KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 692/2009

                                 JUDGMENT DATED:06..01..2011.

PRESENT

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA                                    : MEMBER

1.         Hindustan Motors Limited,

Having its Regd. Office at:

9/1, R.N. Mukherjee Road,

Kolkata-700 001.

                                                                        : APPELLANTS

2.         The Manager,

Hindustan Motors Limited,

9/1, R.N. Mukherjee Road,

Kolkata-700 001.

(By Adv.Sri.S.S.Kalkura)

            Vs.

1.         Rev.Fr.Joseph Thonkkaraparayil,

Thonkkaraparayil House,

Kozhuvanal.P.O, Kottayam.

2.         Mr.Antony Mathew,

Thonkkaraparayil House,

Kozhuvanal.P.O, Kottayam.

                                                                        : RESPONDENTS

(By Adv.Smt.Asha.T.Nair)

3.         The Branch Manager,

Marikkar Motors Limited,

P.B.No.169, K.K.Road,

Kottayam.

(By Adv:Sri.Midhun Sree Mohan.V)

                                            JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

Appellants were the opposite parties 1 and 2 and respondents were the complainants and 3^rd opposite party respectively in CC.225/06 on the file of CDRF, Kottayam.  The complaint therein was filed alleging deficiency of service on the part of the opposite parties 1 to 3 in effecting service of the engine (turbo engine) which was purchased by the complainants from the opposite parties 1 to 3.  The complainants claimed to get the turbo diesel engine purchased by the complainants from the opposite parties repaired or to replace the same with a new turbo engine.  In the alternative the complainants claimed refund of the price of the turbo diesel engine amounting to Rs.1,71,442/- with interest at the rate of 12% per annum and compensation of Rs.25,000/- and cost.

2.      The opposite parties 1 and 2 entered appearance and filed joint written version denying the alleged deficiency of service they contended that the complaint is not maintainable as the same is barred by limitation; that the complainants have no cause of action against the opposite parties 1 and 2; that the complaint is filed after the expiry of the warranty period; that the relationship between the opposite parties 1 and 2 and that of the 3^rd opposite party/dealer is on principal to principal basis; that there is no privity of contract between the complainant and opposite parties 1 and 2; that the complaint is liable to be dismissed with exemplary cost of opposite parties 1 and 2.

3.      Third opposite party filed separate written version contending as follows:-

The complainants are not consumers and the dispute is not a consumer dispute; that the complainant purchased a turbo diesel engine from the 3^rd opposite party/dealer with warranty; that the warranty period has already expired; that the complainants used the turbo diesel engine for a period of 5 years and the present complaint is filed after the lapse of 5 years from the date of purchase of the turbo engine; that there was no deficiency of service on the part of the 3^rd opposite party/dealer; that the 3^rd opposite party never assured the complainant that the age of the turbo diesel engine is more than 80000 Kms.  The turbo diesel engine was purchased in the year 2001 and the 3^rd opposite party carried out the service during the warranty period and even thereafter.  The company which was manufacturing turbo diesel engine and its spares are not available in India and so the 3^rd opposite party was not able to repair the turbo engine.  The 3^rd opposite party returned the vehicle with the turbo engine not because of any fault on the part of the 3^rd opposite party and that it occurred purely due to the stoppage of manufacture of the turbo engine by the company which was manufacturing the turbo engines and spares.  Thus, the 3^rd opposite party denied the deficiency of service on their part and prayed for dismissal of the complaint filed against them.

4.      Before the Forum below, Exts.A1 to A10 and B1 to B3 documents were produced and marked on the side of the parties to the complaint in CC.225/06.  On an appreciation of the documentary evidence on record, the Forum below passed the impugned order dated:26^th September 2009 allowing the complaint in part and directing the opposite parties 1 and 2 to pay Rs.60,000/- as compensation to the complainant for deficiency of service on the part of opposite parties 1 and 2.  They were also directed to pay interest at the rate of 9% per annum from 24/6/2006 till realization with cost of Rs.1,500/-.  Hence the present appeal.

5.      We heard the learned counsel for the appellants/opposite parties and the respondents 1 and 2.  There was no representation from the side of the 3^rd respondent/3^rd opposite party.   The learned counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He vehemently argued for the position that there was no deficiency of service on the part of the appellants/opposite parties 1 and 2; that the turbo diesel engine manufactured by the appellants was having warranty for a period of 6 months or 16000 Kms whichever is earlier and that the warranty period has already been expired during 2001 itself and that the complaint filed in the year 2006 after the lapse of 5 years from the date of purchase of the turbo diesel engine is barred by limitation.  It is further submitted that there was no deficiency of service on the part of the appellants/opposite parties 1 and 2 in stopping the manufacturing of the turbo engine; that the Forum below cannot be justified in finding the appellants/opposite parties deficient in rendering service to the complainants.  Thus, the appellants prayed for setting aside the impugned order passed by the Forum below.  On the other hand, the learned counsel for the respondents 1and 2 (complainants) supported the impugned order passed by the Forum below and argued for the position that the vehicle had only covered a distance of 38000 Kms and that the non availability of the spares of the turbo diesel engine would amount to deficiency of service.  It is also submitted that the complainants incurred a sum of Rs.1,71,442/- for the purchase of the aforesaid turbo diesel engine which was fitted to the vehicle owned by the 1^st complainant.  It is submitted that the said vehicle with the turbo diesel engine became useless because of non availability of the spares of the said diesel engine.  Thus, the respondents 1 and 2 prayed for dismissal of the present appeal.

6.      The points that arise for consideration are:-

1.                             Whether the complaint in CC.225/06 was maintainable in law?

2.                             Whether the complainants in CC.225/06 have succeeded in establishing the alleged deficiency of service on the part of the opposite parties 1 and 2 (appellants), the manufacturers of the turbo diesel engine which was purchased by the complainants from the 3^rd opposite party, the dealer of the opposite parties 1 and 2?

3.                             Whether the Forum below can be justified in fastening liability on the opposite parties 1 and 2 (appellants) to pay compensation of Rs.60,000/- to the complainants (respondents 1 and 2).

7.      Point No.1:-

The complaint in CC.225/06 was filed alleging deficiency of service on the part of the opposite parties 1 to 3.  The opposite parties 1 and 2 were the manufacturers of the turbo diesel engine which was purchased by the 1^st complainant. The said engine was fitted to the old Ambassador car owned by the 1^st complainant.  The turbo engine was purchased on 31/3/2001 on a sale consideration of Rs.1,71,442/-. The said engine was fitted to the vehicle (Ambassador Car) bearing registration No.KRK-880.  The definite case of the complainants is that the turbo engine fitted to the vehicle was in need of repair and the complainants entrusted the said vehicle with the turbo engine with the 3^rd opposite party/dealer, M/s Marikkar Motors Limited, Kottayam.  The aforesaid entrustment was during September 2006 and that the 3^rd opposite party returned the vehicle to the 2^nd complainant without effecting the repairs on the ground that spare parts are not available.  It was also stated that the manufacturers stopped manufacturing of the turbo engine and its spares and so the 3^rd opposite party is not in a position to effect repairs for the turbo engine which was purchased by the 1^st complainant from opposite parties on 31/3/2001.

8.      The definite case of the opposite parties 1 to 3 is that the turbo engine was purchased on 31/3/2001 with a warranty for a period of 6 months or 16000 Kms whichever is earlier and that the warranty period has already been expired in September 2001.  So, they contended that the complaint filed in the year 2006 is barred by limitation.

9.      There can be no doubt about the fact that the complainants preferred the aforesaid complaint in CC.225/06 alleging deficiency of service on the part of the opposite parties because of their failure to effect repairs to the turbo engine which was fitted to the vehicle (Ambassador car) owned by the 1^st complainant.  The vehicle with the turbo engine entrusted with the 3^rd opposite party during September 2006 and the 3^rd opposite party/dealer and repairer returned the said vehicle without effecting repairs.  The reason or ground urged for not effecting the repairs to the engine was that spares are not available for effecting repairs to the engine.  The vehicle with the engine was returned on 29/9/06.  Immediately the complainants preferred the complaint in CC.225/06.  The said complaint was filed on 18/11/2006.  The cause of action for the said complaint has arisen on 29/9/2006 when the 3^rd opposite party returned the vehicle without effecting repairs by stating that the manufacturers namely the opposite parties 1 and 2 stopped manufacturing of turbo engine and its spares.  So, the complaint filed on 18/11/2006 can only be treated as not barred by limitation.  The cause of action for the complaint has arisen only on 29/9/2006 and within 2 months the complaint in CC.225/06 has been filed before the CDRF, Kottayam.  So, the complaint as framed is maintainable.  The case of the appellants that the complaint in CC.225/06 is barred by limitation is unsustainable.  This point is answered accordingly.

10.    Points 2 and 3:-

There is no dispute that the 1^st complainant purchased the turbo engine manufactured by the appellants/opposite parties 1 and 2 and the said purchase was effected through the 3^rd opposite party, the dealer of the opposite parties 1 and 2.  The said purchase was effected on 31/3/2001 on a consideration of Rs.1,71,442/-.  The above facts are not disputed by the parties to the complaint.

11.    Ext.A1 is the owner’s manual and warranty issued by the 1^st opposite party/the manufacturer of the turbo diesel engine.  Ext.A1 would make it clear that the said turbo engine was having warranty for a period of 6 months or 16000 Kms (whichever is earlier) from the date on which the turbo diesel engine is delivered and fitted in any vehicle not exceeding gross weight of 1800 Kgs by authorized dealer of the Company.  It would further show that the Company will replace or repair any part or parts which need replacing or repair by reason of defective workmanship or defective material under normal use, provided starting and operation procedure had been adhered to and complied with the maintenance schedule as per this manual (except rubber parts, fuel injection board and injectors, electrical connections and cables and other normal maintenance spares and accessories etc.).  The aforesaid warranty given by the manufacturer would make it clear that the warranty for replacement or repair any part or parts are only for a period of 6 months or 16000 Kms whichever is earlier.  A1 warranty would also show that the aforesaid turbo diesel engine was sold on 31/3/2001 and fitted on the vehicle bearing registration No.KRK-880 on 1/6/2001.  If that be so, the warranty expired by December 2001.

12.    The A1 warranty would not show that the manufacturers are bound to continue production of the said turbo diesel engine.  There is also no warranty for effecting repairs to the turbo diesel engine after the expiry of the warranty period.  Admittedly the 1^st complainant purchased the turbo diesel engine on 31/3/2001 and fitted on his vehicle on 1/6/2001.  It is also come out in evidence that the vehicle with the aforesaid turbo diesel engine had covered a distance of 38000 Kms.  The dispute with respect to the defective nature of the engine occurred only in September 2006.  There is nothing on record to show that prior to 2006, the complainants had any complaint regarding the working of the turbo diesel engine covered by A1 warranty.  It can be concluded that the complainants used the vehicle with the diesel turbo engine fitted to it for a period of more than 5 years.  So, it is not just or fair on the part of the complainants to insist the appellants/opposite parties 1 and 2, the manufacturers of the turbo diesel engine to continue manufacturing of the turbo engine and the spare parts even after 5 years.  There is no legal provision available for insisting the manufacturer to continue the production or manufacturing of a particular type of diesel engine.  The 1^st complainant who purchased the turbo engine on 31/3/2001had not been given any assurance that the manufacturer shall continue the manufacturing of the turbo diesel engine and its spare parts even after lapse of 5 years from the date of purchase of the engine.  It is also to be noted that the manufacturers had only given the warranty for a period of 6 months or 16000 Kms and that the 1^st complainant purchased the said turbo diesel engine by fully satisfying with the warranty given by the manufacturers for a period of 6 months or 16000 Kms and that the 1^st complainant purchased the said turbo diesel engine by fully satisfying with the warranty given by the manufacturers for a period of 6 months or 16000 Kms whichever is earlier.  It is to be noted that there is no reliable evidence on record to show as to when the vehicle covered a distance of 16000 Kms.  The complainants have no case that the manufacturers failed to render the warranty service as assured by A1 warranty.  So, the complaint filed alleging deficiency of service on the part of the opposite parties 1 and 2 is legally unsustainable.  The complainants have not succeeded in establishing the alleged deficiency of service on the part of the opposite parties 1 and 2.  The mere fact that the opposite parties 1 and 2 being the manufacturers of the turbo diesel engine stopped manufacturing of the engine would not amount to deficiency of service, in the light of the A1 warranty.  More over, the fact that the complainants used the vehicle for a period of more than 5 years would also show that there was no deficiency of service on the part of the opposite parties 1 and 2, the manufacturers of the turbo diesel engine which was purchased by the 1^st complainant on 31/3/2001.

13.    The 3^rd opposite party is the dealer of the opposite parties 1 and 2.  The 3^rd opposite party could not carry out the necessary repairs to the turbo diesel engine because of non availability of the spare parts.  It is not just or fair to direct the 3^rd opposite party/dealer and repairer to carry out the repairs without the necessary spare parts.  So, the Forum below has rightly absolved the 3^rd opposite party from the liability to effect repairs to the turbo diesel engine or to pay compensation to the complainants.

14.    The Forum below relied on the maintenance schedule appended to A1 warranty.  The mere fact that in the maintenance schedule it is stated that the engine requires replacement of timing belt after running of the vehicle for a distance of 80000 Kms cannot be taken as a ground to hold that the manufacturers had given assurance regarding life span of the turbo diesel engine for a period up to the engine runs for a distance of 80000 Kms.  It is also to be noted that the stipulations or guidance given in the maintenance schedule cannot be equated to warranty or assurance regarding life span of the turbo diesel engine.  It is also to be noted that it is stipulated in the maintenance schedule that fuel filter has to be replaced when the engine runs for a distance of 5000 Kms.  It does not mean that the life span of the turbo diesel engine is only for a period up to which the engine or the vehicle runs for a distance of 5000 Kms.  So, the finding of the Forum below that the manufacturer had given assurance for the life span of the turbo diesel engine up to 80000 Km s cannot be upheld.  The Forum below cannot be justified in fastening liability on the appellants/opposite parties 1 and 2, the manufacturers of the turbo diesel engine to pay compensation of Rs.60,000/- to the complainant.  It can be seen that there was no deficiency of service on the part of the appellants/opposite parties in their failure to manufacture turbo diesel engine and its spare parts even after the lapse of 5 years from the date of purchase of the turbo diesel engine by the 1^st complainant.  So these points are answered accordingly.

In the result, the appeal is allowed.  The impugned order dated:26/9/2009 passed by CDRF, Kottayam in CC.225/06 is set aside and thereby the complaint therein is dismissed.  The parties are directed to suffer their respective costs throughout.    

M.V. VISWANATHAN : JUDICIAL MEMBER

M.K.ABDULLA SONA: MEMBER

VL.