KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION  VAZHUTHACADU  THIRUVANANTHAPURAM

APPEAL NOS.154/2010 & 170/2010

                     JUDGMENT DATED. 22-11-2010

PRESENT

JUSTICE SHRI.K.R. UDAYABHANU               : PRESIDENT

SHRI. S. CHANDRAMOHAN NAIR                  : MEMBER

APPEAL NOS.154/2010

1.         P.S.N. Automobiles Pvt. Ltd.,

35/189, National Highway,

Palarivattom, Cochin.

                                                                                    : APPELLANTS

2.         PSN Automobiles,

Opp. Cosmopolitan Club,

17/104, Kadamcode,

Kunnathurmedu.P.O,

Palakkad-678 013.

(By Adv.Sri.V.Krishna Menon)

            Vs.

Reshmi.K.V, W/o Gopinath,

Elampulavil House,                                                : RESPONDENT

Pombra (P.O), Karakurissi,

Palakkad District.

(By Adv.Sri.K.Chandu Nair)

            APPEAL NOS.170/2010

1.         VE Commercial Vehicles Ltd.,

(Formerly Eicher Motors Pvt.Ltd.),

35/189, National Highway,

Palarivattom, Cochin.

                                                                                    : APPELLANTS

2.         Regional Manager,

Regional Office,

VE Commercial Vehicles Ltd.,

(Formerly Eicher Motors Pvt.Ltd.),

K.C.Enclave, T.Nagar,

Chennai-17.

(By Adv.Sri.V.Krishna Menon)

            Vs.

1.         Reshmi.K.V, W/o Gopinath,

Elampulavil House,                                               

Pombra (P.O), Karakurissi,

Palakkad District.

2.         P.S.N. Automobiles Pvt. Ltd.,

35/189, National Highway,

Palarivattom, Cochin.                                            : RESPONDENTS

3.         PSN Automobiles,

Opp. Cosmopolitan Club,

17/104, Kadamcode,

Kunnathurmedu.P.O,

Palakkad-678 013.

(By Adv.Sri.K.Chandu Nair)

                                        JUDGMENT

SHRI. S. CHANDRAMOHAN NAIR : MEMBER

The above two appeals are preferred from the order dated:30/1/2010 in CC.98/08 of the CDRF, Palakkad.  Appeal-154/10 is filed by the 3^rd and 4^th opposite parties and Appeal-170/10 is filed by the 1^st and 2^nd opposite parties.  As both the appeals emanated from one and the same order, we dispose of these appeals by this common order.   By the impugned order, the opposite parties are under directions to pay the complainant an amount of Rs.7,45,000/-  being the price of the vehicle with compensation of Rs.1.lakh within one month from the date of receipt of the order of the Forum below failing which the amount shall carry interest at 9% per annum from the date of order till realization.  It is aggrieved by these directions that the present appeals are filed calling for the interference of this commission as to the sustainability of the directions contained in the order.

2. For a fair disposal of these appeals the brief facts of the case are recapitulated as hereunder that the complainant has purchased an Eicher Bus -10.50 manufactured by the 1^st opposite party.  The bus was delivered on 22/6/2007 by the 4^th opposite party the authorized dealer at Palakkad District.  The complainant submitted that the same was purchased for earning her livelihood and that the vehicle developed over heating to wheel drums, recurring break downs and recurring engine missing while running.  It is the case of the complainant that though she took delivery of the vehicle on 22/6/2007 it could not be used effectively from the very beginning itself and she alleged manufacturing defects in the vehicle.  It is also her case that though she took the vehicle to the 4^th opposite party on several times for conducting repairs, the same could not be rectified due to inherent mechanical problems of the bus and that she incurred huge loss by arranging taxis when the bus was under repair for carrying students from Alanallur to Sreekrishnapuram.  The further case raised by the complainant is that the 4^th opposite party realized charges for the spare parts also during service period and claiming the refund of the price of the vehicle, the complaint was filed with further prayers for interest at 12%, compensation of Rs.1.lakh and damages for the mental agony and sufferings along with costs.

3. Though notices were served on the opposite parties, the 1^st and 2^nd opposite parties did not file any version.  In the version filed by the 3^rd and 4^th opposite parties it was contended that the complainant could not be treated as a consumer as per the provisions of the Consumer Protection Act and that the opposite parties offered 3 labour free services to the vehicle and there was no unfair trade practice committed by them as alleged by the complainant.  The further case of the 3^rd and 4^th opposite parties was that the vehicle had no manufacturing defect and the amount collected during the free services was for changing the spare parts which would not fall under free services.  Contending that there was no deficiency of service or unfair trade practice, the 3^rd and 4^th opposite parties prayed for the dismissal of the complaint.

4. The evidence consisted of the proof affidavit filed by the complainant and EXts.A1 to A14 on the side of the complainant.  The Forum below appointed a commissioner to examine the vehicle and filed a report and the report filed by the commissioner was marked as Ext.C1.

5. Heard both sides.

6. The learned counsels appearing for the appellants vehemently argued before us that the Forum below had failed in considering Ext.C1 report in its correct perspective.  It is also argued that the Forum ought not have relied much on the commission report as the commission report itself was inconclusive to show that the vehicle had manufacturing defect.  Inviting our attention to the commission report the learned counsels canvassed for the position that the Forum below had gone wrong in accepting the commission report to be the proof for manufacturing defect of the vehicle.  The further contention raised by the counsels for the appellants is that the order of the Forum in directing to refund the value of the vehicle without considering the fact that the complainant was plying the vehicle for quite a long time is unjustifiable and untenable in the eye of law, natural justice and true facts of the case.  It is argued that the Forum below ought not to have directed for the refund when the vehicle was with the complainant itself and she was using the vehicle for her own benefit.  The complainants’ locus-standi was also questioned by the learned counsel on the ground that the complainant had purchased the vehicle for making profit and in such a situation the Forum ought to have dismissed the complaint in toto.

7. On the other hand, the learned counsel appearing for the respondent/complainant supported the findings and conclusions of the Forum below and submitted before us that the complainant had purchased the vehicle for earning her livelihood and the very aim of earning the livelihood was distorted by the opposite parties by giving a defective vehicle with the assurance that the vehicle would be trouble free while running.  Relying on the commissioner’s report he invited our attention that the commissioner himself had opined that though the repairs could be done the same would not be effective and the only course for solving the problem is the substitution of the vehicle with a new defect free one.  Supporting the order of the Forum below the learned counsel argued for the dismissal of the appeals with compensatory costs.

8. On hearing the learned counsels for the appellants and the counsel for the respondent/complainant and also on perusing the records, we find that it is the admitted case of all the parties that the complainant had purchased the disputed vehicle from the opposite parties and that the vehicle had problems from the very beginning itself.  The job cards and other documents produced by the complainant would show that the vehicle had to be taken to the workshop of the 4^th opposite party on several occasions and she had to spend money for repairs.  On a perusal of the commission report also we find that the vehicle had some defects while running as noted by the commissioner.  However it is to be noted that the commission report marked as Ext.C1 is incomplete in so many aspects.  It is noted that though the commissioner had observed certain defects he had not subjected the vehicle to a serious inspection and the report is filed after gathering details from the complainant only.  He has also reported that the problems could be cured by replacing the relevant defective systems from time to time.  He has not stated as to why the problems could not be cured and the only solution is the substitution of the vehicle with the defect free new one.  The learned counsel for the appellants argued before us that though they have not filed any objection to the commission report, the commission report cannot be accepted as conclusive proof for fastening liability on the opposite parties to refund the value of the vehicle.  We find some force in the said arguments of the learned counsels. It is to be found that the complainant had been using the vehicle all these years and she was in possession of the vehicle though with certain defects.  It is a settled position that if manufacturing defects are not proved conclusively it will be illegal and unjustifiable to fasten liability on the manufacturers/dealers to refund the price of the vehicle after having used the vehicle for quite a long time.  However it is also noted that the vehicle had so many defects and the opposite parties were not successful in completely curing the defects as and when the defects were brought to the notice of the opposite parties.  The Forum below has awarded Rs.1.lakh towards compensation apart from the direction to refund the value of the vehicle.  We are not inclined to uphold the direction to refund the price of the vehicle.  But it is also pertinent to note that the complainant had undergone difficulties in using the vehicle trouble free at least for first few years.  In the said circumstances we feel that it will be just and proper to direct the opposite parties to pay another sum of Rs.1.lakh also towards compensation along with the compensation already awarded by the Forum below.

In the result both the appeals are allowed in part, thereby the opposite parties are directed to pay Rs.2 lakhs as compensation to the complainant/1^st respondent within 2 months from the date of receipt of this order failing which the amount shall carry interest at 9% per annum from the date of filing the complaint till the date of payment.  In the nature and circumstances of the present appeals the parties are directed to suffer their respective costs.

S. CHANDRAMOHAN NAIR : MEMBER

JUSTICE K.R. UDAYABHANU: PRESIDENT

VL.