak. On 17-09-2011, routine repairs to the brake liner etc were carried out. The repairs are normally carried out as requested by the customers and it is preposterous to imagine that a service centre would carry out repairs of complaints not requested for by the customer. All the repairs carried out were for minor complaints.
- The allegation of threatening is false and hence denied. They have informed the second opposite party about the complaints and the vehicle has been continuously on road.
- The complainant, after the purchase of the vehicle reported with a sound from the engine and this was immediately rectified free of cost and the turbo charger itself was replaced to satisfy him. Using this opportunity, he started making false and frivolous complaints and in spite of the same, all the complaints were looked into and rectified and the majority of the same were done under the warranty, free of cost. The mileage of a vehicle is something that depends upon various external factors like the terrain of the road on which the vehicle is plied, the number of starts and stops made, the driving habits etc. Hence no manufacturer would be in a position to predict the mileage of a vehicle. The vehicle belonging to the complainant does not have any manufacturing defect that warrants the repayment of the cost of the vehicle or its replacement.
- Whenever the vehicle was brought for its periodical services and other minor repairs, the same were promptly attended to the satisfaction of the complainant. Hence no deficiency in service can be alleged against the first opposite party. The vehicle does not have any inherent manufacturing defects and does not require a replacement or repayment of the cost. The vehicle has also been run for a considerable distance and in fact the vehicle is being continuously overloaded by the complainant as can be evidenced from the 3 extra leaves added to the front and the 4 extra leaves on the rear sides. It is, therefore, prayed to dismiss the complaint with costs.
- In the written version filed by the opposite parties 2 to 4 jointly, it is averred that the complaint is not maintainable as the complainant is not a consumer as defined under sec 2 (1) (d) of the Consumer Protection Act, 1986. The vehicle has been used for commercial activities in order to generate profit. The vehicle supplied to the complainant was defect free and it was delivered after pre delivery inspection by the dealer. The vehicle has been purchased by way of financial assistance/hire purchase and the complainant is only the beneficiary and not the owner and hence is not a consumer and has no locus standi to file the complaint.
- All TATA 9090 Tippers are driven down from the Pune plant. It is highly unlikely that any major complaint that causes a deafening sound and something that causes the vehicle to jerk and stall would have gone unnoticed during this journey. The complaint of deafening noise was diagnosed to be a small metal piece of the exhaust manifold which had come loose and was rattling inside the turbo charger exhaust chamber. The service personnel of the first opposite party removed and checked the engine head. But there was no signs of any sort of damage to the engine. Even then the turbo charger assembly was changed and the complainant took delivery of the vehicle expressing satisfaction over the work done. The complainant reported power steering tight and it was due to low power steering oil level and hence power steering oil was topped up under warranty. No mileage warranty was given either in written or verbal form and the allegation in this regard is denied as incorrect and against facts. The complainant had never complained of high engine oil consumption or engine over heating as alleged. The vehicle is being used for transporting construction materials and overloading is quite rampant in the construction segment. This vehicle was also used for overloading as it is clearly evidenced by the addition of three leaf springs on its side for the front suspension and four leafs on each side for the rear suspension. Over loaded vehicles when driven down steep inclines without proper gear selection and use of exhaust brake will result in brake overheating leading to binding. Over loading leads to faster wear of brake linings and tyres. All the complaints raised by the complainant on 27-09-2011 were resolved under warranty. On 05-08-2011 the vehicle was reported with the complaints of mileage short and starting trouble. Mileage short is a consequence of customer abuse and overloading, for which, neither the dealer nor the company is responsible. The valve clearance setting is a simple procedure and a routine activity conducted to tune engine performance and the complainant is lying when he says that the cylinder head was removed. The cylinder head cover is not the same as the cylinder head. The vehicle reported again on 16-08-2011 with complaints of mileage short and some minor complaints on the window winder mechanism which were again attended under warranty. The complainant is again lying when he says that brake lining and rivet change, hub adjustment etc were carried out during a breakdown at Chathamangalam on 23-08-2011. The service record clearly shows that the breakdown was due to a complaint of engine oil leak which was attended to by the service personnel of the first opposite party on site. No other work was done during this breakdown. The vehicle reported to the workshop on 17-09-2011 for brake lining and rivet change which is a routine service operation and not a vehicle complaint. Wheel bearing/hub adjustments were carried out as per customer complaint. A complaint of brake liner breakage was fixed on site for the vehicle on 29-09-2011. A new set of brake linings were provided to the complainant free cost. The complainant’s statement of wheel bolt replacement and removal of hub on 29/10/2011 is incorrect and against facts as is evident from the service history. The wheel bolt breakage occurred on 15-10-2011 as evidenced in the history sheet. Wheel bolt breakage occurs due to over tightening of wheel bolts and is a usage fault rather than a manufacturing defect. This can be clearly shown by the type of failure which shows lengthening of the thread at the neck and breakage which happens due to over-tightening of the wheel bolt. The visit on 05-12-2011 was due to some minor oil leaks and other complaints which were fixed under warranty/AMC. The visit on 12-01-2012 was also for routine service jobs including brake liner change and minor fixes. The vehicle visited the workshop on 04-02-2012 again for brake liner change, mileage short and steering complaint. Brake liners were changed under AMC. Mileage complaint and steering complaint were attended to. The numbers of visits to the workshop are the consequences of the application and abuse of the vehicle.
- It is false that the only source of income of the complainant is from the vehicle in question because he owns other vehicles also and all are used for commercial purpose. It is submitted that the manufacturer sets service schedules as per Kms or time. For the model in question the service schedule is for every 20,000Kms or 1 year whichever comes early. The vehicle comes within 3 free services. The first service of the vehicle has already happened on 17-03-2011 at 19921 kms, well within 1 year. The statement that the complainant cannot make use of the free services offered by the company is hence denied as incorrect and against facts. The statement of the complainant that he is not using the vehicle cannot be accepted since he has run the vehicle for 21182 kms as on 31-03-2012. Hypothetically if he is using the vehicle for 6 days a week, for 8 months he has been using the vehicle for more than 105kms per day which is at par with other vehicles in similar tipper application (short route application). Hence his claim of not being able to use the vehicle and suffering losses is a blatant lie.
- There has been no deficiency in service or unfair trade practice on their part and hence they are not in any way liable to compensate the complainant. As there is no defect, much less any manufacturing defect in the vehicle of the complainant, he is not entitled either in law or on facts to seek refund of the price of the vehicle. With the above contentions, the opposite parties 2 to 4 also pray for dismissal of the complaint with costs.
- The points that arise for determination in this complaint are;
- Whether the complaint is maintainable?
- Whether the vehicle is having any inherent manufacturing defect?
- Whether there was any negligence, deficiency of service or unfair trade practice on the part of the opposite parties, as alleged?
- Reliefs and costs.
- Evidence consists of the oral evidence of PW 1 and Exts A1 to A7 on the side of the complainant. RW1 was examined and Ext.B1 was marked on the side of the opposite parties 2 to 4. The expert commissioner was examined as CW1 and the report filed by him was marked as Ext.C1.
- Heard. The complainant and opposite parties 2 to 4 filed brief argument notes.
- Point No.1 : The contention of the opposite parties is that the complaint is not maintainable as the complainant is not a ‘consumer’ as defined under section 2(1)(d) of the Consumer Protection Act, 1986 for the reason that he has been using the vehicle for commercial purpose in order to generate profit. They have also relied on the decision in Laxmi Engineering works Vs PSG Industrial Institute (II 1995 CPJ I (SC)) wherein it was held that if any person has obtained goods for commercial purpose with a view to using the same to carry on any activities of profit other than for self-employment of such person is excluded from the purview of the Consumer Protection Act.
- According to the definition of ‘consumer’ in section 2(1) (d) of the Consumer Protection Act, 1986, a person who buys any goods for consideration is a consumer. Admittedly, the complainant herein purchased the vehicle for consideration. As per the above definition, a person who obtains such goods for any commercial purpose is not a consumer. But there is clear pleadings and evidence in this case to the effect that the complainant has been using the vehicle bought exclusively for the purpose of eking his livelihood by driving the vehicle for transporting construction materials to the construction site etc. The explanation to section 2 (1) (d) provides that commercial purpose does not include the use by a person of goods bought by him exclusively for the purpose of earning his livelihood by means of self-employment. So the complainant is a consumer within the meaning of section 2 (1) (d) of the Act.
- Another contention of the opposite parties is that the complainant has no locus standi to file the complaint since he purchased the vehicle by way of financial assistance and would not be the owner. It was argued that the vehicle being hypothecated, the financier is the owner and beneficiary is not having any locus standi to file the complaint. But in this context, it may be noted that the word consumer includes any user of such goods when such use is made with the approval of such person. The complainant herein is the person in possession and use of the vehicle with the approval of the financier. So he is a consumer within the meaning of section 2 (1) (d) of the Act and is entitled to get all the protection the consumer is entitled to under the Act.
- The grievance of the complainant is that the vehicle sold to him was a defective one and the service rendered by the opposite parties was deficient. If the allegations are proved to be true, the same amount to unfair trade practice and deficiency of service. So the grievance of the complainant will come under sec 2 (1) (c) (g) and (r) of the Act. The complaint is perfectly maintainable before this Commission.
- Points 2 and 3: These points can be considered together for the sake of convenience. The complainant has approached this Commission alleging deficiency of the service and unfair trade practice on the part of the opposite parties. The prayer is for reimbursement of the entire amount of the vehicle plus the loss suffered by him due to the use and non-use of the vehicle.
- In order to substantiate his case, the complainant got herself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the certificate of registration, Ext A2 is the copy of the Tax invoice dated 05-08-2011 issued by the first opposite party, Ext A3 is the copy of the invoice dated 30-01-2012 issued by the first opposite party, Ext.A4 is the copy of the leaflet mentioning the salient features of TATA LPK 909 BS III Tipper, Ext A5 is the copy of the goods carriage permit, Ext A6 is the copy of the policy schedule cum certificate of insurance of the New India Assurance Company Ltd and Ext A7 is the copy of the service history of the Tipper.
- The customer support manager of M/s TATA Motors Ltd at Kozhikode was examined as RW1. RW1 has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. Ext.B1 is the computer printout of the service history of the vehicle.
- Ext. C1 is the report filed by Dr.K.K Ramachandran, Associate Professor, Department of Mechanical Engineering, Govt. Engineering College, Trissur after inspecting the vehicle on 15-03-2017. The learned expert was examined as CW1. After inspection of the vehicle, the learned expert has come to the conclusion that the vehicle, particularly with regard to engine, power steering and brake system are not resilient enough and not functionally enduring to challenge the actual operating conditions.
- The MGV- Tipper in question was purchased by the complainant from the first opposite party on 30-06-2011. It was manufactured by the second opposite party. It is in evidence that from day one onwards the vehicle began to show complaints. It is not disputed that on the date on which the vehicle was taken delivery by the complainant from the showroom a sound emanated from the engine compartment and there was brake down before the vehicle was taken from the showroom. Thereafter there were frequent problems of recurring nature and repeated replacement of several components. The service history of the vehicle (Ext.A7 and Ext.B1) reveals that several repairs were done within a short period. It is in evidence that after the mishap on the first day, certain parts of the engine were replaced and the vehicle was delivered two days after the purchase. The evidence of PW1 shows that the recurring problems such as wobbling of the tyres, brake liner problem, turbo noise, power steering problem, air leak, housing noise, front wheel getting heated, occurred. On 27-07-2011 the vehicle had to be garaged in the workshop of the first opposite party. Immediately, thereafter, the vehicle had to be taken again on 29-07-2011. The problems of the vehicle persisted and the vehicle had to be taken to the work shop on 05-08-2011, 16-08-2011, 23-08-2011, 17-09-2011, 29-11-2011 and intermittently up to 04-02-2012 within a span of 7 months from the date of purchase. It is also in evidence that once the vehicle had to be taken to the first opposite party’s major service centre at Cherpulassery, in Palakkad district.
- In this context, Ext.C1 report filed by the learned expert assumes importance. The learned expert has given a very detailed report on each and every point. The inspection was on 15-03-2017 after nearly five and half years of the purchase. According to the learned expert, at the time of inspection, the vehicle was in a running condition and the vehicle body was in moderately good condition. But in the engine compartment, the power steering hydrolic pump assembly was found in misalignment with respect to the engine drive pulley. The brake actuating mechanism was found fitted with an additional retracting spring both at the right and left sides of the vehicle. It is reported that as per the service records, the additional retracing springs were fitted by the authorised service centre on 29-07-2011 at odometer reading of 1566km approximately about one month after the date of purchase of the vehicle. Regarding engine, it is reported that considering the very low severity of operation, the frequent problem of recurring nature and the repeated replacement of critical components of the engine are clear indications of poor built quality of the engine. It is reported that there are obvious indications of poor design/built quality of the mounting assembly. The fixing of additional brake retracting springs is also an apparent indication of the poor quality of design of the vehicle. It is also reported in Ext.C1 that the problems of steering tightness, brake dragging, side pulling, wheel hub heating and frequent replacement of break liners are all interacting in nature and certainly caused as a consequence of the poor design/built quality of the vehicle. It is reported in Ext.C1 that the brake system of the vehicle is having design flaws. Test drive showed relatively high steering resistance at lower speed even without load. It is concluded by the learned expert that the vehicle particularly with regard to the engine, power steering and brake system are not resilient enough and not functionally enduring to challenge the actual operating conditions.
- As per section 2 (1) (f) of the Consumer Protection Act, 1986 ‘defect’ means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods. Ext.C1 establishes defect in the vehicle as defined in section 2 (1) (f) of the Act as there is short coming in standard which is required to be maintained. Thus Ext.C1 would prove that the MVG-Tipper of the complainant is having inherent manufacturing defect.
- The opposite parities 2 to 4 have filed objections to Ext.C1. Their contention is that any defect occurred in the vehicle due to overloading cannot be considered as a manufacturing defect. Other objections are that there was unauthorized modification in the vehicle and that no test drive was conducted by the expert commissioner and that the report can at the most be treated as the personal opinion of the expert. The learned expert, who was examined as CW1, was cross examined at length by the learned counsel for the opposite parties 2 to 4. But nothing could be brought out to discredit his version or discard Ext.C1. The objections could not be substantiated. The allegations regarding overloading and unauthorized modification of the vehicle are not substantiated by any evidence. The inspection was witnessed by the complainant and the customer service manager of the manufacturer. It is clearly stated in the report that the test drive was conducted. CW1, who prepared Ext. C1 is the Associate Professor in Mechanical Engineering in a Govt. Engineering College. There is absolutely no reason to disbelieve CW1 or discard Ext.C1.
- It may be noted that the records produced in this case would indicate that from day one onwards, the vehicle began to show complaints. Within a short span of 7 months from the date of purchase, nearly 12 times the vehicle had to be reported to the workshop for service and repairs. Out of the same, on several occasions some engine related issue was also attended. The concerns with regard to turbo charger, excessive oil consumption etc were recurring in nature and the turbo charger was replaced within one month from the date of purchase. No purchaser of a new vehicle expects this sort of mental agony and inconvenience.
- It may be noted that only opposite parties 2 to 4 contested the matter. Even though the first opposite party filed written version denying the allegations, they did not cross examine the witnesses and no evidence was also let in support of their contentions. The contesting opposite parties 2 to 4 have no direct knowledge of what has transpired in the workshop of the first opposite party.
- To sum up, we hold that the service record and Ext.C1 report of the learned expert clearly establish and prove the manufacturing defect in the vehicle. The case of the complainant that the vehicle supplied by the first opposite party and manufactured by the second opposite party is having manufacturing defects stands proved. The opposite parties have committed unfair trade practice in selling a defective vehicle to the complainant. Service rendered by opposite parties is also proved to be deficient. Unfair trade practice and deficiency of service on the part of the opposite parties stand proved. The opposite parties are jointly and severally liable. The complainant is entitled to get refund of the price of the vehicle amounting to Rs.8,35,000/-. The complainant has a case that he had to spent around Rs.2,50,000/- for body building. But nothing is produced to substantiate the same. However, the history of the repairs of the vehicle shows that the complainant was put to severe mental agony and hardship, besides monetary loss, due to the frequent failure and garaging of the vehicle for repairs. The complainant is eking out his livelihood by way of self-employment from the income derived by plying the vehicle. Due to the persistent problems, he was not in a position to use the vehicle often, whereas he had to repay the financier. The complainant has suffered the loss only because of the defects in the vehicle and deficiency of service on the part of the opposite parties and they are bound to compensate the complainant adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs.1,00,000/- would be reasonable compensation in this case. The complainant is also entitled to get Rs.8,000/- as cost of the proceedings.
- Point No.4: In the light of the finding on the above points, the complaint is disposed of as follows;
- CC.122/2012 is allowed.
- The opposite parties are hereby directed to take back the MGV- Tipper of the complainant and refund the price of the said vehicle amounting to Rs. 8,35,000/- (Rupees Eight Lakh thirty Five Thousand only) to the complainant along with interest @ 6% per annum from the date of the complaint ie, 09-03-2012 till actual payment.
- The opposite parties are directed to pay a sum of Rs. 1,00,000/- (Rupees One Lakh only) as compensation to the complainant.
- The opposite parties are directed to pay a sum of Rs. 8,000/- (Rupees Eight Thousand only) as cost of the proceedings to the complainant.
- The order shall be complied with within 30 days of the receipt of copy of this order.
Pronounced in open Commission on this, the 30thday of June, 2023. Date of Filing: 09-03-2012. Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext A1 - Copy of the certificate of registration. Ext A2 - Copy of the Tax invoice dated 05-08-2011 issued by the first opposite party. Ext A3 – Copy of the invoice dated 30-01-2012 issued by the first opposite party. Ext.A4 - Copy of the leaflet mentioning the salient features of TATA LPK 909 BS III Tipper. Ext A5 - Copy of the goods carriage permit. Ext A6 - Copy of the policy schedule cum certificate of insurance of the New India Assurance Company Ltd. Ext A7 - Copy of the service history of the Tipper. Exhibits for the Opposite Parties: Ext B1 - Computer printout of the service history of the vehicle. Commission Exhibits: Ext C1 - Report filed by Dr. K.K.Ramachandran, Associate Professor, Dept. of Mechanical Engineering., Govt. Engineering College, Thrissur. Witnesses for the Complainant : PW1 - Nasar.E (Complainant) Witnesses for the opposite parties: RW1 – Ezhilarasan.M, Customer Support Manager of M/s.Tata Motors Ltd at Kozhikode. Witnesses for the Commission : CW1 – Dr. K.K.Ramachandran, Associate Professor, Dept. of Mechanical Engineering., Govt. Engineering College, Thrissur. Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER True copy, Sd/- Assistant Registrar. | |
