BEFORE THE DISTRICT FORUM;KURNOOL
Present: Sri. K.V.H.Prasad B.A.LL.B., President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Tuesday the 16th day of October, 2007
C.C.No. 162/06
D. Siddaiah
S/o. China Imam Saheb,
R/o. Ambapuram Rangapuram Po,
Bethamcherla Mandal,
Kurnool District. … Complainant
Versus
1.M/s. The Premier Automobiles,
Represented by its Managing Director,
Old Mumbai Pune Highway, Chinchwad,
Pune – 411 019.
2.M/s. Sri Balaji Automotives,
Authorized Dealer of Premier Automobiles Limited,
Near Bus-stop, Padmavathi Colony,
Mahaboob Nagar.
3.Balaji Automotives,
International Functional Hall, N.H.7,
Hyderabad road,
Kurnool.
4.Babloo Automotives,
Represented by its Dealer cum proprietor,
Near International Functional Hall,
N.H.7, Hyderabad road, Kurnool.
A.P. … Opposite parties
This complaint coming on this day for orders in the presence of Sri.M. Sivaji Rao, Advocate, Kurnool, for complainant, and Sri.
Y. Sreenivasulu, Advocate, Kurnool opposite party 1 and opposite party No.2,3, and 4 called absent and set exparte and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.162/06
1. This case of the Complainant is filed U/S 11 and 12 of C.P.Act seeking a joint and several direction on the opposite parties to refund Rs.3,60,000/- towards the cost of the vehicle, cost of repairs, Rs. 5 lakhs towards the loss of earnings, Rs.2 lakhs as compensation for mental agony and cost of this case alleging deficiency in service of the Opposite Parties in selling a defective vehicle and not providing after sales proper service facility to the said vehicle for attending its recurring defects.
2. The brief facts of the Complaint are that mini lorry model premier road star 2500 – with engine No.3 HNLE 17360 and chasis No.XP 200168 X manufactured by Opposite Party No.1 was purchased by the Complainant, for earning his livelihood, on 9.5.2006, with a warranty of 12 months or 1 lakh kilo meters run of the vehicle and for engine 24 months warranty or 50 thousand kms run for repairs and replacement of stairs, through opposite parties 2 and 3, who are authorized dealer and sub dealer of opposite party No.1, availing finance assistance lent by Shriram Transport Financies, Kurnool, and the said vehicle started giving repeated troubles 15 days after purchase and led to loss of earnings at the rate of Rs.550/- per day on account of detention of said vehicle for repairs by opposite parties 2 and 3 for much considerable time. The vehicle of the Complainant was alleged as suffering with following defects.
1. The suspension (string) due to down of suspension leading to change in wheel alignment and tyre size.
2. Repeated trouble on account of gear box foundation.
3. Cut and detachment of bolts of the houging.
4. Wheel bearing breaking.
5. Breakage to the tyre disk rim.
6. Leakage of engine oil.
7. Vibration to the vehicle even at 10 kmph speed.
8. Difficulty in gear changing and high sound to engine.
9. Pick up problem.
10. Failure of breaks due to threading failure.
11. Cut of suspension within 5 months of the purchase and breakage of sub axel resulting in detachment of tyres.
and the opposite parties demanding Rs.15,000/- per rectification of defects . The opposite parties did not even return the users manual and warranty card. The original bills of purchase is with his firm and his financial and the repetition of defects and its non rectification was as they are manufacture in defects and its inability for rectification by opposite parties 3 and 4 .
3. In pursuance of the receipt of the notice of this forum as to this case of the Complainant, while the opposite parties 2 to 4 remained absent and there by said exparte, the Opposite Party No.1 contested the case filling written version admitting warranty conditions but denying the other complaint avernments and any of its liability to the complainants claim requiring its strict proof alleging any manufacturing defects in the vehicle or any deficiency in service on its part as the vehicles manufactured will be put to various tests of national and international standards before they are made ready for sale, and the multiple defects alleged by the Complainant were due to rash and negligent hangling of said vehicle at the defects complaints were properly attended during their free services provided for said vehicle and questioning the maintainability of the complainants case and claim and thereby the jurisdiction of the forum to entertain the claim and so seeks dismissal of the complaint with exemplary cost of Rs.50,000/-.
4. In substantiation of the contentions while the complainants side has taken reliance on documentary record in Ex.A1 to A3 besides to its sworn affidavit in reiteration of its case, the opposite parties side taken reliance on documentary record in Ex. B1 to B2 besides to sworn affidavit in reiteration of its defence.
5. Hence the point for consideration is whether the Complainant has made out the alleged defect the vehicle and deficiency of the opposite parties and there by the liability of the opposite parties to the claim of the complainant.
6. The para No.8 of the complaint takes mention of 11 defects which could not be rectified by opposite parties in spite of several servicing. Any job card pertaining to the service rendered to said vehicle defects was got into record either by the complainants side or by the opposite party side. But the sworn affidavit of the commissioner i.e., G.V.Siva Reddy – M.V Inspector, Kurnool who was appointed vide order dated 25.5.2007 in I.A 185/2007 of C.C.159/2006, observes as to actual condition of the vehicle with as many number of defects as 11 to the complainants vehicle bearing No.AP 21 x 3542 and opines those defects can not be cured in spite of replacing the defective parts even. The said observation were remain un rebutted from the opposite party side. Nor the opposite party has taken any resort to invoke the providence of Section 13 (1)(C) C.P. Act to get assessed the so call defects to the said vehicle and their any concern to the manufacturing of said vehicle and there occurrence to any of its rash and negligent hangling.
7. A consumer will purchase any goods with a hope of enjoying its real worth for which the cost was paid. If the vehicle so purchased if often giving troubles or repeating the troubles on account of their improper rectification, the consumer shall only pinch the difficulty to put on with the said vehicle and he being with any technical knowledge of said vehicle it remains irrespective for him whether the said difficulty being experienced with said vehicle is on account of any manufacturing defect or other than of that especially when the said multiple defects are being repeated and were not rectified in spite of their attending in servicing and implies the liability of the opposite party as per the decision of the Honourable National Commission in Hindustan Latex Limited Vs Central Print India Limited reported in III (2007) CPJ Pg 53 (NC) . So the onus lies heavily on the opposite party – manufacturer of the said vehicle – to prove with cogent evidence and material to the effect that the so called multiple defects and their repetition was not on account of any defect in the manufacturing of said vehicle, but on account of its any handling with negligence, rashness or non compliance of the manual instructions. The Opposite Party side except merely alleging as such did not take any pains in establishing the allegations it makes against the user of the said vehicle especially when the Ex.B1 and B2 - ARAI certificate which denotes the tests put to the bulk of vehicles released there under and not in particular to the vehicle concern to the Complainant subsequent to its sale to the Complainant, they remains of any much use for answering the present complaint alleged to the said vehicle.
8. From the decision of Honourable National Commission in Hindustan Motors Limited Vs C.D.Roy reported in 2003 (1) CPR Pg 343 (NC) what appears is that when the defects are being recurring and the examination of vehicle by expert commissioner was after two years and the commissioner could not confirm the problem of car was due to manufacturing defect, as the case was filled there within 5 to 6 months of the purchase it is not necessary to hold whether there was any manufacturing defect or not in said recurring defects. In the present case the vehicle purchase by the Complainant as started giving troubles within a short time of its purchase and there being not rectifying inspite of servicing and on the other hand the said multiple defects being repeated and this case as has been filled on 29.11.2006 i.e. within a period of 6 to 7 months from the date of purchase of 9.5.2006, being fed up with the repeated multiple said defect, the defects observed by the commission remains out of question as to the fact of whether they are manufacturing defect or otherwise especially when the opposite party (manufacturer) did not bother to invoke section 13 (1) ( C ) C.P.Act for assessing the nature of defects and there by rebut the said defect as occurred not on account of any faults in its manufacturing but on account of its improper use either with negligence or rashness in utter disregard to the manual of instructions.
9. Therefore in the above state of circumstance and material on record as it is remaining clear that the said vehicle of the complainant is not of any use to the complainant even if replacement of parts was undertaken, the Complainant is remaining entitled for replacement of his defective vehicle with a new vehicle of the same brand and model from the Opposite Party No.1. or in case of any inability to comply the supra direction the complainant is entitled from opposite party No.1 for refund of the cost paid for purchase of said vehicle.
10. As the opposite parties 2 to 4 are mere dealers of the opposite party No.1 to sell the vehicles manufactured by opposite party No.1 and there by they are any thing to do with the defects in said vehicle they can not be found fault for any deficiency in service towards the complainant in their inability to rectify them and so there appears any of their liability to the complainants claim. Consequently the case against opposite parties 2 to 4 is dismissed.
11. As the Complainant was driven by the opposite party No.1 to the forum for redressal of grievances by his indifferent conduct, the opposite party No.1 is liable to pay to the Complainant not only Rs.10,000/- as compensation for mental agony but also Rs.5,000/- as cost of this case.
12. The Opposite Party No.1 shall comply the supra stated directions within a month of the receipt of this order on return of the defective vehicle to the Opposite Party No.1. In default the supra stated award is payable by the opposite party No.1 with 9% interest per annum from the said default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced in the open bench this day 16th October, 2007.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Owners manual including warranty policy
At page No.5 to 7.
Ex.A2. Invoice of Balaji Automotives
Dated 17.05.2006 for Rs.3,60,000/-.
Ex.A3. Sale certificate form No.21.
List of exhibits marked for the opposite parties:
Ex.B1. ARAI certificate dated 01-10-2005 (3 Nos)
Ex.B3. ARAI certificate dated 22.03.2006.
Sd/- Sd/-
MEMBER PRESIDENT
Copy to:-
1. Sri. M. Sivaji Rao, Advocate, Kurnool.
2. Sri.Y. Sreenivasulu, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
