BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Wednesday the 19th day of April, 2006
CC.150/2005
V. Hajibaba, Driver,
Muslim, aged 35 years,
R/o Nandavaram Village & Mandal,
Kurnool District. . . . Complainant
-Vs-
1.The Asst. Branch Manager,
M/s Mahindra and Mahindra Auto
Motive Manufacturers Ltd.,
N.H.7, Kurnool.
2.M/s Mahindra & Mahindra Ltd.,
Rep. by its Managing Director,
Gateway Building, Apollo Bunder,
Mumbai-400 039. . . . Opposite parties
This complaint coming on this day for Orders in the presence of Sri M.Shivaju Rao, Advocate, Kurnool for complainant and Sri I. Anantharama Sastry, Advocate, Kurnool for opposite party No.1 and Sri.G.Nagalakshmi Reddy, Advocate, Kurnool for opposite party No.2, and stood over for consideration till this day, the Forum made the following.
O R D E R
(As per Sri.K.V.H.Prasad, Hon’ble President)
1. The CD case of the complainant is filed under Section 11 and 12 of C.P. Act, seeking a joint and several direction on the opposite parties to replace the defective vehicle with the a new defectless vehicle or return Rs.3,52,586/- (cost of the vehicle) along with 24% interest per annum, to pay Rs.50,000/- towards mental agony and to pay the costs of the complaint along with such reliefs which exigencies of the case demand, alleging the purchase of a 6 seater jeep of model CDR 650–D on 27-8-2004 from the opposite party No.1 for Rs.3,52,586/- and it was with warrant of 180 days for any mechanical and manufacturing defect in material or workmanship and within a few days after to the purchase the said vehicle was observed as pulling towards left side on application of breaks and the said was not rectified inspite of brining it his notice of the opposite parties during periodical servicing and the said conduct of the opposite parties is amounting to deficiency in service and providing a defective vehicle suffering with manufacturing defect and there by the said vehicle is not doing run properly and caused financial loss to the complainant and the opposite parties alleged conduct either to the rectify the defect nor replace the vehicle or return the price constrained the complainant to file this case.
2. In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite parties caused their appearance through their counsel and contested the case filing their written versions denying the cause of action and allegations of the complaint except the purchase of said vehicle, and there by any of their liability to the claim of the complainant and so seeks dismissal of the complaint with costs.
3. The written version of the opposite parties alleged the complaints reported were attended to the satisfaction of the complainant in all free services attended to said vehicle on 15-9-2004, 27-9-2004, 6-10-2004, 27-10-2004, 10-11-2004, 23-11-2004, 14-12-2004, 12-1-2005 and 3-2-2005 after a run of 4,272, 8,412, 10,945, 16,378, 19,434, 22,928, 28,246, 34,968 and 40,535 Kms respectively and at no time during said servicing any such complaint as to pulling of the vehicle to left side on application of breaks was reported and such a complaint was made only on 8-3-2005 covering by then a run of the vehicle for 48,279 Kms and no vehicle with any such defect since inception can run is about 6 months such a distance of about 50,000 Kms and there by deny the alleged manufacturing defect and negligence in their service and ensual of any financial loss to the complainant and the defect is that arose if any to the vehicle was on account of running the vehicle roughly on ketcha roads with over load without taking necessary cared causation even in proper maintenance of the said vehicle.
4. In substantiation of the contentions while the complainant’s side has taken reliance on to the documentary record in Ex.A1 to A5 besides to the sworn affidavit of the complainant and of three third parties and their replies to the interrogatories caused, the opposite party side takes reliance on the documentary record in Ex.B1 to B14 besides to the sworn affidavit of the opposite parties and third party and their replies to the interrogatories caused.
5. Hence the point for consideration is whether the complainant has made out any deficiency on the part of the opposite parties are alleging manufacturing defect in the purchased vehicle and there by the liability of the opposite parties to the claim of the complainant.
6. While the Ex.A2 is the office copy of legal notice caused to the opposite parties the Ex.A3 and A4 are the acknowledgements of the receipts of the said notice by the opposite parties 1 and 2 and the Ex.A5 is reply caused to the said notice of the complainant and the Ex.A1 is the operators manual pertaining to the said vehicle.
7. The complainant alleges in the complaint that the defect in said vehicle was observed within a few days of the purchase and inspite of brining it to the notice of the opposite party No.1 several times it was not rectified. But they did not place any such record which would substantiate the said contention except filing a self serving sworn affidavit appeal and one Sri. Nagaraju and his legal notice in Ex.A2.
8. The complainant takes reliance on to the third party affidavit of K.Satyanarayna a Mechanical Engineering Degree holder who alleges to have examined the alleged vehicle of the complainant on 1-9-2004 and the pulling of the vehicle left side on application of breaks was due to variance in measurements on left hand side and right hand side front and rear wheels both long longiditudenly and diaglolly and the said variance in measurement is a manufacturing defect. But the same does not appear to be acceptable as firstly the mention of his examination of the said vehicle of the complainant does not finds its place either the complaint averments or averments of legal notice, secondly his so called examination of the vehicle was not reduced in writing on the date of said inspection but only said to have been orally informed to the complainant and the fact of it doesn’t find in any record, thirdly it was filed without any such earlier basis, at the 11 hour during enquiry to suit the needs of the case, fourthly as he is not authorized to conduct any such inspection or observation during warranty period being his not an authorized person of the opposite party, fifthly when it is stated that in such a situation to the vehicle its driving is highly dangerous and risky and in contra to that the vehicle has a run of more than 40,000 Kms in all even there after and there by makes every reasonable doubt in authenticity of said observation and sixthly the so called inspection was done in an unauthorized place contra to the terms of warranty.
9. The complainant place reliance on the sworn affidavit of Shaiksha Vali a person claiming himself as a jeep mechanic and well versed there in as undergone sufficient training from Bajaj Tempo Company. His affidavit says the vehicle of the complainant is pulling to the left side on application of breaks in running condition and that is because defect in breaks, chassis and wheel alignment and said is the manufacturing defect. But his affidavit neither mentions the date of his inspection of the vehicle of the complainant to observe any defects nor there is any mention in complaint averments or sworn affidavit averments of the complainant as to the inspection of the said vehicle of the complainant by said Shaiksha Vali. From the unattested Xerox of certificate issued by Bajaj Tempo Senior Manager (Personal) the said Shaiksah Vali has underwent training at Pithampur Plant on Tempo traveler, RA 307 vehicle for a period of 3 days only i.e. from 16-5-1996 to 18-5-1996. The unattested Xerox of letter dated 14-5-1996 addressed by Sr. Manager (Services) of Bajaj Tempo Ltd., also says the same. The vehicle concerned in this case is neither a tempo traveler nor RA 307. But a jeep (6 seater) of model No.CDR 650 –D1 of Mahindra & Mahindra Company. Apart from the sufficiency of period of 3 days training to said Shaksha Vali to know all about all the vehicles, the said training being given on others specified vehicles than the complainant’s specified model the said Shaiksah Vali is not remaining competent to say of the defect of said vehicle especially when he is not an authorized person of the opposite party to say of the vehicles defects during warranty period. The unattested Xerox of a certificate dated 31-8-1994 issued by Proprietor Manikantan Auto works placed by said affidavitor Shakisha Vali is a mere conduct certificate as he does not say the nature of the work said person attended during said period of 8 years from 30th August 1987 to 31st August 1994 to feel of his experience in any specialized field and specialized vehicles and of any of his competency to inspect this type vehicle of the complainant. The affidavitor said Shaiksha Vali is neither providing the date of his said inspection of vehicle of the complainant nor their appears any cross reference of his inspection in complaint averments or sworn affidavit of the complainant nor their appears any authorized competency of said affidavit of to test the said type of vehicle of the complainant and the averments of said affidavitor does not say the possibility for having such a run of greater distances inspite of said defect that to when they are alleged as manufacturing defects as existing since its inception, the evidence of said affidavit are Shaiksha Vali remains of any help to the complainant’s case for laying any safe reliance.
10. Another third party affidavit, the complainant has taken reliance is that of a jeep driver by name C.Nagarju who claims to have accompanied the complainant at all times when the said vehicle was taken to opposite party No.1 for attending its complaints and finds its defect of pulling vehicle on to left side on application of breaks as manufacturing defect and as such the opposite party has not able to rectify the same. But his said version in the affidavit doesn’t appear to be believable as there is any supporting mention to said version either in the complaint averments or in the sworn affidavit of the complainant. Further his affidavit averments not inspiring any confidence of truth in his version as while the job cards in Ex.B1 show the vehicle was in running condition and by the last job card covered a distance of 54,971 Kms his affidavit says that on account of said defect the vehicle of the complainant was kept idle. This casts any amount of doubt on the bonafides of his statement.
11. The Ex.B1 is a bunch of job cards Number in 11 issued by the opposite party No.1 while attending the reported complaints of the complainant’s vehicle during the period in between 15-9-2004 and 3-4-2005. In the none of the said job card in Ex.B1, except of the tenth job card dated 8-3-2005, any such complaint as to pulling of the vehicle on application of breaks was reported as complaint to the opposite party No.1 for attending it. If the said defect to said vehicle is since inception and being felt since purchase there appears no reason as to why the said was not complained for being attended by the opposite party as the reason as to his illiteracy and innocence appears to be a lane excuse especially when the complainant is literate and signs his names and as reasonable prudent owner with all bonafidies of expectation of good running of the vehicle is to be diligent in seeing his complaint recorded properly in job card meant for attending the said complaint. Further if the said defect was persistently continued without being rectified inspite of its servicing under said job card there appears any bonafidies on the part of the complainant in issuing satisfaction certificates under Ex.B2 to B12 after attending the reported complaints in job cards mentioned in Ex.B1. Further to the defect of the complaint of the vehicle was not attended properly and even if the satisfaction certificate was signed by the complainant and delivered to the opposite party without understanding the matter therein, there appears any reason on the part of the complainant as to why he did not hesitate effectively for any legal remedy at the earliest point of time when he could sense the defect was not attended and rectified and there by really experiencing difficulty in handling the said vehicle. The issaul of Ex.B11 a satisfaction certificate issued for the complaint attended in job card dated 8-3-2005 of Ex.B1 implies the rectification of said defect by attending the said complaint properly as otherwise the Ex.B11 would not have been issued by the complainant and the alleged innocence and illiteracy of complainant in the circumstances doesn’t appear to be with any bonafidies.
12. While such is so the third party affidavit of B.Venugopal, who attended the reported complaints of job cards in Ex.B1 – says that the complaints to the vehicle of the complainant has arisen due to its improper maintenance without taking necessary percussion while driving the said vehicle on rough rural roads with over load passengers and not following the manual instructions and his instructions of maintenance given on 24-12-2004 which has to be followed periodically and they have led to consequention damages and other external problems to the vehicle and the delivery the vehicle after due attendance of the alleged complaints and their rectification after being satisfied by the complainant. Nothing much to discredit his reliability appears in his replies to the interrogatories of the complainant.
13. As per the Automobile Engineering Volume No.1 authored by Dr.Kirpal Sing – as noted in page No.35 & 36 the defect in frames have to be checked by means of a plumb line and the lateral and diagnal measurements of the frame should not differ by more than 7 or 8 mm. Even though the affidavit of Satyanarayana filed on complainant’s side says the lateral measurements differ in 3.7 Cms and dignal measurements by 72 Cms, the said mere variance in measurements cannot be attributed to any manufacturing defect as at page No.306 of same book assigns about 10 causes for pulling to one side and one of them is incorrect front wheels alignments and to come across the said effect the said alignment of front wheels is to be adjusted. Therefore, if the said pulling of vehicle to one side is occurring on account of incorrect front wheels alignment it is a rectifiable defect by adjusting them correctly and so cannot be said as manufacturing defect especially when the job cards envisages the complaint of wheel alignments also.
14. The learned counsel for complainant takes reference to the decision of Hon’ble National Consumers Disputes Redressal Commission, New Delhi in Bajaj Auto Ltd., and other V/s Anurag Kapoor reported in 2003 NCJ page 195 (NC) wherein the replacement of motor cycle was ordered when it was giving repeated troubles since purchase. But as there is no cogent material either in job cards wherein the reported complaints of said vehicle were attended to the satisfaction of the complainant, or in the conduct of the complainant at the happening and inconvenience suffered being not bonafidly agitated for a legal remedy at the earliest point of time when he could sense the defect was not rectified and made him to believe it as a manufacturing defect, the said decision finds a very little adaptability to facts and circumstances of the complainant’s case.
15. The learned counsel for the complainant draws the attention of this Forum to the decision of Hon’ble Delhi State Consumer Dispute Redressal Commission in Authul Bhartwaj V/s Maruthi Udyog Ltd., reported in IV (2004) CPJ page 368 wherein the refund of the cost of the vehicle was directed when the defect in the vehicle was not removed inspite of the vehicle being taken for ten times to the workshop during the period of ten months. But their being no cogent record in this case of the complainant to say that the recorded complaint in job card was not removed inspite of taking the said vehicle to the opposite party several times and on the other hand the satisfaction certificate in Ex.B2 to B12 implies the rectification of defects complained to the satisfaction of the complainant the said decision is also not remaining applicable to this case of the complainant for none similarity of circumstances.
16. Another decision cited by the learned counsel for the complainant is of Hon’ble Delhi State Consumer Dispute Redressal Commission in M/s Kinetic Engineering Ltd., V/s Sashidar Sarma and another reported in IV (2004) CPJ page 444 wherein the refund of the price of the vehicle with 9% interest ordered by the Dist. Forum was upheld in appeal when the said vehicle manufactured in September 1999 and sold in July 2001 was having wobbling problem since beginning was not rectified even after repairs and failure to produce technical expert in support of defense as gross deficiency and unfair trade practice . But in this case there being any record as to the complaint of pulling of vehicle on application of breaks since the time of its short usage after purchase and its any repeated reporting as complaint in job cards in Ex.B1 except a solitary mention to the tenth job card dated 8-3-2005 for the first time, and the attending of said defect reported on 8-3-2005 to the satisfaction of the complainant as appears in Ex.B11 and the affidavit of Technical Supervisor, B.Venugopal who has attended the reported complaints of the complainant’s vehicle to the satisfaction of the complainant is consistent and not suffering with any infirmities which can discredit the value of his affidavit version, the said decision is also having no applicability or adaptability to the circumstances of the complainant’s case.
17. Hence in sum up of the above discussion as the defect in the vehicle of complainant as was not made out as manufacturing defect and the story of the complainant and the material he placed as is not remaining believable the case as alleged is not remaining made out creating any liability of the opposite parties for the claim of the complainant.
18. Consequently, the case of the complainant being devoid of merit and force is dismissed with costs.
Dictated to the stenographer, transcribed by him, corrected and pronounced by us in the Open Forum on this the 19th day of April 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of Exhibits Marked for the complainant:-
Ex.A1 Operator’s manual issued by the opposite parties.
Ex.A2 Office copy of legal notice, Dt.2-4-2005 to opposite party No.1 and 2.
Ex.A3 Postal Acknowledgement by opposite party No.1.
Ex.A4 Postal Acknowledgement by opposite party No.2.
Ex.A5 Reply notice of opposite party No.1, Dt.26-4-2005.
List of Exhibits Marked for the opposite parties:-
Ex.B1 Bunch of Job cards (11 in numbers) Dt.15-9-2004.
Ex.B2 Satisfaction Certificate, Dt.15-9-2004.
Ex.B3 Satisfaction Certificate, Dt.27-9-2004.
Ex.B4 Satisfaction Certificate, Dt.06-10-2004.
Ex.B5 Satisfaction Certificate, Dt.27-10-2004.
Ex.B6 Satisfaction Certificate, Dt.10-11-2004.
Ex.B7 Satisfaction Certificate, Dt.23-11-2004.
Ex.B8 Satisfaction Certificate, Dt.14-12-2004.
Ex.B9 Satisfaction Certificate, Dt.12-1-2005.
Ex.B10 Satisfaction Certificate, Dt.3-2-2005.
Ex.B11 Satisfaction Certificate, Dt.8-3-2005.
Ex.B12 Satisfaction Certificate, Dt.7-4-2003.
Ex.B13 Operator’s manual of Commander 650 –D1.
Ex.B14 Manufacturer’s Warrant in page No.10.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri M.Shivaji Rao, Advocate, Kurnool.
2. Sri I. Anantharama Sastry, Advocate, Kurnool.
3. Sri G.Nagalakshmi Reddy, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties
