Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member
Heard Ms.Aditi Chavan-Advocate for the appellant and Mr.Kamlesh Kharade-Advocate for the respondent.
This appeal takes an exception to an order dated 30/09/2009, passed in consumer complaint no.16/2009, Mr.Sadashiv Kishan Lokhande through his power of attorney holder Mr.Vithoba Ganu Hedulkar v/s. Manager, USL Shinrai Automobiles Ltd. (dealer of Toyota Kirloskar Motor Ltd.) and another; passed by District Consumer Disputes Redressal Forum, Central Mumbai (herein after referred as ‘forum’ for brevity). It is a case of alleged deficiency in service in respect of complainant’s Innova vehicle bearing Registration No.MH-01-TR-D-880, which the complainant alleged to have purchased from USL Shinrai Automobiles Ltd. for a total value of `8,91,409/-. Said vehicle admittedly is manufactured by M/s.Toyota Kirloskar Motors Ltd.
It is further alleged on behalf of the complainant –Sadashiv Kishan Lokhande that on 10/10/2008 when he had taken his brother to Sion Hospital for medical check up and, thereafter, when he was going to Mantralaya along with Minister for meeting, the vehicle had developed a mechanical fault on the way and, therefore, he had to hire another vehicle to reach his destination and, further, required to make an arrangement to tow the vehicle to his residence.
It is further contended on behalf of the complainant that since said vehicle had a mechanical breakdown within 1½ year of purchase, he assumed that there is manufacturing defect in the said vehicle. It is further contended on his behalf that said vehicle was under warranty for a period of three years or running of 1,00,000 k.ms whichever is earlier and at the relevant time vehicle was under warranty. Since the vehicle was neither replaced nor repaired, consumer complaint was filed on 20/01/2009.
Opponents appeared and denied all the allegations leveled against them. According to them, the complainant never brought the vehicle for scheduled servicing and negligently handled the vehicle. After the break down was reported, the vehicle was inspected and it was found on 15/10/2008 that the engine wiring of the vehicle was broken by the rats. This fact was brought to the notice of the complainant and it was also told to him that certain parts of the vehicle needs to be replaced. Even after replacement of the wiring since the engine did not start, therefore, further examination was carried out and it was found that there was tampering with Engine computer wiring and the glove box was removed and Injector no.1, Injector driver unit, engine mobilizer, Injector assay No.1, engine wire harness, IP wire harness, computer assembly key, computer engine control were not working properly and were required to be replaced. Estimate for all those repairs was communicated to the complainant by USL Shinrai Automobiiles Ltd. but the complainant did not give any response. Under the circumstances, there cannot be any deficiency in service on the part of dealer - USL Shinrai Automobiles Ltd.
The Forum partly allowed the consumer complaint and directed the opponents to repair the vehicle and return the repaired vehicle to the complainant and the repairs were directed to be carried out at their own cost. Further, it was directed to pay `10,000/- as compensation to the complainant and `5,000/- as cost. Feeling aggrieved thereby opponent no.1 preferred this appeal, while opponent no.2- Managing Director representing manufacturer of the vehicle preferred separate appeal which, as told at Bar, stood dismissed. Therefore, in this appeal we are only concerned with case as presented against original opponent no.1-Manager, Shinrai Toyota who represents appellant USL Shinrai Automobiles Ltd. Appeal is preferred by USL Shinrai Automobiles Ltd. being the aggrieved person.
We need not go into the issues of alleged manufacturing defect and the compensation awarded against Toyota Kirloskar Motors Ltd. -opponent no.2. We will also not go into the direction given as against opponent no.2- Toyota Kirloskar Motors Ltd. to get repaired the vehicle at its cost and return it to the complainant.
As far as case as presented against Manager –Shinrai Toyota (dealer of Toyota Kirloskar Motors Ltd.) USL Shinrai Automobiles Ltd., Worli Naka, Mumbai 400 018 is concerned, there is hardly any deficiency in service on the part of the said Manager is alleged. A specific case of tampering with the wiring and the machine engine is made out. There is evidence of Mr.Godrej dated 01/09/2009 supporting his case. Against this there is hardly any evidence to rebut the case presented on behalf of the complainant. There is affidavit of complainant’s power of attorney holder dated 15/01/2009 which is affirmation in form of verifying the complaint and another affidavit dated 02/09/2009 which is termed as claim affidavit but a reproduction of the complaint.
Furthermore, affidavit of power of attorney holder adduced on behalf of the complainant loses its credence unless he affirms specifically to the fact that statement made therein are within his personal knowledge. From the statement made in the affidavit it cannot be assumed that such personal knowledge is possessed by this power of attorney older. Referring to the warranty clause of the vehicle under the caption “What is not covered: Factors beyond the manufacturer’s control” it is mentioned as under:-
“Repairs and adjustments required as a result of misuse (e.g.) racing, overloading, over revving or similar improper usage, negligence, modification, alteration, tampering, disconnection, improper adjustments or repairs by non-authorized Toyota dealer and/or personnel, accident and use of add on Parts/materials not supplied by Toyota are not covered.”
Referring to this and on the basis of the facts, placed on record, it could be hardly a case which could be said as covered under the warranty. Therefore estimating cost of repairs and communicating the same to the complainant, but since the repairs could not be carried out since the complainant did not appreciate the same; no deficiency in service on behalf of opponent no.1 dealer could be alleged. Forum did not appreciate these facts properly and arrived at a wrong conclusion. For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 30/09/2009 as against the appellant, namely, opponent no.1- Manager –Shinrai Toyota, USL Shinrai Automobiles Ltd., stands set aside and in the result, the consumer complaint against appellant/opponent no.1 stands dismissed.
In the given circumstances parties to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 10th October, 2011.
