KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 1067/2000 JUDGMENT DATED:31..03..2010. PRESENT SRI. M.V. VISWANATHAN : JUDICIAL MEMBER 1. The Manager, Sakthi Automobiles, Thottada, Kannur. 2. The Manager, Sakthi Automobiles, : APPELLANTS Meenchanda, Calicut-18. 3. The Zonal Service in Charge, Tata Engineering & Locomotive Co. Ltd., Zonal Office, M.G.Road, Cochin. (By Adv:M/s Joseph & Kurian) Vs. Ommen Panicker, S/o O. Thomas Panicker, : RESPONDENT Tops House, Azheekal.P.O, Kannur-9. JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER The appellants were the opposite parties 1 to 3 and the respondent was the complainant in OP:740/96 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency of service on the part of the opposite parties 1 to 3 in their delay to redeliver the vehicle after repairs. It was alleged that the complainant purchased the tipper lorry manufactured by the 3rd opposite party through the opposite parties 1 and 2 dealers and the said vehicle was having warranty for a period of 18 months or 150000.Kms and that during the warranty period defects developed in the vehicle and it was entrusted with the 1st opposite party on 25/5/1996 for effecting repairs and replacement. Opposite parties failed to redeliver the vehicle after effecting necessary repairs, even after the lapse of more than 5 months. Hence the complaint was filed for a direction to the opposite parties for returning the said vehicle after effecting the repairs free of cost and in good condition and also to pay compensation of Rs.3,75,000/- and also to pay compensation at the rate of Rs.25,000/- per month for the subsequent period till redelivery of the said vehicle. 2. The opposite parties 1 and 2 the dealer and the service centre of the said vehicle filed joint version denying the alleged deficiency of service. They took the contention that the complainant is not a consumer as defined under the Consumer Protection Act and the complaint is liable to be dismissed. It was further contended that the defects in the vehicle were no manufacturing defects and under the warranty the opposite parties are only liable to repair manufacturing defects and there was no understanding or assurance to deliver the vehicle after repairs within a period of one week; That the 1st opposite party placed orders for the spare parts and meanwhile a sudden strike broke out at the offices of the opposite parties at Kannur resulting in a total breakdown of the functioning of the workshop and because of the strike the opposite parties could not deliver the vehicle after effecting the repairs. The delay if any occurred due to reasons beyond the control of the opposite parties. The opposite parties have taken all the necessary steps to get the vehicle released but all those attempts ended in failure; that the complainant was also requested to co-operate with the opposite parties in getting the vehicle released from the workshop but the complainant was not prepared to co-operate with the opposite parties. Thus, the opposite parties 1 and 2 prayed for dismissal of the complaint. 3. The 3rd opposite party filed separate written version denying the alleged deficiency of service. They also contended that the complainant is not a consumer as defined under the Consumer Protection Act and that there was no manufacturing defect as alleged by the complainant but as a gesture of goodwill the 1st opposite party agreed to carryout the repairs free of cost and that due to strike at the workshop of the opposite parties 1 and 2 they were not in a position to return the vehicle after the repairs. No damage has been caused to the vehicle due to the garaging of the vehicle at the workshop of the 1st opposite party. Thus, the 3rd opposite party also requested for dismissal of the complaint. 4. Before the Forum below the power of attorney holder of the complainant was examined as PW1. Exts.A1 to A10 documents were also marked on the side of the complainant. From the side of the opposite parties B1 to B7 documents were produced and marked. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:22nd September 1998 directing the opposite parties to pay interest at the rate of 12% per annum on Rs.6,21,811/-, the amount paid by the complainant for purchasing the tipper lorry from the opposite parties. The aforesaid interest was awarded from 25/5/1996 till 3/1/1997 with a further direction to pay a sum of Rs.6,300/- being the insurance premium for a period of 6 months and compensation of Rs.5000/- for mental agony suffered by the complainant and cost of Rs.250/-. The Forum below accepted the case of the complainant that there was deficiency of service on the part of the opposite parties in causing delay to deliver the vehicle after effecting repairs. Hence the present appeal by the opposite parties therein. 5. We heard both sides. Learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the Memorandum of the present appeal. He argued for the position that the complainant in OP:740/96 is not a consumer and so the said complaint itself is not maintainable. It is further submitted that there was no deficiency of service on the part of the appellants/opposite parties in delivering the vehicle after effecting repairs and that the delay occurred due to the sudden strike at the workshop of the 1st opposite party in Kannur. The learned counsel for the appellant relied on the decision rendered by the Hon’ble National Commission in Federal Bank, Bistupur, Jamshedpur Vs. Shri.Bijon Mishra, Managing Trustee, Consumer Guidance Society of Jamshedpur [I (1991) CPJ 16) ] and Consumer Unity and Society, Calcutta Vs. Bank of Baroda [I (1992) CPJ 18 (NC) ] and canvassed for the position that the delay in delivering the vehicle was due to reasons beyond the control of the appellants/opposite parties and the said delay occurred is to be considered as “Force Majeure”. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below and submitted that the decisions relied on by the appellants have no application in the present case as there is nothing on record to show that the strike broke out in the workshop of the 1st opposite party was an illegal strike. He further submitted that the vehicle which was entrusted for repairs on 25/5/1996 was delivered after effecting repairs only on 18/1/97 and because of the said long delay the complainant/consumer suffered financial loss and mental agony. He also submitted that the appellants/opposite parties moved the Hon’ble High Court only after a lapse of 4 months and no reason is stated for the said delay. It is also submitted that the opposite parties could have carried out the repairs to the vehicle within a period of one week, at any rate before the commencement of the strike on 3/7/1996. Thus, the respondent/complainant prayed for dismissal of the present appeal. 6. The points that arise for consideration are:- 1. Whether the complainant in OP:740/96 is a consumer coming within the ambit of the Consumer Protection Act, 1986? 2. Whether the complainant in OP:740/96 on the file of CDRF, Kannur has succeeded in establishing the alleged deficiency of service on the part of the opposite parties therein? 3. Whether the Forum below can be justified in finding deficiency of service on the part of the opposite parties (appellants) in OP:740/96 because of the delay in delivering the vehicle after effecting repairs? 4. Is there any legally sustainable ground to interfere with the impugned order dated:22/9/1998 passed by the CDRF, Kannur in OP:740/96? 7. Point Nos: 1 to 4:- There is no dispute that the respondent/complainant purchased the tipper lorry from the opposite parties on 30/1/1996 and that the said tipper lorry was manufactured by the 3rd opposite party Tata Engineering and Locomotive Company Limited and the sale of the said lorry was effected by the opposite parties 1 and 2 being the dealer and service centre of the 3rd opposite party. Admittedly the said vehicle was entrusted for effecting repairs on 25/5/1996 and the entrustment was made with the 1st opposite party, Sakthi Automobiles, Kannur. The aforesaid vehicle was having warranty for 18 months or 150000.Kms which ever happens first. There can be no doubt that the entrustment of the vehicle on 25/5/1996 was within the warranty period. The case of the complainant is that the defects were related to manufacturing defects and so the opposite parties were liable to repair the defects free of cost. There can be no doubt that the defects in the vehicle developed during the warranty period. It is settled position that service being rendered during the warranty period is to be considered as service as defined under Sec.2(1)(O) of the Consumer Protection Act and the person who avails such service during the warranty period can also be considered as a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. If that be so, the complainant who entrusted the vehicle for effecting repairs during the warranty period can be treated as a consumer who availed the warranty service from the opposite parties in OP:740/96. In such a situation, the complainant will come under the definition of consumer as defined under Sec.2(1)(d) of the Consumer Protection Act. 8. The vehicle was purchased on 30/1/1996 and the said vehicle was entrusted with the 1st opposite party/dealer for effecting repairs on 25/5/1996. We have already found that warranty service is also service and the person who availed such service is to be treated as a consumer under the Consumer Protection Act. It is to be noted that prior to the amendment of Sec.2(1)(d)(ii) of the Consumer Protection Act “Service availed for commercial purpose was also brought under the purview of the Consumer Protection Act”. It is after the amendment which came into force on 15/3/2003, Service availed for commercial purpose was excluded from the purview of the Consumer Protection Act. In other words, prior to the said amendment of Sec..2(1)(d)(ii) of the Consumer Protection Act, 1986 a person who avails service for commercial purpose was also considered as consumer coming within the ambit of the Consumer Protection Act, 1986. Thus, in all respects the complainant in OP:740/96 can be considered as a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986 and so the complaint therein was maintainable before the Forum below. 9. There can be no doubt about the fact that there occurred delay in delivering the vehicle after repairs. It is admitted by the power of attorney holder of the complainant as PW1 that the vehicle was delivered after effecting repairs on 18/1/1997. Admittedly the vehicle was entrusted for repairs on 25/5/1996. Thus, there occurred delay of more than 7 months in delivering the vehicle after effecting the repairs. It is also admitted by the power of attorney holder who was examined as PW1 before the Forum below that the opposite parties effected the said repairs of the vehicle free of cost and no repairing charge or cost of the spare parts was collected from the complainant. So, the Forum below has rightly disallowed the first prayer in the complaint in OP:740/96 for a direction to the opposite parties to release the vehicle after effecting all the repairs free of cost. It is also to be noted that the complainant has no case that the repairs were not effected in proper way or that the vehicle was returned after effecting repairs not in good condition. So, it can be concluded that the repairs were effected and the vehicle was returned in good running condition. 10. The complainant alleged manufacturing defect and due to the said manufacturing defects the repairs were necessitated. On the other hand, the opposite parties categorically denied the case of manufacturing defects. It is further contended by the opposite parties 1 to 3 in their written versions that there was warranty only for effecting repairs related to manufacturing defects and they are not liable to carry out the repairs free of cost which are related to operational defects. It was the definite case of the opposite parties that the defects were not manufacturing defects and they are not liable by the warranty to repair those defects. 11. But at the same time they expressed their readiness to carryout the repairs as a gesture of goodwill. The burden was upon the complainant to establish the alleged manufacturing defect in the vehicle. It is admitted by the opposite parties that the vehicle was entrusted for repairs regarding the defects of the crown wheel and pinion and the problem was regarding the housing too. It is also specifically contended that those defects are not manufacturing defects. But the complainant has not adduced any evidence in support of his case that those defects were related to manufacturing defects. No expert has been deputed to ascertain the fact as to whether those defects were manufacturing defects or not. No expert evidence is available on record to substantiate the case of the complainant that those were manufacturing defects. This aspect was not considered by the Forum below because of the fact that the opposite parties effected the repairs during the pendency of the complaint in OP:740/96 and the vehicle was delivered to the complainant after effecting all the repairs free of cost. 12. The admitted facts would show that there occurred delay of more than 7 months in delivering the vehicle after effecting the repairs. We are not concerned with the issue as to whether the opposite parties collected the repairing charges or they effected the repairs free of cost. It is for the opposite parties to explain the reason for the said delay of 7 months in delivering the vehicle after effecting repairs. The definite case of the opposite parties is that the delay occurred due to the reasons beyond their control and the said delay is to be considered as one resulting from “Force Majeure”. It is the definite case of the opposite parties that the delay occurred due to the sudden strike which broke out in the workshop of the 1st opposite party at Kannur. Admittedly that there was strike in the workshop of the 1st opposite party at Kannur where the tipper lorry of the complainant was garaged for effecting repairs. Ext.B6 and B7 copies of the judgment in OP:16781/1996 and OP:19285/96 on the file of Hon’ble High Court of Kerala would establish the fact that there was strike at the workshop of the 1st opposite party in Kannur. The opposite parties 1 and 2 in their reply lawyer notice dated:11/11/96 (Ext.B2) it was specifically stated that on 3/7/1996 the strike started at the branch of the opposite party and certain workers prevented the ingress and egress of other staff as well as the vehicles. It is further stated in the said reply notice that the opposite parties were unable to do anything in the matter and the opposite parties approached the complainant with a request to file an original petition before the Hon’ble High Court of Kerala for getting release of the vehicle. It is also stated that the complainant was also informed that the opposite parties are ready to meet the expenses for filing the original petition before the High Court; but the complainant did not co-operate with the opposite parties. It is categorically stated in Ext.B2 reply notice that all of a sudden the strike broke out at the offices of the opposite parties at Kannur resulting in a total break down of the functioning of the workshop and the sales office. It was also specified that the said strike started on 3/7/1996. The aforesaid contentions in the reply notice would make it clear that the opposite parties were not in a position to release the vehicle to the complainant and the reason for the delay in releasing the vehicle was beyond the control of the opposite parties. If that be so, the said reason for the said delay can be considered as one resulting from “Force Majeure”. In such a situation the opposite parties cannot be found fault with for the said delay. The Forum below cannot be justified in finding deficiency of service on the part of the opposite parties for the said delay in delivering the vehicle after effecting repairs. 13. The Forum below was of the view that the said strike was started by the workers after giving strike notice to the management. But there is no such case for the complainant. The complainant has no case that the said strike was a legal strike and the workers started the said strike after giving prior notice to the management. It is to be noted that complainant was fully aware of the said strike which broke out in the office and workshop of the 1st opposite party at Kannur. He was also informed about the said strike by the reply notice. The recitals in B2 reply notice would also make it clear that the opposite parties 1 and 2 had occasion seeking the co-operation of the complainant for filing an original petition before the Hon’ble High Court of Kerala and to get the vehicle released from the workshop of the 1st opposite party. But suppressing all those facts, the complaint in OP:740/96 was filed. There is no whisper in the said complaint about the strike which commenced at the offices and workshop of the 1st opposite party. The complainant pretended ignorance about the said strike. The aforesaid suppression of material fact would give an indication that the complainant approached the Forum below with ulterior motive of getting compensation somehow or other. There is also no whisper about B2 reply notice issued by the opposite parties 1 and 2 stating the reasons for the delay. The procedure adopted by the complainant in filing the complaint in OP:740/96 could not be appreciated or encouraged. 14. The complainant has not filed any replication or reply affidavit to the version filed by the opposite parties. It is also to be noted that the complainant has not filed any affidavit in support of his case. PW1, the power of attorney holder of the complainant has not spoken to about the said strike or about B2 reply notice received by the complainant. There is no case for PW1 that the said strike was a legal strike after giving prior notice. The Forum below cannot be justified in presuming that the said strike was commenced after giving prior notice to the management. Moreover, the Forum below cannot be considered as the competent authority to decide the issue as to whether the strike was a legal strike or illegal strike. The aforesaid issue regarding the legality of the strike can only be considered by the Labour Court or the Industrial Tribunal or other authorities under the labour legislations. The finding of the Forum below that the strike was a legal strike and it was after giving prior notice etc cannot be accepted or upheld. 15. The admitted facts would show that there was strike in the workshop of the 1st opposite party at Kannur and the said strike commenced on 3/7/1996. It is not disputed by the complainant that the said strike was a sudden strike commenced by the workers. Ext.B6 and B7 judgments rendered by the Hon’ble High Court would also show that there was strike in the workshop of the 1st opposite party and the vehicle could not be taken from the workshop because of the obstruction caused by the striking workers. The aforesaid judgments would also show that at the first instance the Ho’ble High Court was not pleased to grant police protection to get the vehicles released from the said workshop. Subsequently by B7 judgment dated:13/12/1996 the Hon’ble High Court granted police protection to get the 3 vehicles, including the vehicle owned by the complainant, released from the said workshop. It is to be noted that immediately thereafter the vehicle was released to the complainant on 18/1/1997. It is not just or fair to find deficiency of service on the part of the opposite parties because of the delay in delivering the vehicle after effecting repairs. 16. The complainant entrusted the vehicle for repairs on 25/5/96. Ext.B3, B4 and B5 documents would show that on getting the said vehicle the 1st opposite party informed the 3rd opposite party to dispatch the spare parts required for effecting repairs. It would also show that the 1st opposite party placed the orders over telephone and thereafter written order Form was placed for spare parts. Unfortunately, there occurred a mistake in dispatching the spare parts and so the 1st opposite party written to the 3rd opposite party at Jamshedpur to forward the correct spare parts required for effecting repairs. It is during the said period the strike commenced on 3/7/1996 and because of the said strike the repairs could not be effected. There is no glaring negligence or deficiency of service on the part of the opposite parties in effecting repairs. The documentary evidence on record would show that the opposite parties were vigilant in effecting repairs and releasing the vehicle; but they failed to release the vehicle within the reasonable time because of the strike commenced on 3/7/1996 and continued thereafter. It is to be noted that the complainant has not alleged that the opposite parties were keeping mum and they failed to take necessary steps to release the vehicle from the workshop where the strike was going on. So, the Forum cannot be justified in finding fault with the opposite parties for the said delay in releasing the vehicle to the complainant. 17. The Forum below was of the view that the opposite parties were negligent in their failure to keep sufficient quantity of spare parts with the opposite parties 1 and 2. The appellants have categorically given the reasons for not stocking huge quantity of spare parts at the centers of the dealers. It is to be noted that the 3rd opposite party, Tata engineering and Locomotive Company Ltd is having a huge number of dealers in various parts of India. It is rather impossible for the 3rd opposite party to supply so many quantities of spare parts at each centers. It is also to be noted that the spare parts are to be purchased by the dealers by effecting payments. So, the dealers would not be in a position to have huge quantity of stock of spare parts. It is also to be noted that the dealers would stock the spare parts depending upon their demand and requirement. There is no case for the complainant that the spare parts which were required for the complainant’s vehicle are items frequently required for such vehicles. There are acceptable justifications for the opposite parties in not keeping so much quantity of spare parts at their centers. Opposite parties 1 and 2 are perfectly justified in placing orders for the required spare parts. It is to be noted that there was no delay in placing such orders for spare parts. The Forum below has gone wrong in finding fault with the opposite parties for not having sufficient quantity of spare parts at the centers of the dealers. Thus, in all respects the impugned order passed by the Forum below finding deficiency of service on the part of the opposite parties for the delay in delivering the vehicle after effecting repairs is legally untenable and unsustainable. 18. The decisions rendered by the Hon’le National Commission reported in 1(1991)CPJ 16 and 1 (1992) CPJ 18 (NC) (supra)would support the case of the appellants/opposite parties. The mere fact that the respondent/complainant suffered financial loss or inconvenience because of the delay in delivering the vehicle cannot be taken as a ground to find the appellants/opposite parties negligent and deficient in rendering service. The reason for the said delay in delivering the vehicle is to be considered. But the Forum below failed to consider the aforesaid reason for the delay. The materials on record would make it clear that the reason for the delay was beyond the control of the appellants/opposite parties. There is also no circumstance or evidence to find the appellants/opposite parties negligent in effecting repairs to the vehicle owned by the complainant. On the other hand, the available materials and the circumstances of the case would show that the appellants/opposite parties had taken all the necessary steps to effect repairs to the vehicle and release the vehicle to the complainant. But unfortunately, the appellants/opposite parties were prevented by the strike in the workshop of the 1st opposite party in releasing the vehicle after effecting repairs. So, the appellants/opposite parties cannot be made liable to compensate the respondent/complainant for the financial loss and inconvenience suffered by the complainant. The aforesaid decisions rendered by the Hon’ble National Commission (supra) would justify the appellants/opposite parties for the delay in delivering the vehicle after effecting repairs. This commission have no hesitation to setaside the impugned order dated:22nd September 1998 passed by CDRF, Kannur in OP:740/96. These points are answered accordingly. In the result the appeal is allowed. The impugned order dated:22/9/1998 passed by CDRF, Kannur in OP:740/96 is set aside. The complaint in OP:740/96 is dismissed. The parties to this appeal are directed to suffer their respective costs through out. M.V. VISWANATHAN : JUDICIAL MEMBER VL. | 
