KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL. NO.297/2009

JUDGMENT DATED: 24.4.2010

PRESENT

SRI.M.V.VISWANATHAN                : JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA               : MEMBER

MK/s Marikar Motors Ltd.,                 : APPELLANT

Near Training School,

Thalassery Road, Kannur.

(By Adv.G.S.Kalkura)

        Vs.

1. N.Balakrishnan,                              : RESPONDENTS

    Udava Nivas, Chundangapoyil,

    Ponniam.P.O., Kannur District.

2. Hindustan Motors Ltd.,

    P.O. Hind Motor, Hoogly District,

    West Bengal.

(By Adv.Pallichal S.K.Pramod)

JUDGMENT

SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

The above appeal is directed against the order dated 6^th April 2009 of the CDRF, Kannur in OP.No.174/05. The appellant was the 1^st opposite party and respondent 1 and 2 were the complainant and 2^nd opposite party respectively in the said complaint in OP.174/05 which was filed alleging deficiency in service on the part of the opposite parties 1 and 2 in effecting sale of a  vehicle with engine having manufacturing defects.  The opposite parties entered appearance and filed  separate written versions denying and disputing the alleged deficiency in service.  They contended that there was no manufacturing defect in the vehicle and that the defect occurred due to the negligence of the complainant in using the said vehicle.

2. Before the Forum below, the complainant was examined as PW1 and a witness from the side of the 1^st opposite party was examined as DW1.  Ext.A1 to A7 documents were marked on the side of the complainant and B1 to B6 on the part of the opposite parties.  On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite parties to pay compensation of Rs. 50000/- with cost of Rs.1000/-.  Aggrieved by the said order, the present appeal is filed by the 1^st opposite party therein.

3. The complaint at the first instance was filed  with the prayer to get the defective vehicle replaced or to refund the price of the said vehicle and also compensation of Rs.10,000/-.  During the pendency of the aforesaid complaint in OP.174/05, the complainant filed an application to get the relief portion amended.  It was also averred that due to the frequent maintenance required for the disputed vehicle, the complainant sold the vehicle to one M.S.Harish in the year 2006 on a sale consideration of Rs.2,10,000/- and by the said sale of a defective vehicle, the complainant suffered a loss of Rs.90,000/-.  It was also alleged that one year old Ambassader car will get sale consideration of Rs.3,00,000/-;  but the disputed vehicle could fetch only Rs.2,10,000/- and the loss sustained by the complainant would come to Rs.90,000/-. Hence, instead of the prayer for the replacement of the defective car with a new one, the complainant sought for the aforesaid amount of Rs.90,000/- with a further compensation of Rs.10,000/- for the mental agony and sufferings.

4. There is no dispute that the 1^st respondent/complainant   purchased the brand new Ambassader car on a sale consideration of Rs.3,36,000/- and the said purchase was effected on 10.3.2005 for the purpose of plying the vehicle as a taxi car for the livelihood of the complainant by way of self employment.  The appellant/1^st opposite party and the 2^nd respondent/2^nd opposite party contended that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986.  The fact that the complainant is a retired government employee and that he purchased the ambassador car manufactured by the 2ndopposite party and sold by the dealer,  the 1^st opposite party is not disputed. Ext.A3 document would show that the complainant purchased the said vehicle with the financial assistance rendered by Maheendra and Maheendra financiers.  Complainant as PW1 has also deposed that he purchased the said vehicle for plying the same as taxi and that he purchased the said vehicle with his retirement benefits for eaking his livelihood by means of self employment.  The aforesaid evidence of PW1 has not been challenged by the opposite parties.  In effect the aforesaid oral testimony of PW1 stand unchallenged.  The mere fact that the complainant is getting pension from the state government can not be taken a ground to negative the case of the complainant that the vehicle was purchased  and the same had been plying for his livelihood by means of self employment.  But getting of a nominal amount  by way of pension can not be taken as a ground to hold that the complainant is not a consumer entitled to get the benefit under the explanation to Section 2(1)(d) of the Consumer Protection Act, 1986.  The Forum below has rightly held that the complainant is a consumer coming within the ambit of consumer Protection Act, 1986.

5. Ext.A1 is the driving license which is held by the complainant.  This would show that the complainant is having sufficient experience as the driver.  The Forum below has also considered the entries in Ext.A1 driving license issued in the name of the complainant.  The case of the 2^nd opposite party that the defect developed in the engine of the said car because of the negligence of the complainant can not be believed or accepted.  The appellant/1^st opposite party has got a case that the engine of the vehicle developed unusual sound because of insufficient lubrication.  The appellant/1^st opposite party filed  the written version admitting the unusual sound developed by the engine.  It is contended by the 1^st opposite party in their written version that the un usual sound developed in the engine because of insufficient lubrication.  It is to be noted that the vehicle was purchased by the complainant on 10.3.2005.  The vehicle had its 1^st free service  on 8.4.05. At the time of the 1^st service on 8.4.2005 vehicle had covered only a distance of 1255 KMs.  The vehicle developed the unusual sound in he engine on 24.4.05 and the vehicle was brought to the 1^st opposite party/dealer at its service center  on 25.4.05.  At that time the vehicle covered only a distance of 2395KMs.  Thus, it can be seen that the unusual sound in the engine developed after 15 days of the first free service conducted  by the authorized dealer of the manufacturer.

6. Ext.A5 job card issued by the appellant/1^st opposite party authorized dealer would make it clear that the vehicle purchased on 10.3.2005 and at the time of delivery the vehicle had covered distance of 324KMs; that the 1^st service was conducted on 8.4.2005 at 1255 KMs and on 25.4.05 the vehicle entrusted with the appellant/1^st opposite party with engine sound and on that day the vehicle had covered distance of 3255KMs.  Ext.A2 invoice issued by the appellant/1^st opposite party to the complainant would also show that the vehicle was purchased on 10.3.2005.  The aforesaid date would give a clear indication that it is impossible for the engine lacking lubrication. If the engine was not having lubrication as contended by the 1^st opposite party, then it would reflect the deficiency in service on the part of the 1^st opposite party who conducted 1^st free service on 8.4.05.  Had there been a proper service and maintenance  of vehicle on 8.4.05, there would not have any lack of sufficient lubrication for the engine.  The available documents would show  that the vehicle is having regular maintenance at the 1^st opposite party’s service  center.  It is also to be noted that the vehicle had only the 1^st free service.  So, the lack of engine lubrication would suggest deficiency in service and negligence on  the part of appellant/1^st opposite party who conducted the 1^st service on 8.4.05.  So, the case of the opposite parties that there was negligence on the part of the complainant in maintaining  the vehicle cannot be believed or accepted.  The available materials would show that the vehicle was maintained and serviced at the appellant/1^st opposite party’s service center.  If there was any such insufficiency of engine lubrication, it would show negligence and deficiency of service on the part of the opposite parties.

7. The appellant/1^st opposite party has got a case that the complainant  took the vehicle from Kozhikode airport to Kannur with a defective engine and that the said using of the vehicle with lack of lubrication in the engine caused further damage to the engine.  But the definite case of the complainant is that he shifted the vehicle to the workshop of the 1^st opposite party at Kannur by towing the vehicle.  Ext.A4 receipt dated 24.4.2005 issued by K.Radhakrishnan to the complainant for receiving a sum of Rs.1750/- for towing  the car bearing Registration No.KL.13-M 7585 from Kozhikode to Kannur at Marikar Motors service center would show that the towing was done with the assistance of the jeep bearing Registration No.KL.11 B 4860 owned by said Radhakrishnan.  Complainant as PW1 has also deposed about the towing of the vehicle from Kozhikode to kannur at the premises of the 1^st opposite party  and payment of Rs.1750/- towards the charge for towing.  So, the aforesaid case of the appellant/1^st opposite party that the further damage was caused to the engine by running the vehicle with a defective engine cannot be believed or accepted.

8. Ext.A5 job card issued by 1^st opposite party would also support the case of the complainant that the crank shaft, connect rod, first connect rod bearing, main bearing, head gasket and other gaskets and washer were replaced.  Replacing of the crank shaft, connect rod etc.  at the distance of 2395KMs would establish the fact that there was inherent defect in the engine which was fitted to the said vehicle.  This would inturn give a clear indication that the 1^st opposite party/dealer and the 2^nd opposite party manufacturer of the said vehicle effected sale of a car with defective engine.  Thus, the opposite parties 1 and 2 effected sale of a defective vehicle to the complainant.  This would amount to deficiency in service and unfair trade practice.

9. DW1, the workshop in charge of the 1^st opposite party has categorically admitted the fact that in the ordinary course a brand new ambassador car would require engine work only after the lapse of 100000 KMs.  He further deposed that there are instances of plying of the ambassador car at a distance of 2 ½  lakh KMs without any engine work.  But in the present case the vehicle purchased by the complainant from opposite parties was in need of engine work after covering a distance of 2395 KMs.  This itself would make it abundantly clear that the said engine was a defective one and the said engine was having  some inherent defects.  There is nothing on record to show that the complainant used the said vehicle without doing proper and regular maintenance and repairs.  It is also to be noted that the engine work was done even before conducting the 2^nd and 3^rd free services.  The vehicle had only the 1^st free service at the service center of the 1^st opposite party.  The complainant who purchased brand new ambassador car expected  a vehicle with defect free engine.  There can be no doubt about the fact that by the sale of the ambassador car to the  complainant,  the opposite parties 1 and 2 committed deficiency of service and unfair trade practice.

10. The case of the opposite parties that no expert evidence is available to substantiate the case of the complainant regarding manufacturing defect can not be accepted.  In the light of the admitted facts that the vehicle required engine work at the very initial stage would make it clear that the said engine was having inherent defects.  The Forum below was not in need of any expert opinion to come to such a conclusion.  It is to be noted that Section 13(i) (c ) of the Consumer Protection Act stipulates of getting the defective goods analysed or tested by an expert or in any  approved laboratory only if the  consumer Forum is not in a position to determine  the alleged defects in the goods.  In the present case  on hand, the defects developed during the warranty period at a time when the vehicle covered only a distance of 2395 KMs and that  main engine parts like crankshaft, connecting rod, main bearing etc were replaced. It would establish the defective nature of the engine fitted to a brand new vehicle.  Thus, the materials available on record and the  admission on the part of the opposite parties regarding the defects especially; the evidence on DW1 and that of the complainant as PW1 are sufficient to come to a just and proper finding and conclusion that there was manufacturing defect in the engine which was provided for the brand new ambassador car purchased by the complainant.

11. The mere fact that the complainant sold the disputed vehicle during the pendency of the complaint before the Forum below cannot be taken as a ground to absolve the opposite parties from their liability to pay compensation  for the deficiency in service on their part.  The complainant got the original complaint amended by filing necessary amendment application and that the Forum below rightly allowed the said application filed for amendment of the complaint. The complainant has also deposed about the price he got on sale of that defective vehicle.  He also produced A7 agreement for sale of his vehicle to one M.S.Harish.  Ext.A7 sale agreement would show that the complainant received a sum of Rs.2,10,000/- by way of sale consideration, on sale of his vehicle bearing registration No.KL.13-M 7585 Ambassader car.  The complainant has also deposed that in the ordinary course 1 year old Ambassader car would fetch market value of Rs.3,00,000/-;  but due to the fact that his Ambassador car was defective,  he suffered financial loss of Rs.90,000/-.  Considering all these aspects, the Forum below awarded a compensation of Rs.50,000/- to the complainant with cost of Rs.1000/-.  In fact compensation of Rs.50,000/- ordered by the Forum below is not on the higher side.  We do not find any sustainable reason or ground to interfere with the impugned order passed by the Forum below.  The  present appeal deserves dismissal. 

In the result the appeal is dismissed.  The impugned Order dated 6^th April 2009 passed by CDRF, Kannur in OP.174/05 is confirmed.  The parties are directed to suffer their respective costs.

          SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

          SRI.M.K.ABDULLA SONA     : MEMBER

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