DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678 001, Kerala

Dated this the 31^st day of December, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC No.103/2007

Abdul Gafoor.P.P,

S/o.Muhammed,

Palattuparambil House,

Kuttikode,

Thrikkadeeri(P.O),

Cherpulasseri,

Ottapalam Taluk, Palakkad. - Complainant

(By Adv.K.A.A. Sadath)

Vs

1. M/S.P.S.N.Automobiles (P) Ltd.,

Rep. by its Manager,

Opp. Cosmopolitan Club,

N.H.47, 17/104, Kadankode,

Kunnathurmedu(P.O),

Palakkad.

(By Adv.P.Sanjay & Others)

2. M/s.Eicher Motors,

Rep by its Area Officer,

Area Office, 40/1170,

Mangalath Building,

Opp. Bhartiya Vidya Bhavan,

T.D.Road, Cochin. - Opposite parties

(By Adv.P.Sanjay & Others)

O R D E R

By Smt.Seena.H, President

Complainant purchased a Eicher tipper lorry manufactured by second opposite party from the 1^st opposite party by availing Hire Purchase facility from Sundaram Finance Ltd, Palakkad. An amount of Rs.21,660/- is to be paid monthly towards instalment of Hire Purchase. After purchase of the vehicle all periodical

services to the vehicle was done from the authorised service station. After the 2^nd

periodical service, it was noticed that the exhaust system of the vehicle is not working properly as it delivers very thick, abnormal and whitish fume through exhaust fan. Soon after the defects was noticed it was brought to the attention of the 1^st opposite party who in turn adviced that it will be cured by changing engine oil etc which can be conducted in the third periodical service. But unfortunately, the aforesaid defects was not cured in the third periodical service which was held on 28/05/07. The vehicle was again taken to the 1^st opposite party on 29/05/07 for necessary repairs and on that day some work has been done by the 1^st opposite party, by dismantling the engine the vehicle was delivered on 31/05/07. Even after that the defect was not cured and finally the vehicle was again taken to the 1^st opposite party service station on 09/07/07. There after 1^st opposite party has not taken any steps to repair the vehicle. The engine has serious manufacturing defects and as such opposite parties are responsible and liable to cure those defects by necessary repairs/replacement of parts at free of cost. Complainant caused a lawyer notice on 23/07/07 to the opposite parties. 1^st opposite party received the notice and sent reply setting forth false allegations. Lawyer notice sent to the 2^nd opposite party was returned unserved. Complainant approached the 1^st opposite party on 06/08/07 to take back the vehicle along with operator's manual cum periodical service so as to get it repaired from some other authorised service station. But 1^st opposite party refused to release the vehicle demanding that the complainant has to give an acknowledgement stating that he dismantled the cable connecting speed governor with accelerator and rolled it over to the air filter box which lead to malfunctioning of the vehicle and that the complainant is taking back the vehicle in the same condition as on 09/07/07 on which day it was entrusted to the 1^st opposite party. When refused, opposite party gave a false petition before the Palakkad South Police Station alleging that the complainant quarreled with them. There after the vehicle was taken to the Police Station. Vehicle was released from the Police Station on 09/08/07. After release of the vehicle complainant found that the air filter box is in damaged condition. According to the complainant, the defects of the engine of the vehicle are so serious manufacturing defects and hence the opposite parties are liable to rectify the same by necessary repair or replacement at free of cost and labour.

2. 2^nd opposite party was set ex-parte.

3. 1^st opposite party filed version contending the following. Opposite parties admit that the vehicle was purchased from the 1^st opposite party. During the third service misfiring of engine was brought to the notice of the 1^st opposite party by the complainant and on inspection it was found that it was due to the blockage of fuel injection system. The said defect was rectified to the complete satisfaction of the complainant and the vehicle was taken back by the complainant. Complainant again approached the 1^st opposite party after running the vehicle for about 7000 kms complaining regarding the malfunctioning of the engine. On inspection it was found that complainant has dismantled the cable connecting to speed governor with the accelerator and had rolled it over the air filter box thereby illegal disconnecting the speed governor from the vehicle and while the vehicle is in motion the friction caused by rubbing all the cable and air filter box had made a hole in the air filter box. As a result of which mud and water entered the engine through the hole in the air filter box. This was the reason behind the malfunctioning of the engine. According to 1^st opposite party this happened only due to the negligent, illegal and unlawful act on the part of the complainant. The complainant along with its agent came to the opposite parties show room and quarreled with the staff. They tried to take back the vehicle using physical force and so the opposite parties were forced to lodge a complaint before the Palakkad South Police Station. The Police tried to settle the matter and after conciliation and negotiation before the Police Authorities opposite parties requested in writing the fact that the repair of the vehicle has not been completed and the vehicle was released only on the compulsion of the complainant. According to 1^st opposite party there is no manufacturing defect as alleged. The whole events occurred due to the malpractice of the complainant and hence the complaint is liable to be dismissed.

4. The evidence adduced consists of proof affidavit of the complainant and proof affidavit of the 1^st opposite party. Exts.A1 to A5 marked on the side of the complainant.

5. Issues for consideration;

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

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

6. Heard both parties and gone through all relevant documents on record. Complainant has purchased the vehicle on 19/09/06. First the defect was noticed on 31/05/07 after 8 months from the date of purchase. Complainant alleges manufacturing defect to the vehicle.

7. As per Section 2(1)(f) Consumer Protection Act, 1986, defect means “any fault, imperfection or shortcoming 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”. Even if there is no manufacturing defect complaint can be filed for any other type of defect as stated above. In the present case both parties admit there is defect in the vehicle. But whether it is covered within the warranty or not is not clear from records. Complainant has not produced any terms and condition regarding the warranty. Opposite parties has taken a specific contention that the defect noted in the engine was due to the complainant's illegal action of dismantling the cable connecting the speed governor with accelerator and rolled it over the air filter box thereby illegally disconnecting the speed governor from the vehicle which resulted in a hole being created on air filter box and subsequently water and mud entered into the engine through the hole in the air filter box and this caused malfunctioning of the engine. Complainant has not taken any steps to examine the vehicle by an expert so as to prove the manufacturing defects. An expert can very well opinion regarding whether the defect was caused by the mishandling by the complainant or not. Moreover there was no allegation of manufacturing defects during the initial periods of purchase.

8. In view of the above facts and circumstances of the case, we are of the view that the complainant miserably failed to prove a case in his favour.

9. In the result complaint dismissed. No order as to cost.

10. Pronounced in the open court on this the 31^st day of December, 2009

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Exhibits marked on the side of complainant

Ext.A1 – True copy of lawyer notice dtd.23/07/2007

Ext.A2 – Lawyer notice addressed to 2^nd opposite party returned unserved

Ext.A3 – Reply notice dtd.31/07/2007

Ext.A4 (Series) 3 in Nos– Memo of Palakkad Engine Rebuilders

Ext.A5 – Copy of Certificate of Registration

Exhibits marked on the side of opposite parties

Costs (Not allowed)