IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of November, 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 196/2018 (Filed on 24-09-2018)
Petitioner : The Treasurer
CSI Madhya Kerala Diocese
CSI Diocesan Office,
Cathedral Road, Kottayam
(Adv.George Itty)
Vs.
Opposite parties : 1)M/s. Force Motors Limited
Registered Office, Mumbai,
Pune Road, Akurdi Repted by its
Managing Director.
2) M/s. Poomkudy Force(A Division
of Poomkudy Motors Pvt.Ltd.,
Opp. Govt. Polytechnic, Nattakom
PO, Kottayam Repted by its
Managing Director.
(For Op1&2 Adv. George Cherian Kariparambil
and Adv. K. Anil Kumar Ambady)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
Complainant is the treasurer of the C.S.I. Madhya Kerala Diocese. The complainant purchased a traveller BS III VE Mini Bus (12 + D) manufactured by the first opposite party through the second opposite party /on 9-11-2016 for a price of Rs.12,60,831/-. The said vehicle was purchased for the conveyance of priests and workers under the Diocese of Madhya Kerala. The said vehicle was registered with Kottayam Road Transport office and the registration number is KL-05-AP-1048. The vehicle had run 12,000 Kms and the vehicle is within the warranty period. Within the short period of twenty months, the vehicle had faced with six breakdowns due to breaking of engine belt. When the engine belts breaks, the engine stops working, the braking system will fail, the steering system will not work, and thereby the driver will lose the control of the vehicle.
On 14-6-2018 at about 1.00am in midnight in between Moovattupuzha and Koothattukulam the vehicle faced breakdown due to breaking of engine belt and the complainant and others had waited for three more hours in the road at midnight for changing the engine belt. Therefore, the complainant is not in a position to take the vehicle for travelling. The complainant intimated the aforesaid facts to the first opposite party by letter dated 15-6-2018, but there was no response from the first opposite party. Though the complainant approached the second opposite party for rectification of defects but all the efforts made by the service engineers of the second opposite party had not resulted in curing the defect. The service personals of the second opposite party informed the complainant that the defects could not be rectified, as the same is due to the defects of the vehicle. The continuous breakage of engine belt is not due to the inferior quality of the belt used but only due to the manufacturing defect of the vehicle. It is averred in the complaint that the vehicle manufactured and sold by the first opposite party to the complainant is having manufacturing defect and the vehicle is not having the required quality and standard required to be maintained under law for the time being in force. As per the warranty terms the vehicle carries a warranty for a period of 24 months from the date of purchase against the manufacturing defects and faulty workmanship and hence the opposite parties are liable to replace the vehicle with a new one or in the alternative to refund the price of the vehicle to the complainant. The selling of a defective vehicle is an unfair trade practice and Failure to rectify the defects of the vehicle by the opposite parties amounts to deficiency in service. The complainant has suffered immense financial loss and mental agony due to the illegal acts of the opposite parties. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to replace the vehicle with a brand new one or in the alternative pay Rs.12,60,831/- to the complainant along with a compensation of Rs.50,000/- and cost of the litigation.
Upon notice opposite parties appeared before the
Commission and filed version as follows:
The complaint is not maintainable as the complainant is not a consumer within the ambit of the consumer protection act. Complainant owns huge landed properties, institutions, and employees of hundreds of workers. The properties of the complainant are under the ownership and management of Central Travancore Diocesan Trust Association; hence, complainant is outside the purview of the consumer jurisdiction. Complainant purchased the vehicle for commercial purpose and driven by paid drivers.
Complainant’s vehicle has not adhered to the warranty terms and has not done the mandatory 4th service thereby the terms of the warranty is violated and the vehicle is out of warranty. The engine belt being driver belt is a rubber component has no warranty as is replaced at the 4th service and at the 8th service.
In this case, complainant has not brought the vehicle for the 4th service. As per the service protocol, the engine fan belt was replaced on 2-3-2018 at the 8th service. The allegation that within the short period of 20 months the vehicle had faced with 6 breakdowns due to breaking of the engine belt is false. The alleged break down said to have occurred for 6 times have not been reported to the opposite parties. There is no mention of either the date, place of the alleged failure of engine belt and where the alleged defect has been rectified. The alleged breakdown said to have occurred on 14-6-2018 is not reported the opposite parties on 14-6-2018 or thereafter. If the alleged breakdown had occurred, the complainant ought to have reported the same to the opposite parties.
The vehicle is extensively used and serviced at unauthorized local workshops. The last visit at the service Centre of the opposite parties was on 4-7-2018 and thereafter, after a lapse of more than one year the vehicle is not brought to the service center of the opposite parties. By misuse of the vehicle and conduct of the complainant, he is not entitled for any warranty. The vehicle supplied to the complainant is not having any defect. The allegation that the continuous breaking of the engine belt is not due to the inferior quality of the belt but due to the manufacturing defect of the vehicle is misleading and false. There is no deficiency in service or unfair trade practice on the part of the opposite parties.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A16. Prashob M.K. who is the senior divisional manager -service of the second opposite party filed proof affidavit for the opposite parties and marked exhibits B1 to B3 from the side of the opposite parties. Expert Commission report is marked as Ext.C1.
On evaluation of complaint, version and evidence on record, we would like to consider the following points.
- Whether the complaint is maintainable or not?
- Whether the complainant had succeeded to prove manufacturing defect in the vehicle?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and costs?
Point number 1
There is no dispute on the fact that the complainant purchased a traveller BS III VE Mini Bus (12 + D) manufactured by the first opposite party through the second opposite party on 9-11-2016 for a price of Rd. 12,60,831 and the same is registered with Road Transport authorities and the registration number is KL-05-AP-1048. The first contention of the opposite parties is that the complainant is not a consumer within the ambit of the Consumer Protection Act.
According to the opposite parties complainant purchased the vehicle for commercial purpose and driven by paid drivers.
The counsel for the opposite parties relied in Laxmi Engineering Works Ltd vs PSG Industrial institute, (AIR 1995, SC 1428, II (1995) CPJ 1(SC) and Thankappan Colour lab and another vs Trasiba Electronics and others II (2000) CPJ 339. The ratio laid down in these two decisions is that to bring the complaint within the ambit of the provisions of the Act, the complainant himself must use the goods exclusively for the purpose of earning livelihood by means of self- employment.
National Consumer Disputes Redressal Commission in Crompton Greaves Limited v. Daimler Chrysler India Private Limited, 2016 SCC Online NCDRC 2121 wherein it was observed that, If a car or other goods are purchased or the services are hired or availed by a company for the personal use of its directors or employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company.
The acquisition of the goods or the hiring or availing of services, in order to bring the transaction within the purview of section 2 (1) (d) of the Consumer Protection Act, therefore, should be aimed at generating profits for the company or should otherwise be connected or interwoven with the business activities of the company. The purpose behind such acquisition should be to promote, advance or augment the business activities of the company, by the use of such goods or
services.
Hence, relying on the above-settled proposition of law, this Commission in the present matter held that complainant is a consumer under the Consumer
Protection Act, 1986 as the said vehicle was purchased for the conveyance of priests and workers under the Diocese of Madhya Kerala and the purpose behind such purchase was not to earn profits or to advance the business activities of the institutions of the diocese. Therefore, we found the point number in favour of the complainant.
Point number 2 to 4 together.
Specific case of the complainant is that the vehicle had run 12,000 Kms and within the short period of twenty months the vehicle had faced with six breakdowns due to breaking of engine belt due to manufacturing defects of the vehicle. Exhibit A8 issued by the second opposite party proves that on 4-1-2017 the second opposite party has purchased the logged fan belt for the vehicle of the complainant. It is proved by the exhibit A9 labor bill that the second opposite party had done fan belt tension adjustment and third paid service on 15-5-2017.After that the belt clip had changed by the second opposite party on 1-11-2017vide exhibit A10. Exhibit A12 is the tax invoice issued by the second opposite party to the complainant on 3-1-2018. On perusal of exhibit A12, we can see that the second opposite party has charged Rs.196/- from the complainant as price of the logged fan belt.
After that the complainant had entrusted the vehicle with second opposite party on 5-3-2018 at a mileage of 9630KMs and exhibit A13 is the tax invoice issued by second opposite party on 5-3-2018. It is proved by exhibit A13 that at that occasion also the fan belt tensioned and fan belt were changed. Exhibit A15 is the bill issued by Bharath automobiles Koothattukulam on 15-6-2018. On perusal of Exhibit A15 we can see that it is entered that engine Belt change -300 and on the top portion it is recorded as KL 05AP -1048.
In order to prove his case, the complainant filed a petition to appoint an expert commissioner to ascertain the defects of the vehicle and the same was allowed by this commission and expert commission report is marked as Exhibit C1. In C1, the expert commissioner reports that the belt breakage of the vehicle happened several times due to the level outage of A/C pulley and damaged water pump shaft. Expert commissioner further reports that without replacing water pump and A/C pulley the complaint could not be rectified. Thus, we are of the opinion that the first and second opposite parties have committed unfair trade practice by selling defective vehicle to the complainant and committed deficiency in service by not rectifying the defects in water pump and A/C pulley. It is pertinent to note that though the expert commissioner has opined that the reason for the continuious breakage of engine belt is due to the defect of the water pump and A/C pulley he did not categorically reported that the vehicle having inherent manufacturing defect which is not rectifiable. In the absence of the opinion from the expert commissioner, we cannot hold that the vehicle has inherent manufacturing defect.
Another contention of the opposite parties that the vehicle has not agreed to the warranty terms and has not done the mandatory 4th service thereby the terms of the warranty is violated and the vehicle is out of warranty. Exhibit A7 is the
warranty certificate issued by the first opposite party. On a mere reading of exhibit A7 we can see that the first opposite party has assured a warranty for 36 months or 3,00,000KMs whichever occurs earlier from the date of sale subject to the Terms and conditions for engine and rest of aggregate of traveller vehicle. On perusal of C1, report it can be seen that the expert commissioner has inspected the vehicle at a mileage of 17188Kms. Admittedly, the vehicle was delivered on 9-11-2016. Thus we are of the opinion that the continues breakage of engine belt occurred within the warranty period of the vehicle. Though the opposite parties contended that the mandatory 4th service has not been done in the specified time,
and thereby the terms of the warranty is violated the opposite parties did not produce the service record of the vehicle and the terms and conditions of the warranty to substantiate their contention. No doubt, the opposite parties are the best person to produce the same. In these circumstances, we are of the opinion that contention of the opposite parties that the vehicle was out of warranty due to non-adherence of warranty condition is not sustainable. During the course of argument learned counsel for the opposite parties relied on B3 satisfaction letter issued by the complainant to the opposite party on 29-1-22 i.e. the date on which the final inspection of the vehicle had been done by the expert commissioner. On perusal of B3, we can see that instead of replacing the water pump and A/C pulley as opinioned by the expert commissioner the opposite parties replaced only the water pump and done alley check up. The opposite parties did not replace the A/C pulley as reported by the expert commissioner to rectify the defects of the vehicle. Thus, we cannot accept the contention of the opposite parties that the complainant had taken the delivery of the vehicle on the same day after rectifying all the defects and executed Exhibit B3 to the opposite parties without any hesitation.
We already found that the opposite parties are committed unfair trade practice by selling a vehicle having defect to the complainant. The opposite parties failed to provide the warranty as promised by them and rectify the defects of the vehicle under warranty and the said act amounts to imperfection and inadequacy in service by the opposite parties which amounts to deficiency in service. A purchaser of new vehicle is not expected to run from work shop to another workshop to rectify the defects of the vehicle within the warranty period. No doubt such an incidents caused much mental agony and hardship to the owner of the vehicle and he is entitled to be compensated for the same. Considering the nature and circumstances of the case, we allow the complaint and pass the following order.
- We hereby direct the opposite parties to rectify the defects of the vehicle bearing Rg.no. KL 05AP -1048 by carrying out the works and replacing the parts which are stated in exhibt C1 expert commissioner report.
- We hereby direct the opposite parties to pay Rs.30,000/- to the complainant as compensation for the unfair trade practice and deficiency in service committed by the opposite parties.
- We hereby direct the opposite parties to pay Rs.5,000/- as the cost of this litigation.
Opposite parties, 1 and 2 are jointly and severely liable to comply the order within 30 days of the receipt of copy of Order, failing which the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of invoice dtd.01-11-16 issued by 2nd opposite party
A2 – Copy of vehicle release order No.KCB0079 dtd.01-11-16
A3 – Copy of certificate of registration KL-05-AP-1048
A4 – Copy of letter dtd.15-06-18 by complainant to opposite party
A5 – Lawyers notice dtd.18-07-2018
A6 series – postal receipts (2nos.)
A7 – Copy of warranty certification
A8 – Copy of bill dtd.05-01-17
A9 – Copy of bill dtd.15-15-17 by opposite party
A10- Copy of tax invoice dtd.01-01-17 by opposite party
A11 –Copy of estimate dtd.08-12-17
A12- Copy of tax invoice dtd.03-01-18 issued by opposite party
A13- Copy of tax invoice dtd.05-03-18 by opposite party
A14 – Copy of tax invoice dtd.05-03-18 issued by opposite party
A15- Copy of bill dtd.15-06-18 by Bharat Automobiles
A16- Copy of tax invoice No.B-3920 dtd.20-11-18
Exhibits marked from the side of opposite party
B1 – Copy of tax invoice dtd.05-03-22 by Poomkudy Motors
B2 – Tax invoice no.32AAFAFCP7351KIZA dtd.05-03-22
B3 – Satisfaction certificate
Commission Report
C1 – Inspection report by Tisson George Michael
By Order
Sd/-
Assistant Registrar
