DATE OF FILING : 10.6.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 25th day of August, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDHU SOMAN MEMBER
C.C No.130/2011
Between
Complainant : S. Ganesan,
12/152, Nyamakadu Estate,
(East Division), Munnar,
Idukki District.
(By Adv: Jose Thomas)
And
Opposite Parties : 1. M/s. R.F. Motors (P) Ltd.,
Skyline Gateway Apartments,
Pathadippalam,
Edappally, Kochi – 682 033.
2. M/s. R.F. Motors (P) Ltd.,
Madakkathanam P.O.
Vengalloor, Thodupuzha,
Idukki District.
(Both by Adv: C.K. Babu)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant purchased one Tata Sumo Grade M.K.II vehicle from the 1st opposite party on 28.8.2010 by paying an amount of Rs.6,86,006/- for earning his livelihood. After 4 months of the purchase, the speedometer of the vehicle became faulty and defect of the vehicle was duly informed to the opposite parties. The vehicle was became in problem of leak in the radiator coolant. The matter was informed to the opposite parties. The opposite parties did not take any interest to remove the defect of the vehicle of the complainant. While it was entrusted to the 1st opposite party, they directed to entrust the vehicle to the 2nd opposite party. At last the damage of the vehicle was cured and given to the complainant after 37 days from the date of entrust of the vehicle to the 2nd opposite party who is the franchise of the 1st opposite party. The vehicle was running for about 700 km/day and the complainant was earning Rs.3,500/- daily by plying of the vehicle and due to the delay in repair of the vehicle, it caused difficult to pay the instalments of financial assistance availed by him. The complainant has to approach private financiers and it caused mental agony to the complainant and family members. Since the odometer
(cont.....2)
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was complaint, the complainant was not able to dictate the actual fare amount from the customers and so the complainant was not able to ply the vehicle because it is a taxi vehicle and not able to calculate the amount from the customers of the vehicle. Hence the petition is filed for getting damage caused because of the manufacturing defect of the vehicle. Rs.1,29,500/- has been claimed as damages sustained due to the delay in getting the vehicle repaired and also for compensation of Rs.50,000/- for the mental agony caused to the complainant.
2. As per the written version filed by the opposite party, the dispute about the vehicle which has been purchased for commercial purpose, does not come under the preview of Consumer Protection Act. Because it is a manufacturing defect, the complainant has wilfully chosen not to implead the manufacturer who is a necessary party. Hence the complaint is bad for non-joinder of necessary parties and the complaint is not at all maintainable. Another contention raised by the opposite party is that the vehicle is not purchased for livelihood. The complainant is a business man running travel agency business and he owns many vehicles which are driven by drivers appointed by him. The allegation that the speedometer of the vehicle was not working is denied by the opposite party, that matter was not reported to the opposite party at the time of entrusting the vehicle to the opposite party for repair of the radiator. The opposite party promptly checked the vehicle's engine cooling system and thereby found slight leaking in the radiator and the matter was informed to the complainant. After confirming the same, the 2nd opposite party placed order for new radiator, from the manufacturer at Pune. The opposite party took time for the repair and it was in the larger interest of the complainant. It was a minor defect and the opposite party could repair the same but deemed it better for the complainant to avail manufacturer warranty and get a new radiator. The complainant also appreciated the suggestion of the opposite party. Thereafter the opposite party received the new radiator from Tata Motors Ltd., Pune and fitted the same to the vehicle. But unexpectedly the new radiator was also found slightly leaking. The opposite parties herein were prompt enough to order another one and ensured its replacement as early as possible on 24.5.2011. There is no delay caused by any act of the opposite parties and there was no negligence or laches on the part of the opposite party. The averment of the complainant that he is earning Rs.3,500/- per day is not at all believable and the allegation denied by the opposite party and the allegation of the complainant that he found it difficult to pay the loan instalments is also denied by the opposite party. The opposite party returned the vehicle after 37 days, after curing the defect of the vehicle and there is no deficiency from the opposite party and the complaint is vexatious and may be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
(cont.....3)
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4. The evidence consists of oral testimony of PW1 and Exts. P1 to P12 marked on the side of the complainant and oral testimony of DW1 on the side of the opposite parties.
5. The POINT :- The complainant produced evidence as PW1. Ext.P1 is the copy of RC Book of the vehicle. Ext.P5 is the true copy of the driving licence of the complainant. The vehicle is running as taxi and the copy of the taxi Contract Carriage Permit of the vehicle is marked as Ext.P11. As per PW1, he duly informed the opposite party about the radiator leak in the warranty period itself and it was deposed by the opposite party to PW1 that due to the lack of mechanic, the delay was caused to the repair of the vehicle. That matter was not at all deposed by the complainant as per the cross examination of the learned counsel for the opposite party. PW1 is not aware that whether the new radiator has been fitted to the vehicle. The defect of the speedometer of the vehicle was not cured. The matter was also informed to the opposite party and Exts. P2 and P3 job cards issued by the opposite parties shows the same. PW1 caused heavy financial loss because of the delay caused at the opposite party's service station and Ext.P10 is the copy of the finance scheme of Mahindra and Mahindra Financial Services Ltd. Ext.P12 is the statement of account of the vehicle loan received from the internet for the vehicle bearing Reg. No.KL-06-E-6607.
As per the complainant, after 4 months of purchase of the vehicle, the speedometer of the vehicle was not working and the radiator of the vehicle became leak, these matters were duly informed to the opposite party. But the opposite party never repaired the same. Ext.P3 job card issued by the opposite party also shows the same. Eventhough the radiator leak of the vehicle was not cured by the opposite party, it caused 37 days delay and the complainant who is a taxi driver and getting his livelihood from the earning of the vehicle, caused heavy financial loss and so that he was not able to pay the instalments of the vehicle loan. The vehicle was earning Rs.3,500/- daily and due to the speedometer complaint, he was not able to accept money from the customers, so that the vehicle could not ply for taxi. The contention of the opposite party is that the vehicle is running for taxi as commercial vehicle and the complainant is having more than one vehicle and drivers were appointed with them. But no evidence produced by the opposite party to show that the complainant is running many vehicles as taxi and appointed many drivers for the same. Ext.P11 permit shows that the vehicle is running as taxi. So the contention of the opposite party that the complainant is using the vehicle as commercial vehicle is not at all sustainable. Another contention of the opposite party that the complaint is not maintainable due to non-joinder of necessary party. The manufacturer is not a party to the litigation. On perusing the complaint and dispute of opposite party, there is no manufacturing defect alleged in the complaint. There is no report to show that
(cont...4)
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the vehicle is having manufacturing defect. There is no Expert Commission or any other expert opinion produced before this Forum to show that the vehicle is having a manufacturing defect. There is no specific allegation from the complainant in the complaint or affidavit that the vehicle is having manufacturing defect. The radiator leak or the speedometer is not working are not manufacturing defects. So the contention of the opposite party that the complaint is not maintainable because it is a non-joinder of necessary party is also not sustainable.
It is admitted by the opposite party that the vehicle is having radiator complaint and it was cured after 37 days. The contention of the opposite party is that it is only a minor defect and it would be cured by the opposite party within days. But as per customer satisfaction and as per the discussion with the customer and in the interest of the customer, a new radiator was fitted to the vehicle and delay was caused due to getting it transported from Pune to Thodupuzha, from the manufacturer of the 1st opposite party. When the new radiator was not fit for the vehicle and found it leak, another radiator was purchased from Pune and it was fitted to the vehicle. So that the delay has been caused for 37 days. But there is no evidence for the same. In the job card it is not reveals that the opposite party fitted new radiator to the complainant's vehicle and there is no bill or courier receipt for transportation produced by the opposite party that the radiator is transferred from Pune to Thodupuzha, or two radiators were transferred from Pune to Thodupuzha to the office of the 2nd opposite party for fitting in the complainant's vehicle. So the version of the opposite party is not at all believable. PW1 deposed that it is due to the lack of the mechanics in the workshop that the complaint was not repaired. Another dispute is regarding the Speedometer complaint. As per DW1, the manager of the opposite party, eventhough it is written in Ext.P3 that Speedometer complaint in the vehicle, while the mechanic of the opposite party inspected the vehicle, that complaint was not noted and there is no other complaint. It is deposed by the opposite party that if there is any complaint in the Audometer, it is difficult to calculate the the taxi fare, because it shows Km reading of the vehicle. Another contention of the complainant is that Ext.P12 statement of account of loan shows that the complainant is having dues in the finance of the vehicle, because of the delay caused to repair the vehicle. 37 days delay caused to the complainant's day to day activities because the vehicle was not plying. The complainant is a taxi driver and the vehicle was not plying, so that he was not able to pay the instalments of the vehicle loan. The learned counsel for the opposite party submitted that the finance of the vehicle has been due for more than 5 months and if the vehicle was at the opposite party's workshop for repair, what prevented the complainant to pay the other instalments of the vehicle. On perusing the Ext.P12 statement of account, it is written that cheque return charges received in the months of 23.2.2011, 28.2.2011, 22.3.2011, 19.4.2011, 20.5.2011, 16.6.2011 and 14.7.2011. As per the opposite party, they have repaired and returned the vehicle on 24.5.2011.
(cont....5)
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So we think that the vehicle was having finance due from 23.2.2011 onwards. So the due has been caused not only because of the delay caused by the opposite party at their workshop. But it is also admitted by the opposite party that the vehicle was delivered only after 37 days. So we think that the complainant who is a taxi driver and that delay may affect him and his family and so mental agony and financial loss caused to him. The version of the PW1 that the vehicle is plying about 700 Km per day and he was driving the vehicle for 30 Km per hour is not at all believable. So we fix an amount of Rs.3,000/- for the loss sustained to the complainant for the delay caused by the opposite party. Normally some time may be taken to the repair of the vehicle and there is no dispute regarding the repair of the vehicle by the opposite party. As per the complainant, the Speedometer was also not working and so the opposite party should repair the same with full satisfaction of the complainant.
Hence the petition allowed. The opposite parties are directed to pay an amount of Rs.3,000/- to the complainant for the non-convenience and loss caused due to the delay of repair and to pay Rs.2,000/- as cost of this petition within 30 days of receipt of a copy of this order failing which the amount shall carry 12% interest per annum from the date of default. The opposite party is also directed to repair the Speedometer of the vehicle with full satisfaction of the complainant within 15 days of receipt of a copy of this order.
Pronounced in the Open Forum on this the 25th day of August, 2011
Sd/-
SRI. LAIJU RAMAKRISHN (PRESIDENT)
Sd/-
SMT. BINDHU SOMAN (MEMBER)
(cont.....6)
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APPENDIX
Depositions :
On the side of the Complainant :
PW1 - Ganesan.
On the side of the Opposite Parties :
DW1 - T.V. Nixon.
Exhibits :
On the side of the Complainant :
Ext.P1 - Copy of the RC Book of the vehicle.
Ext.P2 - Copy of the job slip issued by the opposite party.
Ext.P3 - Copy of the job slip issued by the opposite party dated 24.2.2011.
Ext.P4 - Copy of the receipt issued by the opposite party dated 24.2.2011.
Ext.P5 - Copy of the driving licence of the complainant.
Ext.P6 - Copy of the taxi registration certificate of the vehicle.
Ext.P7 - Copy of the record of repairs carried out.
Ext.P8 - Copy of the tax licence of the vehicle.
Ext.P9 - Copy of the insurance certificate cum policy schedule.
Ext.P10 - Copy of the finance scheme of Mahindra and Mahindra Financial
Services Ltd.
Ext.P11 - Copy of the contract carriage permit of the vehicle.
Ext.P12 - The statement of account of the vehicle loan received from the internet.
On the side of the Opposite Parties :
Nil.
