IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 31st day of July, 2015
Filed on 18.10.2012
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.337/2012
between
Complainant:- Opposite Parties:-
Sri. K.S. Prasad 1. Tata Motors Ltd., Third Floor
Kurikkom Thayyil Tutus Towers, NH Bye Pass Road
Pollethai P.O. Padivattom, Palarivattom
Kalavoor Village Cochin – 682 024
Ambalappuzha Taluk Represented by its Manager
Alappuzha
(By Adv. V.S. Bhaskaran) 2. Focuz Motors, Vandanam P.O.
Valanjavazhi, Ambalappuzha Taluk
Alappuzha, Represented by its
General Manager
(By Adv. Menon & Menon – for
Opposite parties 1 and 2)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant has purchased a SK 407 L.G.V. Tipper Lorry from the second opposite party who is the dealer of first opposite party. First opposite party is the manufacturer of the said Lorry. The complainant paid Rs.1,88,000/- to the second opposite party and a loan arrangement was made with Indus Ind bank, Alappuzha for Rs.7,20,000/- towards the balance price of the Tipper Lorry. The complainant had purchased the vehicle for the livelihood after raising funds from various means. The above vehicle has got 3 years warranty and the vehicle was plying on the road from 9.5.2012. Brake
complaint and steering complaint was caused to the vehicle on 25.5.2012 and the said defect was informed to the opposite parties and thereby the said Tipper Lorry was kept into the guarage of second opposite party. Believing that the said defect was cured it was taken back to the complainant and the vehicle was again break down at Cherthala Bye-pass on 30.5.2012. After one day the workshop assistant of second opposite party came at the spot of break down and repaired the vehicle, but it was not cured. On 29.6.2012 also the vehicle has got steering problem and much damage has been caused to the right rear tyre of the vehicle and on 11.7.2012 the vehicle was under over temperature and complaint had been seen in the hydraulic system of Jacky and the said defect was also informed to both the opposite parties and thereby the vehicle was rushed to the workshop of second opposite party as per the direction of first opposite party. On 10.8.2012 was also the steering complaint and Tip Jacky Hydraulic System complaint were noted and it created much difficulty to ply the vehicle and thereby the vehicle was kept in the custody of second opposite party from 10.8.2012 to 22.8.2012. Again due to steering complaint and brake complaint the lorry could not be able to move into the road and therefore the supervisor of second opposite party reached the house of complainant and took the vehicle into their workshop at Valanjavazhi and on the next day ie. on 27.8.2012 they taken back the vehicle to the complainant. Again on 10.9.2012 also due to the brake complaint the vehicle could not be moved and thereby and second opposite party took the vehicle into their workshop and on the next day they taken back the vehicle to the complainant. After that it was seen that both the front tyres were fully damaged and therefore the Tipper Lorry could not be in the working condition and hence the complainant was forced to take the vehicle to the second opposite party workshop on 24.9.2012 and the matter was informed to the first opposite party also and on 29.9.2012 the complainant was compelled to take back the lorry and the replacing of tyre was rejected by the opposite parties and thereby the complainant was compelled to give for retreading the front two tyres outside by taking his own money even within the warranty period and Rs.5200/- was spent for this purpose. The defect sustained to the vehicle is not reparable and it is purely manufacturing defect. Complainant has sustained huge loss, mental agony and financial loss. Alleging deficiency in service on the part of the opposite parties the complaint is filed claiming following reliefs:-
- The opposite parties may be directed to replace a new Tipper Lorry to the complainant or allowed to recover full cost of the vehicle of Rs.9,13,000/-.
- The complainant may be allowed to recover Rs.2,00,000/- for mental agony and sufferings and Rs.48,000/- towards the loss sustained in respect of the pendency of works for 16 days stated above.
- Complainant may be allowed to recover an interest for Rs.2,34,744/- towards additional amount due to the Indus Ind Bank and the penal interest.
- The opposite parties may be directed to pay of Rs.3000/- per day towards the loss sustained till replacement by a new vehicle as loss sustained and other incidental expenses may be allowed and this Hon’ble Court be found fit and proper.
2. The version of the first opposite party is as follows:-
The complaint filed by the complainant does not come under the ambit of consumer dispute as there is neither any manufacturing defect proved in the vehicle in question nor any deficiency in service being established against the opposite party. Complainant is not a consumer within the meaning of the term ‘consumer’ defined under the act. The vehicle purchased by the complainant is so highest quality and the complainant has taken delivery of the same after being satisfied with the condition of the vehicle. The opposite party has been prompt and swift to attend to the alleged grievances reported by the complainant under the warranty as and when reported. Therefore, they prayer as made by the complainant for replacement of the vehicle cannot be granted. The complainant has raised allegations malafide and ulterior motives. There has been no deficiency in service or unfair trade practice on the part of this opposite party.
3. The version of the second opposite party is as follows:-
The complainant is not a consumer as defined U/s 2(1)(d) of the Consumer Protection Act. Various complaint alleges to have developed in the vehicle and as sought to be highlighted in para 3 of the complaint petition are misconceived and without merit. The complainant having complained of steering problem with the vehicle, the service personnel in the workshop of this opposite party had inspected the vehicle and thereupon replaced the steering gear box and pump under warranty. The complainant/his driver had thereupon taken delivery of the vehicle after being convinced of the work done and expressing satisfaction over the same. It is submitted that thereafter till date the complainant has not complained of any problems with the steering of the vehicle. Hence the allegation of the complainant that the complaints of the steering have not been rectified till date is misconceived and without merit. As regards the alleged damage to the tyres it is submitted that the said damage had occurred only on account of the abuse of the tyres by the complainant/his driver. Tyres had been excessively inflated so as to carry over load. This had caused the excess wear of tyres. This opposite party had as a gesture of good will offered to replace the tyres on a prorate basis, however the complainant was not willing to accept the same. It is submitted that the alleged complaint relating to wheel over heating was also caused on account of the negligence / carelessness of the complainant/his drivers by overloading the vehicle. This opposite party however as gesture of good will replace the brake liners free of cost. The complainant/his driver had thereupon taken delivery of the vehicle expressing satisfaction over the same. The alleged complaint regarding the oil leak from the tipping jack had been attended to by the dealer of the said original equipment to the satisfaction of the complainant. The complaints with respect to the brake of the vehicle had been looked into by the service personnel of this opposite party and after conducting a detailed inspection, the brake liners had been replaced under warranty. In view of the above, it is submitted that there is no manufacturing defect in the vehicle purchased by the complainant. The allegation to the contra raise in para 4 of the complaint petition is therefore denied as misconceived and without merit. It is further submitted that in view of the facts as stated therein above, there has been no deficiency in service on the part of this opposite party. The complainant has raised the said allegation without any bonafides and with ulterior motives.
4. The complainant was examined as PW1. The documents produced were marked as Exts.A1 and A14. One witness was examined as PW2. The expert commission report is marked as Ext.C1. The first opposite party was examined as RW1. The second opposite party was examined as RW2.
5. The points that arose for consideration are as follows:-
1) Whether the complainant is a consumer?
2) Whether there is any deficiency in service on the side of the opposite parties?
3) If so the reliefs and costs?
6. Point No.1:- According to the complainant he has purchased Tipper Lorry for his livelihood after raising funds from various means. As per the decision cited in 2012 IV CPJ para 159 Hon’ble National Commission, “If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self employment such purchaser of goods is yet a consumer.” In view of the above decision, this Forum finds that the complainant is a consumer.
7. Point No.2:- It is an admitted fact that complainant had purchased vehicle from the first opposite party on 4/2012 under the dealership of second opposite party. It is also an admitted fact that the vehicle has got 3 years warranty. According to the complainant, brake complaint and steering complaint was caused to the vehicle on 25.5.2012 and the said defect was informed to the opposite parties and thereby the said lorry was kept into the guarage of the second opposite party. He had taken the vehicle believing that the said defect was cured and on 30.5.2012 brake complaint occurred and the vehicle was repaired. But it was not cured. On 29.6.2012 also the vehicle has got steering problem also damage caused to the right rear tyre of the vehicle. On 10.8.2012 also steering complaint occurred and the vehicle was kept in the custody of the second opposite party from 10.8.2012 to 22.8.2012. Again 27.8.2012, 10.9.2012, 24.9.2012, also steering complaint, tyre complaint etc. caused to the vehicle. According to the second opposite party when the complainant complained of steering problem with the vehicle, they inspected the vehicle and thereupon replaced the steering gear box and pump under warranty. They again stated that with regard to the damage occurred to the tyres it was due to the abuse of the tyres by the driver and the opposite party had replaced the brake liners free of cost. In addition to that the complaint regarding the oil leak from the tipping jack had been attended to by the dealer and thereby the defects regarding the brake of the vehicle had been cured. From the forgoing admissions by the opposite parties, it is clear that the vehicle purchased by the complainant had defects like steering problem, brake failure, oil leak, damage to the tyre etc. The repair order forms produced by the second opposite party as per the direction of this Forum which marked as Ext.X1 series show that the complainant had approached the second opposite party several times for curing the above mentioned defects. Apart from that an expert commissioner was appointed to inspect the vehicle and the expert commission report marked as Ext.C1 which shows that there is manufacturing defects in power steering system. The expert commissioner opined that, “it can be seen that the major part of the steering system have replaced by the manufacturer, the complaint was rectified only for a short period. The said vehicle model is provided with mechanical steering as standard fitment and power steering as an option. The case reveals that the quality of parts is questionable.” From the forgoing discussions, it is clear that the vehicle in question has still defects as alleged by the complainant. “Whenever a consumer goes for a
brand new goods like the vehicle his minimum expectation is that he would not encounter or face any inconvenience or hardship for few months or a year and if he had to take the vehicle time and again to the workshop for removing one defect or the other, he suffers immensely in terms of loss of time, loss of business, physical discomfort and emotional sufferings having not reaped the fruits of paying heavy amount for purchasing a new vehicle.” In the instant case the vehicle was defective one on the basis of the Ext.X1 series and Ext.C1. Large number of visits to the workshop from the date of purchase of the vehicle for removing some more other defects is sufficient to draw the inference that the vehicle is a defective one. Hence it is the bounden duty of both the manufacturer and the dealer to attend to the said defects and make it a defect free vehicle. In Ext.C1 it is also noted that, “ the tyres fitted on the front wheels were in a partly worn condition and showed no signs of wear due to incorrect toe in setting. The rear tyres four in numbers were retreaded and were fresh. At the time of inspection the steering angle adjustment bolt was found missing in the front tyre and was rectified. No defect was detected in the suspension system of the vehicle.” According to the opposite party the damage of the tyre occurred due to the abuse of the tyres by the complainant or his driver. The opposite party did not laid any evidence in support of their contention. The complainant produced Ext.A9 shows that complainant had spent Rs.5200/- toward retreading charges. This is to be refunded by the opposite party to the complainant. Based on the discussion above, we are of considered opinion that the vehicle of the complainant has defects and hence the opposite parties 1 and 2 are directed to cure the said defects and make it a defect free one.
In the result, complaint is allowed. Opposite parties 1 and 2 are directed to rectify all the defects in the vehicle at free of cost and give a clear cut certificate signed by a Senior Officer of the
manufacturer not below the rank of a General Manager declaring in categorically terms that the vehicle is free from any defects. The opposite parties 1 and 2 are further directed to refund the amount of Rs.5,200/- (Rupees five thousand only) towards tyre retreading charges. The opposite parties are further directed to pay Rs.10,000/- (Rupees ten thousand only towards compensation and Rs.3000/- (Rupees three thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the day 31st of July, 2015..
Smt.Elizabeth George (President) :
Sri. Antony Xavier (Member) :
Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - K.S. Prasad (Witness)
PW2 - Sunilkumar N.K. (Witness)
Ext.A1 - Customer order form
Ext.A2 - Temporary receipt dated 10.4.2012
Ext.A3 - Temporary receipt dated 14.4.2012
Ext.A4 - Copy of certificate of registration
Ext.A5 - Computer copy of repayment schedule of loan amount taken by
Complainant issued from Indus Ind Bank
Ext.A6 - Letter dated 20.8.2012
Ext.A7 - Registered letter dated 13.9.2012
Ext.A8 - Copy of letter dated 29.9.2012 and postal receipt
Ext.A9 - Bill for Rs.5200/-
Ext.A10 - Tax invoice issued from Focuz Motors dated 31.12.2012
Ext.A11 - Proforma invoice dated 13.3.2013
Ext.A12 - Temporary certificate of registration dated 13.4.2012
Ext.A13 - Copy of sale certificate issued from Focuz Motors
Ext.A14 - Copy of warranty terms & conditions
Ext.C1 - Commission report
Ext.X1 series - Repair order forms
Evidence of the opposite parties:-
RW1 - Mathew Zechariahs (Witness)
RW2 - Alex Alexander (Witness)
Pr/-
.// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-pg/-
