District Consumer Disputes Redressal Forum

Civil Station, Palakkad – 678 001, Kerala

Dated this the 30^th day of December, 2010

Present: Smt.Seena.H, President

            Smt.Preetha.G.Nair, Member

            Smt.Bhanumathi.A.K, Member                                 Date of filing: 21/01/2009

CC. No.13/2009

1. Dive.K.R

    S/o.Ramakrishnan

    Kulathur House

    Keralasseri Village

    Palakkad Taluk

    Palakkad.

2. A.Anilkumar

    S/o.Sankaran Nair

    “Bindu Nivas”

    Keralasseri Village

    Palakkad Taluk

    Palakkad.

3. Ramesh

    S/o.Achuthan Nair

    “Kariyakunnathu House”

    Keralasseri Village

    Palakkad Taluk

    Palakkad.

4. Abdul Kabeer

   S/o.Veernakutty

   “Thazhathe Veedu”

   Thadukkasseri

    Keralasseri Village

    Palakkad Taluk

    Palakkad.

5. Musthafa

   S/o.Muhammed

   “Korakunnu House”

    Keralasseri Village

    Palakkad Taluk

    Palakkad.                                                      -                        Complainants                   

(By Adv.V.K.Venugopalan for all complainants)

Vs

1. M/s.Force Motors Ltd.

   (A Firodia Enterprises)

   Mumbai – Pune Road,

   Akurdi, Pune – 411035.

   (By Adv.E.Ramachandran)

2. M/s.Anugraha Automobiles

   14/724, Coimbatore Road

   Kalmandapam, Palakkad – 1.                   -                        Opposite parties

   (By Adv.K.A.Stanley James)

O R D E R

          By Smt.PREETHA.G.NAIR, MEMBER

          The complainants are the RC owners of vehicles, Minidor autorikshaw manufactured by the 1^st opposite party and distributed by the 2^nd opposite party.  Each vehicles cost of Rs.1,68,000/- on road.  The 1^st complainant is the RC owner of vehicle minidor autorikshaw  bearing registration No.KL-9 V3052 engine No.D38005842 chassis No.T15002147E07 purchased on 2/07/2007.  The 2^nd complainant is the RC owner of vehicle minidor autorikshaw  bearing registration No.KL-9 U9031 engine No.D38004782 chassis No.T15001428A07  purchased on 21/2/07.   The 3^rd complainant is the RC owner of minidor autorickshaw bearing registration No.KL-9 V3945 engine D38006083 chassis No.T15002343G07 purchased on 6/8/07.  The 4^th complainant is the RC owner of minidor autorickshaw bearing registration No.KL-9 V5743, engine No.D38006316 chassis No.T15002565H07 purchased on 27/9/2007.  The 5^th complainant is the RC owner of minidor autorickshaw bearing registration No.KL-9 V6068 Engine No.D38006189 Chassis No.T15002375G07 purchased on 11/10/2007.

          The complainants have approached the 2^nd opposite party with various defects in the engine of the vehicles which could not be rectified despite repeated removal of engine and the accessories.  Even during the warranty period the vehicles become constantly unserviceable resulting in huge loss to the complainants.  The 2^nd opposite party had promised a mileage of 35 k.m/per liter.  But the vehicles never crossed 18 k.m/per liter.  The major defects noted in the engines are heavy oil consumption and leakage.  The 2^nd opposite party attempted to rectify the defects by removing almost all the vital and valuable parts of the engine by dismantling it, but could not succeed.  The vehicle had been with 2^nd opposite party for rectification of the defects almost all the time.  The vehicles prices are very high compared to the very same category of other makes.  The complainants are unemployed youths and the sale was canvassed through the State Bank of India, Keralasseri Branch.  The complainants purchased the vehicles from the 2^nd opposite party to pay minimum of Rs.25,000/- only and the balance was agreed to be paid by the bank as loan.  The 2^nd opposite party had promised that the vehicles are road worthy and any repair will be attended by the company at their cost denying the warranty period.  The opposite parties failed to keep up their promises.  The Manager of 2^nd opposite party admitted that the trouble shooting reveals inherent manufacturing defects on the engine.  The 1^st opposite party is not co-operative  to rectify the defects.  Because of the manufacturing defects the opposite parties have not made further sale of the vehicles.  So the complainants sent lawyer notice dated 21/08/2008 to the opposite parties.  The 1^st opposite party did not send reply.  The 2^nd opposite party replied stating that they are only carrying out the instructions of their principal.  The acts of opposite parties amounts to deficiency in service.  Hence the complainants prayed for an order:

1. The opposite parties to take back the vehicles and return the prices of the vehicles Rs.1,60,000/- each, clearing the bank loans availed by the complainants or

2. The opposite parties to make the vehicles road worthy by rectifying the defects within a specified period and granting warranty for a further period of one year.

3. Pay the cost of the proceedings.

          Opposite parties filed version stating the following contentions.  1^st opposite party stated that the 2^nd opposite party was authorized dealer of 1^st opposite party and the relationship between them was on a principal to principal basis.  The dealers are independent entities and they manage the sale and after sale services.  1^st opposite party submitted that 2^nd opposite party has terminated the dealership vide resignation dated 22/01/2009.  1^st opposite party is neither aware of the subsequent transaction nor responsible for any deficiency in service on the part of dealers as expressly stipulated in dealer’s appointment letter.  Hence there is no privity of contract between the customers and 1^st opposite party.  The 1^st opposite party stated that the vehicles when sold to 2^nd opposite party were in good condition without having any manufacturing defect.  Further 1^st opposite party submitted that problems and complaints as alleged due to several other reasons beyond the control of any manufacturer or dealer.  Moreover as per the record available with 1^st opposite party the vehicles of 1^st complainant has clocked 15628 kms at 6^th services on 28/06/2008, the vehicle of the 2^nd complainant has clocked30216 kms at the 6^th service on 20/8/2008, the vehicle of the 3^rd complainant has clocked 35000 kms at the 6^th service on 2/8/2008, the vehicle of the 5^th complainant has clocked 14282 kms at 4^th service on 10/6/2008.  Thus the vehicles of all the complainants are having progressive kilometer record and hence those vehicles are running in good road in road worthy conditions.  So the vehicles are not having any manufacturing defects.  Also from the record the 5^th complainant has not availed all the mandatory free services, he has availed only 1^st, 2^nd and 4^th free services.  The 1^st opposite party stated that the warranty period for minidor vehicle is defined as 36000 kms or 360 days from the date of sale, whichever occurs earlier subject to the terms and conditions.  But the complainants have filed the complaints after the expiry of warranty period.  1^st opposite party has not received any notice from the complainants.  The 1^st opposite party stated that warranty is limited for only repairing and replacement of the defective parts in genuine cases and the entire vehicle is never required to be replaced during the warranty period.  Hence 1^st opposite party prays that dismiss the complaint with cost.

          The 2^nd opposite party admitted that the complainants have purchased minidor autorickshaw from the 2^nd opposite party which is manufactured by 1^st opposite party.  The 2^nd opposite party denied that the complainants have approached the 2^nd opposite party with various defects in the engine of the vehicles.  The 2^nd opposite party had not promised a mileage of 35 km/liter of diesel.  After sale of vehicle the 2^nd opposite party is doing service for vehicles as per the rules and regulations laid down by 1^st opposite party.  Terms and conditions of warranty are detailed in the service coupon book handed over to complainants at the time of handing over the vehicle.  The complainants have purchased the vehicle in various months in the year 2007, so far they have not made any complaint about the performance of vehicle.  The complainants have allowed abuse of vehicle by over speeding, over loading, rash driving, rough breaking and run the vehicle without engine oil.  The complainants have never rendered general lubrication service for vehicle every month or every 3000 kms as per the terms of warranty.  The 2^nd opposite party is not liable to pay anything towards compensation to complainants.  Therefore 2^nd opposite party prayed that dismiss the complaint with cost.

          Complainants and opposite parties filed affidavits and documents.  Exts.A1 to A32 marked on the side of complainants.  Ext.B1 and B2 marked with subject to proof on the side of opposite parties.  One witness was examined.

          Issues to be considered are;

1. Whether there is any deficiency in service and unfair trade practice on the part of opposite parties?

2. If so, what is the relief and cost entitled to the complainants?

          Issues 1 & 2:

          We perused relevant documents on record.  According to the service coupon books the complainants  purchased the vehicle in the year 2007.   The complainants stated that the major defects in the engines developed in all the vehicles within the period of warranty.  Admittedly the complainants purchased the vehicles from the 2^nd opposite party and 1^st opposite party is the manufacturer.  Ext.A3 to A24 are the bills for purchasing the spare parts to repair the vehicles.  Ext.A3, A4, A5, A6, A10, A13, A18, A21 and A23 are the bills issued by the 2^nd opposite party.  But the 2^nd opposite party has not raised any objection in marking of the documents.  The complainants stated that all the vehicles are repaired and rectified the defects within the warranty period.   One witness, Sales in charge was examined on the side of complainants.  He stated that the complainants are unemployed drivers.  The complainants stated that they have utilized their vehicles for eking out their livelihood.  At the time of cross examination of sales in charge deposed that he had availed the loan from State Bank of India, Keralasseri Branch.  According to Ext.A32 State Bank of India has the vehicle financing tie up with 1^st opposite party.  Also he stated that the repairs of all vehicles are stated in the Job Register and vehicle history card.  Also the complainants filed IA 346/2009 to direct the 1^st opposite party to produce the circular advance 196 as the tie up agreement and the 2^nd opposite party to produce the vehicle history books in respect of all the disputed vehicles.  IA was allowed on 8/12/2009.  On 19/4/2010 the 1^st opposite party filed affidavit stating that document call for cannot be found out.  2^nd opposite party has not produced documents as per order in IA.  Both parties have not produced expert opinion regarding the manufacturing defects of the vehicles.  The complainants in their affidavits stated that they are ready to produce the vehicles before      any technical team to assess its quality and road worthiness.  But the opposite parties have not ready to inspect the manufacturing defect of the vehicles.  The opposite parties have not cross examined the complainants to explain the defects occurred in the vehicles.  The 1^st opposite party stated that they are only manufacturers and the problems and complaints as alleged can be due to several other reasons beyond the control of manufacturer or dealer.  No evidence was produced by the 1^st opposite party to prove the vehicles are not run in good road and carrying heavy loads.  According to Ext.B2 dtd.22/1/09 2^nd opposite party stated that they cannot continue dealership in Palakkad to the 1^st opposite party.  The opposite parties have not stated the reasons for termination of dealership.  The complainants stated that the 2^nd opposite party has not further sold this type of vehicles due to the manufacturing defects.

          The complainants stated that they purchased the vehicles for Rs.1,60,000/- each in the year 2007.  Further complainants submitted that the Manager of the 2^nd opposite party admitted that the trouble shooting reveals inherent manufacturing defects on the engine, but could not be corrected or rectified as the 1^st opposite party is not co-operative.  No contrary evidence was produced by the opposite parties.  The complainants are unable to repay the installments due to the bank.  No evidence was produced by the complainants to show loan installments was due in the bank.  But the complainants stated that the vehicles are defects and could not be run economically.  According to the bills  major parts of the vehicles were replaced within the warranty period.  It is to be noted that no vehicle history has been produced by the opposite parties to substantiate that the defects alleged did not occur within the warranty period.  According to the service coupon books marked as Ext.A25, A26, A27, A28 and A31 the vehicles had been carried out free services.  No evidence has been produced by the opposite parties to show that the free services had not been carried out in time by the complainants.  Both parties have not produced the price list of the vehicles.  The complainants have purchased the vehicles in the year 2007.

          In the above discussion we hold the view that there is unfair trade practice and deficiency in service on the part of opposite parties.  Hence the complaint allowed. 

          But the complainants have not produced evidence to show the present condition of the vehicles.  Hence we considered the half of the original price of the vehicle can be ordered towards compensation for each complainants.

          We direct the opposite parties jointly and severally liable to pay the complainants each Rs.80,000/- (Rupees Eighty thousand only) as compensation for mental agony and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.  Order to be complied within one month from the date of receipt of the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.

          Pronounced in the open court on this the 30^th day of December, 2010

       Smt.Seena.H,

                                                                                                President

                                                                                                                                                                                                                                 Smt.Preetha.G.Nair,

                                                                                      Member

                  Smt.Bhanumathi.A.K

                                                                                                 Member

Appendix

Witnesses examined on the side of complainant

Witnesses examined on the side of opposite parties

PW1 - Sabarish

Exhibits marked on the side of complainant

Ext.A1 (Series) – Copy of lawyer notice sent on behalf of complainants to opposite parties

Ext.A2 – Letter dtd.10/10/08

Ext.A3 – Bill No.126 dt.2/6/08

Ext.A4 - Bill No.190 dt.2/6/08

Ext.A5 - Bill No.189 dt.2/6/08

Ext.A6 – Invoice No.420 dt.10/06/08

Ext.A7 – Tax invoice dtd.8/2/08

Ext.A8 – Estimate for Rs.620/-

Ext.A9 - Estimate for Rs.1,361/-

Ext.A10 - Invoice No.373 dt.2/06/08

Ext.A11 – Estimate for Rs.120/-

Ext.A12 - Estimate for Rs.1,134/-

Ext.A13 - Invoice No.1070 dt.4/11/08

Ext.A14 – Receipt for Rs.1,015/-

Ext.A15 – Retail invoice No.2215 dtd.1125

Ext.A16 – Bill No.1654 dtd.9/3/09 for Rs.880/-

Ext.A17 – Bill No.6082639 dtd.7/3/09

Ext.A18 – Bill No.157 dtd.20/5/08 for Rs.350/-

Ext.A19 – Estimate for Rs.495/-

Ext.A20 - Bill No.64 for Rs.292.82

Ext.A21 - Invoice No.1070 dt.4/11/08

Ext.A22 – Invoice No.749 for Rs.2600/-

Ext.A23 – Invoice No.303 dt.20/5/08 for Rs.256.62

Ext.A24 – Bill No.60822994 dt.15/1/2009 for Rs.1,849/-

Ext.A25 – Service Coupon book of vehicle No.KL-09 V6068

Ext.A26 - Service Coupon book of vehicle No.KL-09 V3052

Ext.A27 - Service Coupon book of vehicle No.KL-09 U9031

Ext.A28 - Service coupon book of vehicle No.KL-09 V3945

Ext.A29 (Series) - Bills

Ext.A30 – Photocopy of certificate of registration No.Kl-09 V5743

Ext.A31 – Service coupon book of vehicle No.KL-09 V5743

Ext.A32 – Photocopy of e circular

Exhibits marked on the side of opposite parties

Ext.B1 – Terms and conditions of warranty policy

Ext.B2 – Photocopy of letter dtd.22/01/09

Cost (Allowed)

Rs.1,000/- (Rupees One thousand only) allowed as cost