SMT. RAVI SUSHA  : PRESIDENT

       Complainant has filed  this complaint   U/S 12 of Consumer Protection Act 1986 seeking to get an order directing  opposite parties to replace the vehicle with a new one having  no manufacturing defects or to  pay back the amount of Rs.1055995/- collected by the OPs from the complainant as price of the vehicle with interest to the complainant together with Rs.2,00,000/-  towards compensation and cost of the complaint

   The brief facts of the case are that the complainant is a society registered under the  Societies Registration  Act 1860 and its President is entitled to represent the complainant society.  The complainant had purchased a Tata Star Bus skool bearing  Engine No.497sPTC40EXY638375 and  chassis No.MAT455103C8E22893 made by Tata Motors,  for Rs.10,55,995/- was collected by 4^th OP .  The vehicle was taken  delivery on 21/6/2012.  After obtaining permit from the concerned authority, the  vehicle started plying  to take  the students from the remote area of Mahe and adjacent places.  But after about one month itself the vehicle  developed  some technical  defects and  complainant could not use the vehicle.  Thereafter the matter was reported  by the  complainant to the 4^th OP where the vehicle was delivered and as per the advice of the 4^th OP on 30/11/2012 the vehicle was garaged in the 5^th OP’s workshop .  The OPs are  aware  that the vehicle is now garaged as per the instructions of 4^th OP in their workshop and it is not taken back by the complainant as the defects  pointed out is not so far rectified and could not be rectified.  Even though one of the officials of 3^rd OP who was convinced of the defects agreed to replace the vehicle but they later retracted from the promises given by their officials.  The vehicle is leaning  towards right even if it is parked on flat surface.  Its free space around the right front tyre ie, the space between the ends of the tyre to the nearest point of the body varies from  that of the left front tyre.  The vehicle is meant and made by the OPs to take children of schools and it is purchased by the complainant for the said purpose and not for any commercial purpose as is well  known to the OPs.  In spite of the said facts the OPs have not shown the effort and  seriousness to manufacture the vehicle  without  defects.  Complainant further says that the safety standards of components and road worthiness as certified by the 1^st OP is not correct, perfect and proper as is apparent from the  above descriptions.   Complainant further submits  that the  operator  service book issued by the 3^rd OP is  that of TATA 410 EX and type of the vehicle is  entered in the vehicular particulars  is Markopolo 26+1 whereas in the tax invoice it is entered as Tata Star Bus skool 26+1 SLP 41034 BSIII.  Complainant submits that this also causes some doubts about the vehicle and the  requirements for an  school bus as prescribed by Govt. of India are lacking in the vehicle.  It is submitted that the OPs are bound to replace the vehicle as it suffers from the defects narrated above.  The vehicle is sold to the  complainant by making them to believe that it has no manufacturing defect.  Thereafter the complainant lodged a petition before the  District Superintendent of police and  as per  the directions on the   petition, the  Edakkad Police registered a crime against the 4^th OP as crime No.570/2013 under sec.420 of IPC.  Even there after  also there is no  positive approach on the side of the OPs either to replace the vehicle  with a new one without any manufacturing defects or to pay back the amount collected by the  OPs  from the complainant as price of the vehicle.  During the period of investigation  the Asst.Motor Vehicle inspector inspected the vehicle and submitted a report.  But without considering the report of the Asst. Motor Vehicle Inspector and under the influence of the OPs police has filed final report before the  court and referred the case stating  the ground  “Mistake of fact” without any basis on  9/5/2014.  Hence this complaint.

    After receiving notices, OPs 1&2filed joint version and OPs 4&5 filed separate version jointly.  OPs 1&2 in their version stated that the OPs 1&2 being the manufacturer of the vehicles, sell the vehicles to their authorized dealerships, here the  4^th OP, on principal to principal basis.  This OPs has been made to understand that there was no problem with the vehicle at the time of delivery and the complainant had taken the delivery after proper inspection and satisfaction  and the same ought to have acknowledged by the complainant in the  vehicle delivery  acknowledgment note.  It is seriously denied that there were technical defects developed in the vehicle within one month from the date of purchase.  After the purchase, the vehicle reported for the first time on or around 30/11/2012 at 6,166 kms for the purported complaints of hard steering, right pulling, clutch tight, bumper crack, outer rear view mirror broken complaints on wheels, engine oil leakage, complaints on gear box and rear  axle check up and was addressed by repairing leaf set, performing body  alignment, lathe work for leaf set and replacing , brake oil, mirror and front bumper under warranty.  The vehicle was repaired and a trial was taken by the workshop wherein the vehicle was found to be roadworthy.  The said fact was communicated to the complainant by the workshop and the complainant was requested to visit the workshop and take the delivery.  However , the complainant has refused to take the delivery of the vehicle.  Further submitted that the problems as raised were duly resolved by the workshop and at present there is no outstanding issue with the vehicle.  It is  submitted that the alleged contention of the complainant is against the terms and conditions of the warranty of the vehicle to replace it when there is no defect.  In this case also, whatever grievance has been brought by the complainant on 30/11/2012, the same was  attended and rectified satisfactorily under the warranty policy  free of costs by way of exceptional services provided by the workshop hence, there cannot be any question of manufacturing defect or deficiency in service meriting replacement of the vehicle.  Further stated that the Asst. Motor vehicle Inspector is neither an appropriate body under sec.13(1)( c) of the Consumer protection Act to give the expert report on alleged manufacturing defects of the vehicle in question nor having any  infrastructure to carry out such activities.  It is further stated that the alleged problems as raised by the complainant have been rectified by the service center and at present there is no outstanding issue in the vehicle.  The complaint is question has been filed after two years from the date of cause of action  first arose and hence , is barred by limitation. It is further submitted that the complainant has failed to make out a prima facie case against the OPs 1&2, hence the complaint is  to be dismissed.

    Ops 4&5 has stated that the present complainant, Sree Krishnan Bajan Samithi has no locus standi to file the complaint.  The vehicle was sold to President Raman memorial  UP school.  So the present complainant has no  authority to file the complaint.  Further the school authorities purchased  the bus for using  the same as school bus, they are collecting fees  from the students, thus the  vehicle is being used for commercial purpose, so  the present  complaint will not come under the purview of consumer disputes as contemplated under the  Consumer Protection Act..  It is admitted that the President of Raman memorial UP school purchased a bus  on 21/6/2012.  The averment in the complaint that after about one month of purchase, the vehicle developed  some  technical defects and  complainant could not use the vehicle and the vehicle entrusted to these OPs on 30/11/2012 was not  taken back as the defects pointed out   is not so far rectified and could not be repaired  are  false and denied .  In fact after 5 months of the delivery of the vehicle was brought to these OPs  for repair  for  the 1^st time  on 30/11/2012.  The defects reported and the accident damages over the body of the vehicle were repaired within 3 days after entrustment.  This was informed to the driver of the vehicle.  The vehicle had run 6166kms when it was brought  for repair.  The OPs  frequently contacted the driver, but the driver did not turn up for taking delivery of the vehicle. And further he enquired  whether  it s possible  to replace the vehicle with  another one having  power steering.  The OPs  expressed their inability to replace the vehicle as they are only the dealer and informed him to contact the manufacturer   for the said purpose. The driver wanted the vehicle replaced at any cost.  Thereafter the driver had a discussion on 19/1/2013 with the officials of the manufacturer and they also informed that it is not possible to replace the vehicle since the vehicle used for about six months.  The defects reported to these OPs on 30/11/2012 are repairable and the same was repaired  free from all defects.  Further the vehicle is having incurable and irreparable manufacturing  defects as narrated in the complaint, and the vehicle suffers from imperfection or short coming in the  quality, purity, standard and performance are false and denied.  It is submitted that the complainant lodged a false complaint before Edakkad police and by influencing the police they could manage to register a crime against OP.  The police after conducting a detailed enquiry rightly referred the case as Mistake of fact.  The defects as detailed in the complaint  as reported by  motor vehicle  Inspector are false and  denied.  There is no welding unit with  OPs .   Further submits that the welding allegedly noted by the AMVI may be carried out by the complainant from  any local workshop.  The  present complaint  is barred by limitation as per Sec.24 of Consumer Protection Act.  The complainant is not entitled  for any relief  and prayed  for the dismissal of  complaint.

      The complainant in proof  of the case filed affidavit  evidence of  P.P.Vinodan , elected as the President of Sree Krishna Bhajana Samithi, subsequent to  P.P.Anandan, who expired  after filing  of this complaint and got the documents marked as Exts.A1 to A20.  One witness also has been examined from the  side of complainant Mr.Shajan K.P, AMVI, Kannur , who had inspected the vehicle as per the instruction of police officer, Edakkad Police station in Crime No.570/2013 and prepared report , Ext.A13.  While the OPs 4&5 filed the  documents and were marked as Exts.B1 to B6.

      After that the learned senior counsel for the complainant and the learned counsel appearing for OPs 4&5 made oral argument.

      The first plea raised by the learned counsel of OPs 4&5 is that the complainant was not a “consumer”  as defined in the Consumer Protection Act 1986.  The contention raised by the OPs that the vehicle (bus) was purchased to  President, Raman Memorial UP School for using the same as school bus, they are collecting fees from the students for using the school bus.  Thus the vehicle is being used for commercial purpose.  Hence this complaint will not come under the purview of consumer dispute.

     With regard to 1^st plea, there is no dispute that the President  of Raman Memorial UP school purchased the bus in dispute on 21/6/2012.  Ext.A8 Tax invoice clearly shows that the receipt has been issued by OP.NO.3 in favour of the President of P.K.Raman Memorial UP school.  The evidence shows that the vehicle have not been purchased for plying  on hire or for resale and thereby it cannot be said that the vehicle was purchased for commercial purposes.  The evidence further  reveals that purchase of   bus  by the  school for the conveyance of the school children.  So the said purchase cannot be  said to be for  commercial purpose.  Thus the 1^st plea of OPs is answered in favour of complainant.

      Another plea raised by OPs is that the complaint is  barred by limitation as per Section 24 of Consumer Protection Act.  The complainant has filed IA 386/2015 for  condonation of delay of 361 days in filing the complaint.  This commission on consideration  of the  application filed  by the complainant  hold that the delay  has been properly explained by the complainant in the said petition which are reasonable.  So the delay of 361 days in filing the complaint has been condoned and admitted the complaint.

     The allegation of complainant is that  after about one month of  purchase of the vehicle itself developed  some technical defect in the vehicle and complainant could not use the vehicle.  The matter was reported to the 4^th OP and as per their  advise the vehicle was garaged in the workshop of 4^th OP and it is not taken  back the vehicle  by the complainant as the defects  ie leaning  towards right  even if it is parked  on flat surface is not so far rectified and could not be rectified.  Complainant alleged that its free space around the right front tyre varies from that  of the left front tyre.  Complainant has stated that even though one of the officials of 3^rd OP who was convinced of the defects agreed to  replace the vehicle but they later retracted  from the  promises given by their officials.

   Complainant further submits  that the  operator  service book issued by the 3^rd OP is  that of TATA 410 EX and type of the vehicle is  entered in the vehicular particulars  is Markopolo 26+1 whereas in the tax invoice it is entered as Tata Star Bus skool 26+1 SLP 41034 BSIII.  Complainant submits that this also causes some doubts about the vehicle.

   Complainant further alleged that the vehicle was sold to the  complainant by making them to believe that it has no manufacturing defect, but the vehicle is having incurable and irrepairable manufacturing defect.

   On the other hand OPs contended that allegation of complainant about incurable and irrepairable manufacturing defect of the vehicle is not correct.  Further stated that after 5 months of the delivery of the vehicle,  it was brought to OPs 4&5 for repair for the first time on 30/11/2012.  The defects  reported and the accident damages over the body of the vehicle were repaired within  3 days  after entrustment and informed  to the  driver of the vehicle but he didn’t taken back the vehicle.  He wanted to replace the vehicle  and OPs 4&5 expressed their inability to replace.  After that  the driver wanted the vehicle replaced and made discussions with the officials of the manufacturer and they also informed that it is not possible to replace the vehicle since the vehicle used for about six months.  OPs submitted that the defects reported on 30/11/2012 are repairable and the same was repaired the vehicle is free from all defects.

       In the instant case, as per the complainant, the only remedy is either to replace the vehicle or to pay the value of the vehicle, as he took the vehicle to the  service centre of OPs 4&5, the defect  in the vehicle could not be rectified.  It is also stated by the complainant that as the defect in the vehicle could not be removed  and , as such, the vehicle is standing idle in the workshop of OPs 4&5 and the complainant  is deprived from the  using of the vehicle and hence hired other vehicles for the  conveyance of the children.

       Here the question to be decided is whether the  subject vehicle is having manufacturing defect and the same is proved  by the complainant?

       The complainant  has submitted Ext.A13, the report  prepared by the Asst. Motor Vehicle Inspector, during the period of   investigation in crime 570/2013 under section 420 IPC by the Sub Inspector of police, Edakkad.  The Asst.Motor Vehcle Inspector noticed the defects with respect to the vehicle and reported that “ Front portion of the body is supported to the chassis frame by welding which is not perfect(locally welded) and found totally rusted.  It is not complies manufacturers specification.  According to manufacturers body building guide lines it is clearly specified that the body should be rigidly mounted to the chassis frame and must flex with frame.  Do not drill or weld chassis frame or remove any rivet for body building.  But in this case the conditions are not complied. Front right side body support to the chassis frame is done by welding and it is not perfect(local welding) and found crack developed.  While inspecting , when the vehicle was placed in a level plane ground, it has been found that front  right side body portion of the vehicle is having comparatively less ground clearance.”

     On perusal of Ext.A13, the expert has specifically mentioned that the vehicle is not complied manufacturing specification and  he has also noticed when the vehicle was placed in a level plane ground, the front right side body portion  of the vehicle is having comparatively less ground clearance.

      The expert has been examined as PW2 and was subjected to cross-examination by OPs 4&5.  During evidence PW2 categorically deposed that the front right side portion of the vehicle shows leaning and the vehicle is having manufacturing defect.  Though PW2 has been cross-examined, nothing could be elicitated by the OPs against the findings of the expert from Ext.A13.  Thus the complainant’s allegation about the defects of the  vehicle is proved through Ext.A13.  Here it is to be noted  that neither of  the OPs tried to take any steps to establish their contention that the defects shown in the vehicle are not manufacturing defect and can be rectified.  Hence there is no material evidence available before us to discard Ext.A13 expert report.  Hence we accepted the findings recorded by the Expert Asst. Motor  Inspector(PW2) in Ext.A13 report as it is an authenticated report prepared by an responsible govt. officer.  Moreover there is no  dispute that the defect is found in the  vehicle within the  term stipulated in warranty obligation.  Here OPs  contended that the  defects over the body of the vehicle were repaired within 3 days after entrustment  on 30/11/2012 and was informed to the driver of the vehicle  many times and contacted  frequently, but he was not willing to take back the vehicle.  In order to establish the said  version, no piece of evidence is available  before us.  If the version of OPs  is correct, then OPs could have sent letter  to complainant demanding to take back the repaired vehicle.  Further OPs contended that from the said date of entrustment of the vehicle on  30/11/2012 the complainant demanded to replace the vehicle. Further on 19/1/2013 itself  complainant’s side made discussion with officials of 3^rd OP to replace the vehicle, but the OPs were not ready to the complainant’s demand.  For proving  the said version also, no evidence is available before us.

       For reasons stated above, we cannot believe and accept the  version of OPs that the vehicle has only curable defects and there is no manufacturing defect in the vehicle and it has been rectified on 30/11/2012 itself.  Further it is to be noticed that none of the OPs tendered oral evidence before the commission.  Thus considering the whole evidence oral and documentary  especially expert report, we are of the opinion that the vehicle is having manufacturing defect and the defect as noted cannot be rectified completely.  Since the complainant is using the vehicle for the conveyance of children in their school, we cannot insist to take back the vehicle after repair work.  Moreover, there is no meaning  to direct OPs to repair the vehicle in dispute in this belated period after 10 years  and handed over to  complainant.  So we are of the view that to direct them  to  repay the value of the  vehicle to the complainant. Here there is no dispute that the value of the vehicle is Rs.10,55,995.00/-(Ext.A8). Since there is manufacturing defect, the OPs 1 to 3 are liable and  authorized dealer  OPs 4&5 cannot wash off their hand after selling a defective vehicle to the customer.

   In the result,  complaint is allowed in part.  Opposite parties 1 to 5 are directed to pay the price of the vehicle  Tata  Star  Bus having Reg. No. PY-03-A-0370,  Rs.10,55,995/- to the complainant.   Opposite parties are also directed to pay Rs.50,000/- towards compensation to the  complainant for the monetary loss and mental agony and Rs.10,000/- towards cost of the proceedings of the complainant.  Opposite parties 1 to 5 are jointly and severally liable to comply the order within 30 days from the date of receipt of  this order.  Failing which Rs.10,55,995/- carries interest @7% per annum from the date of complaint till realization.  Complainant is at liberty to execute the order as per the provisions in Consumer Protection Act 2019.   

Exts:

A1-RC dtd.31/7/2012

A2-Bylaw of society

A3-Photo Copy of Minutes Book dtd.16/1/12(subject to proof)

A4-Application form for purchasing vehicle

A5- School Registration Certificate

A6-List of necessary matters in school bus as instructed by Govt. of India

A7 series-Receipts issued by 4^th OP

A8-Tax invoice

A9-Service book of Tata motors

A10-Complaint to Dist. Police Superintendent

A11-Crime No.570/2018 of Edakkad police station

A12-Final report of Edakkad police station

A13-Report of AMVI(subject ot [proof)

A14-Docket order in No.2/21 of ACJM Court

A15- Stability Certificate

A16- Fitness certificate

A17-permit dtd.3/8/2012

A18- Minutes showing P.P.Vinod was taken  as  President

A19- Lawyer notice

A20- Reply notice

B1&3-Lawyer notice dtd.22/2/2013,10/5/2013

B2&B4-Reply notice dtd.18/3/2013,30/5/13

B5&A6-A.D.Cards

PW1-P.P.Vinodan- Complainant

PW2-Shajan.K.P- witness of complainant

PW3-M.C.Remeshan     -do-

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR