IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                     Thursday the  27^th    day of August, 2020

                               Filed on 27. 02.2017

Present

1. Sri. Santhoshkumar Bsc. LLB(President)

2. Smt. C.K.Lekhamma.BA. LLB(Member) 

                                                  In

                                      CC/No.58/2017

                                                     Between

Complainant:-                                                            Opposite parties:-

Smt. Nishimol                                              1.       Popular Mega Motors(India)

W/o Thampy                                                         Pvt. Ltd. (Vehicle Dealer)

Pulickal Nikarthil                                                   Kappakada, Punnapra North

Cherthala.P.O,                                                        Alappuzha-688004

Alappuzha-688524                                                  (Advs.M/s Sheriff Associates LLP)

(Adv. James Chacko)

                                                                   2.        TATA MOTORS LTD

                                                                              20^th Floor, Tower 2A

                                                                              One India Bulls Centre 84

                                                                              Senapati Bapat Marg

                                                                              Elphinstone Road,

                                                                             Mumbai- 400013

                                                                             (Exparte)

                                                                   3.       Paul Star Engineering world

                                                                             Manjali, North Paravoor,

                                                                             Ernakulam District.

                                                                             (Adv. Aji.K Antony)

                                                      O R D E R

SMT. C.K.LEKHAMMA (MEMBER)

          Complaint filed u/s 12 of the Consumer Protection Act.1986.

1.     Brief facts of the complainant’s case are as follows:-

        The complainant purchased a LPK 909 BS III Tipper Lorry manufactured by 2^nd opposite party through its authorized dealer 1^st opposite party on 15/5/2015.  The 2nd opposite party provide 36

months of warranty.  The body was built by 3^rd opposite party.  The complainant’s husband is a driver by profession.  They purchased the same for the purpose of self employment and in order to win their daily bread.

        After one month of its purchase, a narrow scratch had seen in the back left side of the chassis.   Immediately complainant’s husband informed the 1^st opposite party and produced the vehicle before them.  They stated that this is not a major problem and it will not affect the use of the vehicle.  Thereupon again started to use the vehicle.  But after a few months the scratch had developed to size of 4 inches.  Again informed the matter to the 1^st opposite party they stated that the company is giving replacement warranty to all that parts and soon it can be replaced after informing the same to the 2nd opposite party.  Thereafter 2^nd opposite party had been saying some or other reasons and dragging the replacement.  Now the scratch became a huge shape and we could not load goods in its full capacity.  Thereby smooth drive of the vehicle has been restricted and causes financial losses to the complainant.  So they are losing the expected income.  Now opposite parties’ officials stating that the said defect was not a manufacturing defect and it was caused due to the defects in body building.  Thereupon complainant approached the 3^rd opposite party body builder.  He stated that the body was

built in the usual manner as in the case of all such vehicle and no such defect was reported earlier.  Hence it is a manufacturing defect.     The complainant alleged deficiency in service from the part of  1^st and 2^nd opposite parties.  The defect occurred within the warranty period.  So the 2^nd opposite party is liable to replace the chassis.  Therefore, following reliefs are sought against the 1^st and 2^nd opposite parties that to give direction to replace the chassis of the vehicle and also directed them to pay compensation and cost of the proceedings.

2.     Version of the 1^st opposite party in short are as follows:-

        The complainant is not a consumer since vehicle in question is being used for commercial purpose alone.   Complainant had purchased the vehicle without body and had built the body with 3^rd opposite party’s Engineering workshop.  Through the Operator’s service book issued to the complainant at the time of her purchase of the vehicle it had been cautioned that, “ It is recommended that no unauthorized modifications such as welding & drilling on chassis frame, cambering of axles, addition and re-cambering of spring leavers or changes on any other part to carry higher payload be carried out.  This will not only adversely affect the performance of the vehicle but also result in premature failure of aggregates and warranty will become null & void”. Apart from the specific cautions

made by the opposite parties 1 & 2, it was revealed that the complainant had added 3 numbers of spring leaves in front LH side & in front RH side and 4 numbers of spring is added in rear RH LH & rear RH side with the sole intention to carry more load than the permitted payload.  As per the specifications of the vehicle, the manufacturer is providing the springs only with 12 in front LH and 12 in front RH side, 15 numbers in rear RH and 15 numbers in rear LH side including helper spring.  Now, the total number of spring leaves had reached 30 in front and 38 in rear side.  More than that, the body of the vehicle is build with the sole intention to carry more and more load than permitted.  The complainant had utilized the vehicle against the instructions and warranty conditions of the vehicle, with an intention to grab more and more profits.  The complainant had made a lot of welding works on the chassis.  The crack is found in the welding area.  The complainant had utilized 3^rd opposite party’s unauthorized workshop for all the body works as well as the imparting of additional springs.  The work performed by unqualified workers in an unauthorized workshop can cause damage to the vehicle.  The averment that after one month from the starting of the vehicle as a good carriage a narrow scratch had seen in the back left side of the chassis is not correct.  The complainant had produced the vehicle for availing 1^st free service on 2/12/2015

 covering 21262 kms.  When the complainant had produced the vehicle at the service station of the 1^st opposite party for availing the 2^nd free service on 27/4/2016(about one year after purchase of the vehicle), after covering 40452 kms, he had alleged about the crack.  The payload capacity of the said vehicle is 6350kg, whereas the vehicle was being used to carry double the said permissible load.  In order to facilitate the over loading, the complainant had added spring leafs to the suspension, which is amounting to violation of warranty conditions.  The said alteration was done only for the purpose of carrying more loads, than prescribed by the manufacturer.  The small crack developed on the rear left side chassis was due to the overloading as well as the unauthorized welding works done by the 3^rd opposite party on the chassis.  When the defect had come to the notice of the 1^st opposite party, the officials of the 1^st opposite party had advised the complainant and her employee to use the vehicle as per the instructions of  the manufacturer and to remove the additional load bearing gadgets welded into the same for reducing the further damages to the vehicle.  But, the instructions of the 1^st opposite party were neglected by the complainant.  Therefore, it is evident that the complainant is attempting to create an impression that, the vehicle is defective.  Only due to the actions and omissions of the complainant

 the crack had developed and expanded and the 1^st opposite party is

not liable for the same.  The complainant is not having any right to make self induced defects, by blaming the 1st opposite party for no reason. The 1^st opposite party had offered all the services to the complainant even though; she had exhausted her right to claim for the same, as a goodwill measure.  The vehicle was provided with 3^rd service on to be taken for 60000kms on 21/10/2016 and 4^th service on to be taken for 80000 kms on 25/3/2017.  The complainant, who had done the body working and welding work on chassis and added the load over loading gadgets in the vehicle through the 3^rd opposite party; now claims that, the crack had developed due to the manufacturing defect of the vehicle.  Even though, the complainant had impleaded 3^rd opposite party in the party array he had not claimed any reliefs from the 3^rd opposite party itself proves the collusion among the parties.  The vehicle is not having any manufacturing defect.  It is pertinent to note that whenever, the complainant brought the vehicle to this opposite party,  technicians of the 1^st opposite party have attended the vehicle promptly and carried out the repairs as expeditiously as possible.  As a matter of fact, 1^st opposite party has no obligation to replace the chassis, in view of the fact that, it was not attributable to any defects of the vehicle.  Further these opposite parties are even now ready and

willing to repair the vehicle, if any such repairs are necessary, subject to the terms and conditions of the  warranty.  They have no liability to pay any amount to the complainant.  It is evident from the service history that , the vehicle has already covered 82350kms as on 25/3/2017, and that fact itself indicates that the vehicle was being put to use on regular basis.  If the vehicle was having complaints as alleged in the complaint, it would not have been possible to ply the vehicle for this many kilometers.  It was due to the high quality of the vehicle, it had worked to cover this much kms; apart from the fact that, the same had been       mis-utilized by the complainant.  The complainant is not entitled for any of reliefs sought for and the complaint is only to be dismissed.

3.     Version of 3^rd opposite party is as follows:-

        The complainant is not a consumer as defined by the Consumer Protection Act.  Tipper lorry was purchased by the complainant only for commercial purpose and the same will not come under the definition of sec.2(d) of the Act.  This opposite party conducting the body building works of the vehicle especially for Tipper lorry for the period of more than 8 years and it is an authorized vehicle body building workshop approved by many leading vehicle dealers and number of satisfied individual customers also.  This opposite party conducting the body building works with these vehicle dealers many

 years and anybody has not raised any complaint or damages so far.  The nature of the works of this opposite party is very limited and this opposite party has equipped the body as per the approved manner as specified of the available vehicles and fix the same over the sub chassis.  It is pertinent to note that the chassis and sub chassis are connecting together with ‘U’ bolts and these works are done by the qualified workers of this opposite party with the help of machinery.  Being a body building workshop work is very limited and we have not done any work such as adding spring leaf, welding works etc.  This opposite party have not done any welding on chassis as alleged by the 1^st opposite party in their version.  The small crack developed on the rear left side of chassis due to the rash and negligent use of the vehicle as well as the manufacturing defect due to the use of substandard materials of the vehicle.  Complainant never approached this opposite party after fixing the body of the vehicle and the complainant was fully satisfied with the works of this opposite party.  This opposite party has no collusion with the complainant.  No relief is claimed against this opposite party and this opposite party has no liability to pay the cost of this complaint.

4.     The power of attorney holder of the complainant examined as PW1 and Ext.A1 to A4 were marked.  Witness for 1^st opposite party examined as RW1, Exts.B1 to B7 were marked.  Commissioner examined as CW1 and report marked as C1.  2^nd opposite party remained exparte.  Heard the respective counsel.

5. Points that arise for our determination are:-

1. Whether the complainant is a consumer under the purview of

    the Consumer Protection Act?

2.  Whether the complainant is entitled to get replacement of the

     chassis of the vehicle in question?

3.  Whether 1^st opposite party committed any deficiency in service  

4. Compensation and cost if any?

6.  Point No.1

        The 1^st opposite party contented that the complainant is using the vehicle for commercial purpose. But RW1 deposed that he is not aware of the said averments put up in their version and did not adduced supporting evidence to that affect.  Moreover complainant proves that her husband is a driver and Ex.A4 copy of Driving License belongs to him.  PW1, the husband of the complainant was not cross examined to that aspect.  Hence there is no evidence before as to prove the vehicle in question is used for commercial purpose.   Therefore we found point number one in favour of the complainant.

7. Point No. 2 to 4:-

 Following documents produced by complainant in support of her allegation.   Ext.A1 is the Power of attorney of the complainant, Ext.A2 copy of RC of vehicle in question,  Ext.A3 copy of warranty conditions, Ext.A4 attested copy of license of the Power of attorney holder.  The grievance of the complainant is that the left side of chassis the vehicle in question got crack due to manufacturing defect of chassis during warranty period

 Documents of 1st opposite party are Ext.B2 photo copy of operator’s service book,   Ext.B3 photographs of vehicle, Ext.B4 and Ext.B5 are job cards of the vehicle dtd. 21/12/2015 and 24/2/2016 respectively. Ext.B6 and B7 are also job cards.

        The main allegations of 1^st opposite party is that the crack seen on the left side of chassis caused due to unauthorized welding work done on the chassis and had added 12 leaf springs 3 each on all four sides.  It is for the purpose of carrying more goods than allowed by the manufacturer and hence violated the warranty conditions thereby the complainant is not entitled for any reliefs prayed for.

        The 1^st opposite party filed objection to set-aside the commission report.  Thereafter no steps was taken to set-aside the report.  During the examination of CW1, commissioner, the report marked subject to objection.   But the report is being remained unchallenged.  We have no hesitation to rely the Ext.C1 report.

 As per Ext.A3 warranty terms and conditions produced by the complainant in which it is mentioned that this warranty shall be valid for 36 months/ 3,00,000/- km for engine components and 18 month/1,50,000km  for OE body.  The vehicle was brought for 2^nd service at 40000km and issued Ext.B5 job card dtd. 24/7/2016 in which it is written as customer complaint with regard to the broken of chassis and action taken by opposite parties is noted as “speed setting”.  It seems that the complainant has informed said complaint to the 1^st opposite party within a short period of time, which is within the warranty as mentioned in Ext.A3.

        RW1 witness of 1st opposite party deposed as per Ext.B3 photographs are the only evidence to prove the additional work done by the complainant but  Ext.B3 was marked subject to objection.  During cross examination of PW1 agreed that leave springs added but not done welding of chassis.  CW1 commission also agreed that added leave springs for which welding was done on chassis.  He has also further deposed that welding was done on both left and right sides; he has observed the crack on the left side.  He again deposed that it took nearly 10 to 15 minutes to complete the welding.  He agrees that the state or form of metal may change while taking this much time for welding.  He disagree with the suggestion that

 IqSpX  kabw Welding \S¯nb left hand side    BWv s]m«Â D­mbsX¶v ]dªm \ntj[n¡m³ ]äptam. \ntj[n¡m³ ]äpw.  c­p Øe¯pw Hcp t]msebmWv sNbvXXv. A§s\bmsW¦nepw  heXp`mK¯pw s]m«Â D­mtI­XtÃ.   But he agrees such analysis to him was not based on any scientific expertisation, it was only on physical verification. Moreover he failed to ascertain the depth of   crack, the running kilometer of the vehicle at the time of inspection and not measuring the cubic capacity of the vehicle.

        RW1 deposed that they noticed the crack on chassis and the same was noted in Ext.B5.  According to   RW1 which is occurred within warranty period but  the same was not communicate to 2^nd opposite party due to the reason that they found  additional  modification and welding on the chassis.  The above said act of the complainant amounts to the violation of warranty conditions as per Ext.B2.  Therefore they did not communicate the 2^nd opposite party.

Ext.B2, operator’s service book in which it is specifically mentioned under the head ‘Does and Don’ts on vehicle’.  It is mentioned that no unauthorized modifications such as welding & drilling  on chassis frame, cambering of axles, and additional  and re-cambering of spring leaves or changes on any other parts carry higher payload be carried out.  This will not only adverse affect the performance of the vehicle but also result in premature failure of aggregates and warranty will become null & void.

  According to the complainant 3^rd opposite party is the authorized body builder of 1^st opposite party, they had perfectly done followed the building work on the vehicle in question as per the guidelines of 2^nd opposite party.   According to 3^rd opposite party they are experienced body builders of various well established  manufacturers and they have conducted the work on the complainant’s vehicle as per the approved manner and fix the same over the sub chassis.  They did not done any welding on chassis and adding spring leaves.  But 1^st opposite party denied said statements of both complainant as well as the 3^rd opposite party and alleged that both of them were colluded each other and 3rd opposite party had done welding on the chassis and added more spring leaves than permitted by 2^nd opposite party according to the wishes of the complainant, which is against the warranty instructions.  Matter is being so, it is the burden of 3^rd opposite party to mount the box and clarify such discrepancy with regard to the work.  But they did not do so.  On the contrary commissioner as well as the complainant agrees that added spring leaves and conducting welding on chassis.  According to them said works are necessary for the better performance of the vehicle.  But complainant miserably failed to convince us said works are authorized or unauthorized as stipulated by Ext.B2 operator’s service book.

  In the aforementioned discussions we are of the view that the complainant is not entitled to get any reliefs from the opposite parties 1 and 2.  In the result we dismissed the complaint without any cost.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the   27^th     day of August , 2020.

                                      Sd/-Smt. C.K.Lekhamma(Member)                   

                             Sd/-Sri. S.Santhosh Kumar(President)

Appendix:-Evidence of the complainant:-      

PW1 -                  Thampi.K(Witness)

Ext.A1                 -        Power of Attorney of Complainant     

Ext.A2                 -        Registration Certificate   

Ext.A3                 -        Warranty Conditions

Ext.A4                 -        Driving Licence

CW1                    -        Manu(Witness)

Ext.C1                 -        Commission Report

Evidence of the opposite parties:-

RW1                    -        Anilkumar.R(Witness)    

Ext.B1                  -        Popular Mega Motors Certified True copy            

Ext.B2                 -        Photo copy of Operator’s service book.

Ext.B3                 -        Copy of Warranty conditions

Ext.B4                 -        Job card dtd. 21/12/2015

Ext.B5                 -        Job card dtd. 24/2/2016  

Ext.B6                 -        Job card dtd. 21/10/2016

Ext.B7                 -        Job card dtd.  25/3/2017

 // True Copy //

To

            Complainant/Oppo. party/S.F.

                                                                                                                           By Order

                                                                                                                   Senior Superintendent

Typed by:- Br/-

Compared by:-