By Sri. MOHANDASAN.K, PRESIDENT
1.The complaint in short is as follows: -
The complainant who was working in abroad for last five years, purchased a
tipper lorry on 26/10/2017 for Rs. 12,89,972/-with his earnings and availing loan from HDFC Bank. The complainant further spent an amount of Rs. 3,00,000/- for modification of the vehicle. Unfortunately, within few months of purchase, it was noted oil shortage, over sound, reducing coolant, drums scratch, jerking of the body etc. The complainant repaired the vehicle spending a lot of money on several occasions. The opposite party dismantled engine of the vehicle. The complainant sent messages including photos to the opposite parties since not subsiding the defect of the vehicle. The opposite parties came to the residence of the complainant and while running the vehicle to examine the defect. The complainant lost several chances for undertaking the work to the vehicle. He was subjected for scolding by the customers, he was unable to repay the loan amount. There was breakdown to the vehicle and the trips were cancelled. The several times the people of opposite party came to the complainant assuring rectifications of defect but they did not comply the same. The complainant submits that the warranty period of the vehicle expires during the month of November 2019. Hence complainant pray for compensation of Rs. 19,00,000/-.
2. On admission of the complaint notice was issued to the opposite parties and both opposite parties entered appearance and filed version.
3. The first opposite party contented that the complaint is not maintainable either under law or on facts and circumstances and the complaint is liable to be dismissed in liminie. Opposite party is submitted that the complainant is not a consumer and there is no negligence, carelessness, or deficiency in service on the part of the opposite party at service point of time.
4. The opposite party inspected the vehicle, verified, and managed by the service point as per the universally accepted standard protocol, bestowing all care, caution and attention. The complainant approached the Commission without clean hands suppressing true facts, correct and material facts and has set out untenable, unsustainable, and misleading allegations and claims. The attempt of the complainant appears to be to make unjust enrichment at the expense of the opposite party.
5. The first opposite party submitted that the complainant purchased tipper not for earning his daily bread. But he employs drivers and supporters for its utility and is registered as a commercial vehicle. The complainant clearly specified in complaint that he had to hear curse from the customers and which would be clear that the vehicle is being used for rent and for other utility and is out of the purview of Consumer Protection Act.
6. The opposite party further submitted that the complainant has not produced any records in his possession. The production of the same would belie and discredit the case and claim of the complainant. The complainant in the fairness of things ought to have produced all the documents or ought to have described the facts with date, job card numbers and or invoices raised time to time.
7. The opposite party submitted that they made efforts to have direct discussion with the complainant but was turned down. It is submitted that the tipper of the complainant is used mercilessly without any rest or respect to the vehicle in most dreadful manner to the vehicle, other vehicles and people at large. It is submitted that these sort of vehicle are being used relentlessly for transportation of sand, mud, quarry waste, other alternate articles, granite , laterite etc without any valid permit or rather take one permit and use it multiple times etc. The opposite party submit that from the records, it is apparent that most of the complaints are appeared due to external factors or that of rash and negligent manner of utility etc. The alleged defects are apparently due to those factors but the first opposite party taken care all that within the warranty period without reporting its misuse. The vehicle is seen used in very high RPM utilising all its maximum power through out to fetch the maximum benefits.
8. The opposite party submitted that they are not connected with loan transaction with HDFC finance worth Rs. 12,89,972/-. But it appears vehicle is extensively used for transportation of mud for any materials with high and optimum torque and without rest is identified from the vehicle history known to opposite party.
9. The vehicle was taken for service on 16/12/2017 @ 7983 kms and all his complaints reported were checked and corrected by the first opposite party and is reliably learn that there were no complaints reported 02/02/2018when the vehicle came of 15000 kms service @ 15327 kms. There it would important to specify there are times restrictions for the use of tippers in open road due to the known unhealthy driving habits and accidents mooted by the drivers. It is also seen that the vehicle is used by a driver without direct access of the owner of the vehicle. The complainant thereafter approached on 31/10/2018 @ 38554 kms with similar complaints and those were also rectified by the first opposite party with reasonable care and caution. The extensive utility of the vehicle without adhering his capacity and load bearing with high RPM and torque and without proper day to day maintenance caused the standard works to the vehicle. Subsequently, when the vehicle came for 45000 kms service, the vehicle was without any complaints. It is submitted that there would be running repairs for the vehicle according to its utility and this vehicle was extensively used without giving respect to its machine.
10. The opposite party denied that there was no higher oil consumption, sound from turbo, reduction of coolant, scratch on drums, and vibration of vehicle during plying occasioned etc. The opposite party not admitting the averment that complainant met expenditure for repairs and engine was dismantled etc. The opposite party submitted that the complainant raised certain complaints and the opposite party arranged physical verification of the vehicle through experts even from the house of complainant and also at his work site. It is submitted that the vehicle used in highly gradient terrain where there is no road except those used for excavators, earth movers & shakers, rock breakers & hammers and rock splitters. The driver of the vehicle was taking the vehicle to such extended areas for making extra gains without considering the capacity of vehicle, calibre and power of engine and sizes of tyres. The opposite party extended support with good advice to use in moderate manner. It is submitted that the vehicle is not a machinery to be used as an exactor or earth mover or a rock splitter or breaker. The vehicle performed as if a truck, which are utilised for such utility as stated. For such usage, the vehicle should have multiple axles with high clearance with heavy tyre size and should have very high hydraulic system to step up and step down the vehicle. Using the subject vehicle instead of high-rise truck vehicle can never be a substitute but still the performance of the vehicle was good in length and breadth. The opposite party submitted the service point made necessary corrective measures for the vehicle with good heart and courtesy and the vehicle is good and perfect or its normal intended utility obviously cannot be used as a substitute for high rise or lifted trucks.
11. The opposite party contended that there was no any manufacturing defect to the vehicle and there was no break down services at many occasions as stated by the complainant. But the drivers of the vehicle misused the vehicle without any modesty to the vehicle, engine or to any of its modalities. It is submitted due to persistent such use certain running repairs caused and those were rectified properly and gently by the opposite party.
12. It is admitted warranty period of the vehicle was expired by this time. It is submitted the vehicle is used by complainant for enriching himself without any of reasonableness and the same is suffered much pain without any respect it its machine or vehicle. The opposite party attended by the vehicle time to time. When the vehicle brought for checking with any of his service centre and if the vehicle is brought for checking, the opposite party ready to arrange a detailed inspection and shall report the present condition. The opposite party submitted the vehicle was not at all in any control of this opposite party or of service point and even not within in the control of owner of the vehicle. The vehicle was not having any inherent defects and the vehicle is working satisfactorily. It is submitted that the opposite party is ready and willing to conduct an inspection of the vehicle, on granting permission and shall report every aspect of the vehicle and if defects are required to be repaired, shall furnish the details with its estimates and shall carry out as envisaged under law. The opposite party submitted there is no deficiency of service on the part of the opposite party and there is no cause of action for the complaint and there is no grievance to redress, the allegation of unfair trade practice is baseless and so the prayer is to dismiss the complaint and to award compensatory costs to the opposite party.
13. The second opposite party also filed version in tune with the first opposite party. The second opposite party is a dealer of the manufacturer and the first opposite party is set up the service facilities to cater the needs of the persons who purchased the vehicle manufactured by the first opposite party as per due authorisation. The manufacturer had given training to the service personal and promised to provide necessary spare parts for repair. The service centre provides on service as directed and monitored by the manufacturer. Hence the second opposite party submitted that they are unnecessary part to the proceedings.
14. The opposite party contended that complaint is not maintainable, the complainant is not a consumer and the vehicle is used for commercial purpose. It is submitted there is no case for the complainant that, he purchased the vehicle for his livelihood. The complainant purchased the tipper lorry for commercial use and it was found that, he is using the vehicle to carry rubble, granite, earth, quarry products and heavy loads. The vehicle used in quarry and like premises to carry heavy load with the engine in its full power all the time. No cooling period was given for the vehicle and it was found that, the use of the vehicle was not as per specifications. These things were noted by the second opposite party during first inspection after delivery and subsequent inspection on getting the mail. All details of use and precautions are explained to the complainant and his paid drivers and other employees. But the complainant was not cared about the conditions of the vehicle.
15. It is submitted that the complainant purchased tipper lorry for commercial use on 26/10/2017, which is manufactured by the first opposite party and which do not have any inherent manufacturing defects. The vehicle is intended to operate on reasonable motor terrain and the load limit mentioned in the owner’s manual. The vehicle was having a warranty of 24 months or 150000 kms which comes earlier. After the warranty paid services, it was informed in person that the services are payable as per the norms of company. The filing of the complaint after the warranty period is with ulterior motive.
16. On 16/12/2017 the complainant produced the vehicle for service and it was found that the rubber insulation, gasket top cover, gasket, etc are tampered. It is informed the complainant tried to do some repair from outside and it was not perfect. The opposite party changed rubber insulation, paste was applied, gasket top cover was changed, splint pin was replaced, gasket was changed. These things were after defect of extensive use without giving proper time for cooling the engine etc. It is submitted that the driver had revealed the vehicle happened to fell in a ditch and with the help of other heavy movers, the vehicle was retrieved. The parts were replaced and the cost of the spares, and labour charges were collected on 18/12/2017 after the repair. The opposite party had cautioned the warranty conditions and it was informed that; the use should be careful. To keep up the goodwill, these services were provided though the same is not legally available to the complainant.
17. The driver of the complainant produced the vehicle for service on 05/02/2018 and it was seen that valve kit, cylinder gasket, kit lining set, primary element, secondary element, central bold front, centre bold rear, etc need repair. Some bolts and nuts were to be replaced. The repairs were done free of cost under warranty. The same were replaced after informing the complainant. It was convinced the complainant that these repairs are after effects of extensive careless usage. The vehicle delivered is having a tolerance level and the worker of the complainant was using the vehicle in a negligent manner without any precautions. It is submitted that the vehicle is used negligently and the workers are not caring the need of the vehicle. The complainant had done many acts against the agreed warranty conditions and the complainant was least bothered about it.
18. The vehicle was produced for service on 24/03/2018 and it was seen that the air hose, clutch, bush, hub front, etc needs repair and replacement. The same was also done and necessary items replaced under FOC. Again, the vehicle was produced for regular service on 30/05/2018. On that day it was noted that the gasket of the top cover, brake, nuts, hose clamps etc needs service and the same was done. The vehicle was produced by the driver and the vehicle is extensively used and the kilometre run was seen less comparing with the wear and tear. The complainant was using the vehicle in rough terrain and used to run with heavy load on non-motor able terrain. Then, the need for proper service and care is informed. The vehicle was again produced for regular service on 31/10/2018 and thereafter on 13/12/2018. On 27/12/2018 the vehicle reported with a broken head lamp and the same was replaced. On 30/01/2019 the vehicle was produced for service was done. The vehicle was produced for service on 25/02/2019 and it was found that, radiator cap, acceleration, switch etc need repair and the same done. The vehicle was again produced on 29/03/2019 and on 05/04/2019. The opposite party had given due service with proper care and caution, the gasket head cover need repair and the same was done. On 07/06/2019, the vehicle was produced for service and usual service was done. Some rivets, brackets etc was seen damaged in use and the same was replaced. In order to keep good will, service is provided with much care and caution.
19. The opposite party submitted that the vehicle was delivered to the complainant is not having any manufacturing and the repair need was after effect of his extensive improper use. The complainant used to send emails to the company alleging many facts and he told to the opposite party that he is creating evidence against the company. On getting each mail, the opposite party was directed to inspect the vehicle and found that the complaints are not existing. On inspection it was found that, the complainant is using the vehicle to move heavy loads of different sizes. The use was not scientific involving high risk and expertise. The complainant was trying to make a dispute with the manufacturer and he stated that, he had made many out of this earlier. It is submitted that the opposite party never thought that, the complainant does all these with ulterior motive.
20. The opposite party further denied the allegation that after the purchase of the vehicle, it was scene that, the oil level is dipping fast, sound from turbo is increasing, coolant is decreasing, there is vibration for the vehicle etc are false and so denied. The opposite party is not aware about the service availed from Valanchery service centre and no such history is seen in service record, the averments that engine is repaired is incorrect and the same is specifically denied. It is submitted that there was oil leakage and it was informed that, the vehicle happened to fall in a ditch and it caused repair on the gasket. The complainant mistook the same was engine repair and so the allegation is incorrect. The averments that the vehicle had breakdown, has stranded in the road etc are incorrect. The opposite party submitted that the averments and allegation in the complaint are made with ulterior, avaricious, and vindictive motive. The cause of action alleged is not having any nexus with the actual condition of the vehicle and the entire averments and allegations are being falsehood and there was being due and proper service from the part of opposite party on each and every occasion, the complaint is liable to be dismissed with cost of the opposite party.
21. The parties to the complainant filed affidavit and documents. The documents on the side of complainant marked as ext. A1 to A20. No documents produced on the side of opposite party. Ext. A1 is the copy of RC in respect of vehicle No.KL-54J-8420, Ext.A2 is the copy of tax license issued by RTO Koyilandy dated 22/09/2014, Ext. A3 is the copy of driving license No. 54/1102/2004/ dated 01/03/2018 of the complainant, Ext. A4 is the copy of PAN card of complainant, Ext. A5 is copy of Aadhaar card, Ext. A6 is the copy of tax invoice dated 01/11/2017, Ext. A7 is the copy of tax invoice dated 15/12/2018, Ext. A8 is the copy of tax invoice dated 27/12/2018, Ext. A9 is the copy of tax invoice dated 30/01/2019, Ext.A10 is the copy of tax invoice dated 30/01/2019, Ext.A11 is the copy of tax invoice dated 26/02/2019, Ext. A12 copy of tax invoice dated 02/03/2019, Ext. A13 is the copy of Tax invoice dated 12/03/2019, Ext.A14 is the copy of tax invoice dated 10/04/2019, Ext.A15 is the copy of Tax invoice dated 10/04/2019, Ext.A16 is the copy of tax invoice dated 07/06/2019, Ext.A17 is the copy of tax invoice dated 07/06/2019, Ext. A18 series of mail and images sent by the complainant to the opposite party, Ext. A19 is the copy of job card tax invoice dated 29/09/2021, Ext. A20 is a CD.
22. Heard complainant and opposite parties perused affidavits and documents. The following points arise for consideration: -
- Whether there is manufacturing defect to the vehicle?
- Whether there is deficiency in service on the part of the opposite parties?
- Relief and cost.
23.Point No.1 to 3: -
The complainant alleged manufacturing defects to the vehicle. The allegation is that there is higher oil consumption, sound from turbo, reduction of coolant, scratch on drums, vibration of vehicle and that he spent expenditure after dismantling of engine etc. But the opposite party submitted that all those allegations can be seen baseless from the examination of service history of the vehicle. The opposite party submitted that the vehicle was brought for service on 16/12/2017 @ 7983 kms and all the complaints reported were checked and corrected by the first opposite party. It is further submitted that there were no complaints reported on 02/02/2018 when the vehicle was brought for service @ 15327 kms. The vehicle was subsequently brought to the opposite party on 31/10/2018 @ 38554 kms with similar complaints that those were also rectified by the first opposite party. The vehicle was brought for service while it was covered 45000 kms. But that time there was no any sort of complaints. Hence the submission of the opposite party is that the defects were not inherent one but was caused due to illegitimate use of vehicle and job card dated 02/03/2020 reflect the same. It is submitted by the opposite party that the complainant raised certain complaints and the opposite party arranged physical verification of the vehicle through experts even from the house of complainant and at his work site. The opposite party submitted that the vehicle used in highly gradient terrain where there is no road except those used for excavators, earth movers & shakers, rock breakers & harmers and rock splitters. The use of the vehicle was without considering the capacity of the vehicle, calibre and power of engine and size of tyres. Even then the opposite party extended support with good advice to use in a moderate manner. The vehicle is not a machinery to be used as an exactor or earth mover or a rock splitter or breaker. In short, the opposite parties as per the contention, the complainant used the vehicle for which the vehicle was not meant. The opposite party submitted that there no manufacturing defect to the vehicle and if the party will arrange, a detailed inspection can be and shall report the present condition.
24. In the light of the contention of the opposite parties, the complainant filed an application IA 116/2020 to examine the vehicle through an expert commissioner. But later the complainant himself endorsed that there is no further action is required in IA 116/2020. So, it can be seen that the complainant has not taken any steps to prove the inherent defects of the vehicle as alleged in the complaint. The documents produced shows that the vehicle was taken to the service centre various occasion, but it is not sufficient to establish a manufacturing defect to the vehicle. Moreover, the opposite parties got a contention that the vehicle was used for the purpose which the vehicle was not at all meant. The opposite parties also contented the vehicle had met with accident and fell in to ditch. So, the case of the complainant has not proved by the complainant through the expert evidence. In the absence of proper evidence to establish manufacturing defects, the prayer of the complainant cannot be allowed.
25. It is also pertinent to note that the opposite parties had provided service to the vehicle as and when required. The opposite party reported at the site where the defect was informed to the opposite party and there were arrangements for physical verification through experts even from the house of complainant and also at work site. So, there is no sustainable reason to hold deficiency in service on the part of the opposite parties.
26. In the light of above facts and circumstances, the complainant failed to prove the manufacturing defect of the vehicle and deficiency of service from the side of the opposite parties and so the complaint stands dismissed.
Dated this 28thday of April, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMANC., MEMBER
CPR MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A20
Ext. A1 : Copy of RC in respect of vehicle No.KL-54J-8420.
Ext.A2 : Copy of tax license issued by RTO Koilandy dated 22/09/2014.
Ext. A3: Copy of driving license No. 54/1102/2004/ dated 01/03/2018 of the
complainant.
Ext. A4 : Copy ofPAN card of complainant.
Ext. A5 : Copy of Aadhaar card.
Ext. A6 : Copy of tax invoice dated 01/11/2017.
Ext. A7 : Copy of tax invoice dated 15/12/2018.
Ext. A8 : Copy of tax invoice dated 27/12/2018.
Ext. A9 : Copy of tax invoice dated 30/01/2019.
Ext.A10 : Copy of tax invoice dated 30/01/2019.
Ext.A11 : Copy of tax invoice dated 26/02/2019.
Ext. A12: Copy of tax invoice dated 02/03/2019.
Ext. A13 : Copy of Tax invoice dated 12/03/2019.
Ext. A14 :Copy of tax invoice dated 10/04/2019.
Ext.A15 : Copy of Tax invoice dated 10/04/2019.
Ext.A16 : Copy of tax invoice dated 07/06/2019.
Ext.A17: Copy of tax invoice dated 7/06/2019.
Ext. A18: Series of mail and images sent by the complainant to the opposite parties.
Ext. A19 : Copy of job card tax invoice dated 29/09/2021,
Ext. A20: CD
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMANC., MEMBER
CPR MOHAMED ISMAYIL C.V., MEMBER
