Andhra Pradesh

East Godwari-II at Rajahmundry

CC/74/2015

Pippala Musalayya - Complainant(s)

Versus

M/s. Sri Gopal Automotive Ltd. Rep. by its Branch Manage - Opp.Party(s)

D.V.V.Trinadh

08 Jul 2016

ORDER

                                                                                               Date of filing:   12.10.2015

                                                                                                Date of Order: 08.07.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

         PRESENT: Smt H.V. Ramana, B.Com., L.L.M., … PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., … B.L., MEMBER          

    

                     Friday, the 8^th day of July, 2016

 

 

C.C.No.74 /2015

Between:-

 

 

Pippala Musalayya, S/o. Lakshmipathy, Hindu,

Aged 56 years, Cultivation, r/o. D.No.3-86,

Main Road, Vundeswarapuram, Seethanagaram,

E.G. District.                                                                                           …        Complainant

 

                                    And

 

M/s. Sri Gopal Automotive Ltd., Rep. by its

Branch Manager, Kakinada and having its Branch

Office at N.H.5 Road, near O.N.G.C. Base Complex,

Padmavathinagar, Rajahmundry.                                                         …        Opposite party

 

 

            This case coming on 28.06.2016 for final hearing before this Forum in the presence of Sri D.V.V. Trinadh and Sri K. Bharani Kumar, Advocates for the complainant and Sri B. Radha Krishna, Advocate for the opposite party, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Sri A. Madhusudhana Rao, Member] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite party to replace new tractor tyres to the complainant’s tractor or to return cash of new Tractor four tyres value as on date of order of award passed by the Hon’ble Forum; to pay compensation of Rs.2,00,000/- for physical and mental agony roaming around of office of the opposite party by the complainant and for sustaining heavy loss due to non functioning of tractor and for incurring heavy expenditure in engaging hired tractor for the field work and award costs.

2.         The case of the complainant is that he purchased a Tractor in the name and style of Mahindra Rise with Serial No.ZKBC00281, 575D 1 PBO 1 B on 31.8.2013 from the opposite party by paying sale price of Rs.6,02,940/- and obtained delivery of vehicle and ever since from the date of delivery of the vehicle, the complainant received troubles due to supply of defective crack tyres to the tractor by the opposite party and inspite of complaint given by the complainant, the opposite party’s staff attended to complainant’s complaint to rectify the defect of the tractor and endorsed the statement on outdoor inspection slip, more particularly on 17.12.2014 and further did not rectify the defects of the tractor. The complainant submits that as per terms and conditions from the date of manufacturing of the tyres of tractor is having three years period of 50% unconditional warranty and the said fact intimation to the complainant at the time of purchasing of the tractor and also at the time of making inspection by the opposite party’s officials, but inspite of  having knowledge, the opposite party did not rectify the defect of the tractor in supplying cracks of tyres to the tractor and due to the said cracks of tyres to the tractors, the complainant unable to do activities of cultivation to the said tractor and that the complainant received sufferance of physical and mental agony due to non functioning of the tractor and the complainant has to attend the field work on the hired tractor and that the complainant has to incur heavy expenditure and also sustained loss to the work due to more expenditure. On 22.4.2015, the complainant got issued legal notice to the opposite party and the opposite party received the said notice and got issued reply on 24.5.2015 with false allegations. Hence, the complaint.

3.         The opposite party filed its written version and denied all the allegations made by the complainant and the complaint is not maintainable either under law or on facts.  This opposite party submits that the tractor is not working condition and due to the same he is engaging hired tractor etc. In fact the history of the maintenance and service of the tractor clearly reveals that the complainant is using the tractor with utmost satisfaction and he never made complaint prior to 6.10.2014 and he made complaint with regard to tyres on 6.10.2014 when the vehicle brought for servicing. Immediately staff of complainant responded and communicated the same to the Ceat Company personal since the tyres are from Ceat Company and which is giving warranty as per the warranty agreement. The said warranty agreement was also supplied to the complainant at the time of purchase of the tractor which clearly reveals that the Ceat company is the responsible for warranty of tyres. It is clearly informed even by the time of purchase of the tractor by the complainant, the other proprietary parts supplied by other makers such as batteries, tyres, starter motor, alternator etc., the warranty will be covered by the respective maker of the particular parts. Without adding the Ceat company, the complaint is not maintainable. Basing on the complaint from the complainant dt.6.10.2014, on 17.12.2014 the inspection was done by the Ceat company personnel who visited complainant’s house and inspected the vehicle and the claim of complainant was rejected as it is not due to manufacturing defect. Upon intimation made by the opposite party to the Ceat company, companies’ inspection staff came and inspected the tyres and found that the alleged complaint of external cuts are due to poor maintenance and without taking proper care and caution while driving the vehicle and it is not due to manufacturing defect. The said fact was intimated by the company on 7.3.2015 once again through e-mail to the opposite party at Kakinada and the said fact immediately informed to the complainant by the opposite party at Kakinada. Therefore from the process of making complaint and forwarding the same by opposite party at Kakinada to the Ceat Tyre Company and communicating the result of the complaint to the complainant, it is very clear there is neither negligence nor inaction on opposite party at Kakinada’s part and as the alleged complaint is due to complainant’s mistake and due to poor maintenance only. Further, if at all the complainant wants to dispute the verdict given by the Ceat company that it is not a manufacturing defect, he has to approach the Ceat company disputing the same as either opposite party at Kakinada or Mahindra Company is not giving warranty to the tyres and there is no privety of contract in between the complainant and opposite party with regard to tyres which were manufactured by the Ceat company and the said fact was already intimated to the complainant even at the time of purchase. Further at the time of purchase of the vehicle as per the credit invoice dt.24.8.2013 both parties agreed to invoke the jurisdiction of Kakinada courts only and therefore also the complaint is not maintainable before the Hon’ble Forum. Further after knowing and after thoroughly satisfying with the explanation given by the Ceat Company staff, the complainant again brought the tractor for servicing on 14.3.2015 and on that day he never made any complaint with regard to the tyres and got his vehicle serviced and signed on the job card that opposite party’s services are up to his satisfaction. Hence, there is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed with costs.

4.         The proof affidavit filed by the complainant and Exs.A1 to A6 have been marked for the complainant. The proof affidavit filed by the opposite party and Exs.B1 to B7 have been marked for the opposite party.

5.         Heard both sides. The opposite party filed written arguments.  

6.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite party?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

7.  POINT Nos.1 & 2:  On perusal of the record, we observed that the complainant herein purchased Mahindra Rise Tractor vide Serial No.ZKBC00281, 575D 1 PBO 1 B on 31.8.2013 for Rs.6,02,940/- from M/s. Sri Gopal Automative Limited, Kakinada having its branch office at Rajahmundry by obtaining finance of Rs.3,50,000/- from ICICI Bank Limited, Rajahmundry under Invoice No.MM/10/105/13-14 dt.31.8.2013 vide Ex.A1. Ex.A2 contained the insurance package policy obtained by the complainant from Oriental Insurance for a period from 22.1.2015 to 21.1.2016 along with Nagriksuraksha Individual policy. The complainant alleged that with a hope that the tractor will be useful for cultivation activities of the complainant became useless as the said tractor gave trouble ever since from the date of delivery and the opposite party deputed their technicians to attend on complaints to rectify defects in the tractor. The complainant further alleged that as per the terms and conditions, the tyres fixed to the tractor at the time of delivery to the complainant by the opposite party is having three years period of 50% unconditional warranty from the date of manufacturing of the said tyres, but the opposite party did not pay any attention towards rectification of defect i.e. cracks in the tyres vide Ex.A3 = B6 outdoor inspection slip dated 17.12.2014 by the Service Technician. The complainant further alleged that due to non functioning of the said tractor with repairs and cracks in four tyres, the complainant used to hire some other tractor and lack of income on own tractor caused non-payment of bank installments towards finance. As there was no response from the opposite party inspite of several representations made by the complainant with regard to defective and cracked tyres to the tractor at the time of delivery, the complainant got issued legal notice dt.22.4.2015 vide Ex.A4 and the opposite party branch at Rajahmundry returned the said cover by stating that the office is at Kakinada under Ex.A5. The Kakinada branch office issued reply dt.24.5.2015 vide Ex.A6 with false averments like poor maintenance.          

            We further observed that as per the documents filed by the opposite party, Sri Gopal Automotive Limited, Kakinada, the complainant after purchase of the tractor in dispute on 31.8.2013 bearing No.AP05 CQ 2494 for the first time approached the opposite party at Kakinada on 1.9.2014 vide job card No.052 replaced LH Mudguard under warranty and F/W inner bearing and hub-o/s replaced under warranty as per Ex.B1. The opposite party was informed about absorbed cracks in rear tyres and front tyres by the complainant on 6.10.2014 vide job card No.F08 and photos of the tyres were sent to Head office as per job card under Ex.B2. But, as per Ex.A3 = B6 outdoor inspection slip, the CEAT company deputed their technician to inspect the cracked tyres on 17.12.2014 after two months of complaint received from the opposite party. Further, the complainant approached the opposite party at Kakinada for repairs vide job card No.105 dt.14.3.2015 for gear oil changing, main drive shaft oil leakage and F/W checking under Ex.B3, on 22.8.2015 vide job card No.035, L/H rear axle oil leakage, and F/W checking under Ex.B4 and on 23.5.2015 vide job card No.010 dt.23.5.2015 Fly wheel ring gear complaint vide Ex.B5. We observed that the opposite party Gopal Automotive Limited, Kakinada rendered the above services as the tractor was under warranty as noted down in all the job cards and charged some amounts for non covered jobs.

            The opposite party filed its version and admitted the fact that the complainant purchased tractor Mahindra Rise with Serial No.ZKBC00281, 575 DIPB018 and the vehicle was delivered to the complainant after receipt of the cost of the tractor. The opposite party contended that the complainant with a view to create cause of action to invoke the jurisdiction of this Forum made this opposite party without any cause of action. But, on observation, we found that as per Ex.A3 = Ex.B6 outdoor inspection slip issued by the Service Technician of CEAT Limited dated 17.12.2014, the dealer’s name was mentioned as Gopal Automotive Limited, NH-5 Road, near ONGC Base Complex, Rajahmundry and the said tractor of the complainant was inspected at Seethanagaram and found cracks in the four Ayushman tyres and the PR 12 tyres NSD (Non Skid Depth) is 29.5 mm and 31.25 mm, whereas the other two tyres NSD is recorded as 13 mm and 13 mm and even the dealer signature was also obtained along with the customer signature by the service technician and so, basing on the inspection report, cause of action arise at Rajahmundry jurisdiction. Further, it is evident that the opposite party Rajahmundry branch got the notice returned as there is no Branch office at Rajahmundry, but only at Kakinada. But, as per the outdoor inspection slip, there is a dealer in Door No.64-1-3, NH-5 Road, Near ONGC Base Complex, Rajahmundry and the above notice under Ex.A4 is also issued to the same address, but returned unserved. However, the branch office of the opposite party, Rajahmundry replied to the legal notice dt.22.4.2015 issued by the complainant from Kakinada. The opposite party in reply notice contended that the fact of cracks in tyres for the first time brought to the notice of the opposite party on 6.10.2014 during service period and the same was informed to the CEAT company and the personnel of CEAT company inspected the tyres at complainant’s residence and rejected the claim as it is not due to manufacturing defect and it is because of poor maintenance. Further, the opposite party averred that on 7.3.2015, the CEAT Company through Email that the fact was informed to the complainant, but there is no documentary evidence filed in this regard by the opposite party. It is further observed that the Mahindra Company is not given warranty for the tyres manufactured by CEAT Company and so, the CEAT Company is the necessary and proper party for this complaint.

            It is observed that the opposite party on one hand rejecting that the claim of the complainant with regard to cracks in tyres of the tractor as they have no liability for the same and on the other hand contending that the cracks in the tyres are occurred due to poor maintenance by the complainant, without any specific reasons assigned for the cracks in tyres mentioned by the technician deputed by the CEAT company in the inspection report dt.17.12.2014. The technician who inspected the tyres specifically mentioned that the said tyres in dispute was covered under warranty as per the company norms in Ex.B6 and even on the reverse of report vide Ex.A3, the technician noted down that the tyres having 3 years, 50% wear unconditional warranty.  So, it is evident that the tyres were under unconditional warranty at the time of inspection of cracks as the tractor was purchased with tyres on 31.8.2013 and by17.12.2014, the tyres were only 16 months old and only 973.7 KMs were covered, whereas the warranty was for 3 years. In those circumstances, no laboratory reports or expert opinion in this regard required. Further, we observed that as per Exs.B1 to B6 job cards filed by the opposite party, the tyre pressure in all the tyres recorded and not found abnormal difference in the required pressure and road test was also done on all the occasions. Further, it is observed that in the entire job cards, the opposite party recorded the tractor maintenance is poor and we are in the opinion that it is with regard to the mechanical defects and not with regard to tyres maintenance. There is no mention either in invoice issued by the opposite party at the time of purchase of the tractor with regard to the four tyres or in the outdoor inspection slip. Further, as per Ex.B7 warranty details vide Item No.5, we observed that only the manufacturer of the concerned parts like tyres, tubes, batteries, electrical and injection accessories are warranted by the respective manufacturer under the terms and conditions, as per Item No.1, the first purchaser (customer) gets warranty for the new products for two years or 2000 hours whichever is earlier from the date of delivery with certain exceptions for replacement or repair by the dealer.

            As per Section 2(1)(j) of the Consumer Protection Act, 1986 (Amended in 2002)     “the manufacturer means a person who –

1. Makes or manufactures any goods or part thereof or
2. Does  not make or manufacture any goods, but assembles parts thereof made or

       manufactured by others or

3. Puts or causes to be put his own mark on any goods made or manufactured by any 

       other manufacturer.

      As per the Amendment Act 2002, the definition now covers any assembler whether claims the said product as manufactured by them or not. Even if they claimed to be just assembler, they are manufacturers for the purpose of this Act. 

      It is common knowledge that various parts of some products are manufactured by different manufacturers and final product is sold by one seller (dealer). The definition of manufacturer covers all the players involved in manufacture of goods till they are brought before consumers. So, the consumer is enabled to proceed against any one of them by making the definition wide enough for the manifested defects and the present complaint will not be defeated on the ground of mis-joinder or non-joinder of proper and necessary party. The present opposite party, who is the dealer of the said Mahindra Rise Tractor sold to the purchaser (complainant) with CEAT Ayushman Tyres assembled to the said tractor from their showroom may be with a tie-up to wear the CEAT tyres to the tractors sell by them to the customers and there will not be any direct access or direct agreement with the CEAT company by the end purchaser like the present complainant. Under those circumstances, the onerous responsibility of replacement or refund of amount towards the damaged tyres rested with the opposite party as they sold the tractor to the complainant as a product, assembled in their showroom or at their head office.

It is observed that whenever the complainant pointed out the defects in the tractor purchased by him from the opposite party, the opposite party used to rectify the defects by their technicians at their workshop or at least take steps to sort out the problem faced by its customers, but the opposite party did not pay any attention towards the cracks in tyres of the tractor sold by them, though reported by the complainant on 6.10.2014 itself and it is evident that they simply forwarded the information to the CEAT company and the technician made an inspection after 2 months and 10 days from the date of report i.e. on 17.12.2014 as per Ex.A3 and Ex.B6. Further, the said technician failed to note any reasons for such cracks, but unconditional warranty of 50% warranty is applicable as the tyres were under unconditional warranty for three years from the date of purchase. So, the opposite party dealer is deficient in service with regard to tyres as they are responsible for redressal of complainant’s grievance as the opposite party only had the direct access or agreement with CEAT company being the suppliers of tyres to the said tractor of the complainant. The opposite party cannot escape from their responsibility as they only sold as an end product from their showroom as a dealer to the complainant. Further, the opposite party in their warranty card issued to the complainant at the time of sale of tractor promised that the warranty issued by the assembled product manufacturers will be applicable and under those circumstances, it is the opposite party to act on behalf of the complainant otherwise it amounts unfair trade practice.

    The opposite party relied on the following judgments in (1) M/s. Apollo Tyres Ltd., Vs. M/s. Virk International Trading Company & another in First Appeal No.233/2011 of SCDRC, Uttarkhand and (2) Narendar Vs. International Tractors Ltd., CPJ 2004 (1) 538. However, the above decisions relied by the opposite party are not applicable to the facts and circumstances of the present case on hand.

    With the discussion held supra and under the facts and circumstances of the case, we are in the considered view that the complainant is entitled for 50% of unconditional warranty as per the warranty issued by the CEAT Tyre Company and as per the discussion held above, the opposite party herein is responsible to redress the grievance of the present complainant being the seller of the end product i.e. Mahindra Rise Tractor. As the grievance of the complainant with regard to the tyres of his tractor not redressed and kept pending from 06.10.2014 and more particularly after inspection on 17.12.2014.  So, much time was consumed and by this time, the said tyres may be further deteriorated and the complainant suffered to some extent and should be compensated for the same.                     

8.   POINT No.3:  In the result, the complaint is allowed in part, directing the opposite party to replace the four CEAT Tyres of the complainant Tractor on charging 50% of amount at the rate of 2014 Tyre prices or in the alternative to refund the amount of 50% of total amount for four Tyres i.e. front and rear tyres as per the rates during the year 2014 to the complainant. The opposite party is further directed to pay Rs.10,000/- towards compensation and pay Rs.2,000/- towards costs of this complaint to the complainant. Time for compliance is two months from the date of this order.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the 8^th day of July, 2016.

    

                      Sd/-                                                                                     Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

         

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTY: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

 

Ex.A1    dt/01.09.2013    Credit Invoice receipt issued by the opposite party to the

                                         complainant.

Ex.A2    dt/21.01.2015    Insurance policy issued by the Oriental Insurance Co. Ltd., to the

                      complainant.

Ex.A3    dt/17.12.2014    Outdoor Inspection slip issued by the opposite party.

Ex.A4    dt/22.04.2015    Office copy of legal notice along with postal receipts got issued by

                                        the complainant.

Ex.A5    dt/30.04.2015    Returned cover with ack. due.

Ex.A6    dt/24.05.2015    Reply notice issued by the opposite party to the complainant’s

                       advocate.

 

FOR OPPOSITE PARTY:-          

 

Ex.B1    dt/01.09.2014    Job Card with regard to the servicing of subject vehicle tractor.

Ex.B2    dt/06.10.2014    Job Card with regard to the servicing of subject vehicle tractor.

Ex.B3    dt/14.03.2015    Job Card with regard to the servicing of subject vehicle tractor.

Ex.B4    dt/22.08.2015    Job Card with regard to the servicing of subject vehicle tractor.

Ex.B5    dt/23.05.2015    Job Card with regard to the servicing of subject vehicle tractor.

Ex.B6    dt/17.12.2014    Outdoor Inspection Slip.

Ex.B7    dt/                     Copy of Manufacturer warranty conditions.

 

                   Sd/-                                                                                       Sd/-

              MEMBER                                                                              PRESIDENT(FAC)