Date of filing: 16.06.2012.

Date of disposal: 30.11.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:

VIJAYAWADA, KRISHNA DISTRICT

Present: Sri A. M. L. Narasimha Rao, B.Sc., B. L., President

Smt N. Tripura Sundari, B. Com., B. L., Member

Sri S. Sreeram, B.Com., B.A., B.L., Member

Friday, the 30th day of November, 2012

C.C.No.98 of 2012

Between:

Nemalipuri Rajeswari, W/o Nageswara Rao, R/o. House No.1-36-14/A, Maruthi Nagar, Gujjanagundla, Guntur.

….. Complainant

And

1. The Branch Manager, M/s Automotive Manufacture Pvt., Ltd., Vijayawada Branch, Beside Chandana Grand, #40-15-9/13, Lakshmi Villa, Nandamuri Road, Brundavan Colony, Labbipet, Vijayawada, Krishna District.

2. Automotive MFRS Private Limited, Rep: by its M.D, 108, Bazar Ward, Kurla, Maharastra State.

3. The Branch Manager, Indusind Bank Limited, 9th Line, Aurndelpet, Guntur.

. … Opposite Parties.

This complaint coming on before the Forum for final hearing on 22.11.2012, in the presence of Sri Sarat Chandra Ravuri, advocate for complainant, Sri P. Rama Krishna Paramahamsa, advocate for opposite parties 1 and 2, Sri Pavan Kumar. P, advocate for 3rd opposite party and upon perusing the material available on record, this Forum delivers the following:

O R D E R

(Delivered by Hon’ble President Sri A. M. L. Narasimha Rao)

1. This complaint is filed under Section 12 of Consumer Protection Act, 1986 for a direction to the opposite parties 1 and 2 to pay Rs.7,00,000/- towards less earnings for 5 months and Rs.12,57,142/- towards loss of diesel due to defect in the vehicle sold to the complainant, to pay interest, to pay Rs.30,000/- towards deficiency in service, to pay Rs.10,000/- for mental agony and also for a direction to the 3rd opposite party (the financier) not to seize the vehicle from the complainant.

2. The averments of the complaint in brief are as follows:

The complainant purchased Ashok Leyland lorry a heavy goods vehicle bearing No.AP 07 TB 4329 from the 1st opposite party, branch of the 2nd opposite party on 4.9.2010 for her family livelihood. The 3rd opposite party had provided financial assistance for purchasing the vehicle. The vehicle had break down after running 500 kms. The complainant got it repaired from the 1st opposite party.

Subsequently also the vehicle had given troubles and it got repaired at service points of the 1st opposite party in Delhi, Agra, Kolkatta, Itrasi, Nagapur. The vehicle suffered break downs due to defective engine supplied by the 1st opposite party. The complainant approached the 1st opposite party for replacement of said engine as it failed frequently within one year three months of purchase. The 1st opposite party had replaced the engine with another engine taking the defective engine.

Even the replaced engine did not work properly and again it was replaced with the floater engine. The vehicle is now running with spare engine. That spare engine is also not in good condition. It gives abnormal sound indicating trouble and also giving frequent troubles. It consumes more oil. It is known to the 1st opposite party.

The complainant within 15 months of purchasing the lorry lost her earnings for five months coming to around Rs.7,00,000/-. She also suffered loss of amount of diesel in a sum of Rs.12,57,142/-. The vehicle ran for about 1,00,000 kms. The complainant also suffered further loss of interest on account of demands to financial institutions. The 3rd opposite party was aware of the trouble in the engine. Still it is insisting the complainant to pay monthly instalments and threatening the complainant that the vehicle will be seized if the payment is not made. The complainant had suffered mental agony due to troubles with the engine of the vehicle. There is deficiency in service on the part of the opposite parties 1 and 2. Therefore the present complaint is filed.

3. The opposite parties 1 and 2 filed counter denying the allegations made in the complaint admitting sale of vehicle to the complainant and further stating as follows:

The complainant brought the vehicle to the work shop on 9.1.2011 of the vehicle had run for 16,500 kms, to carry out 2nd servicing. The opposite parties do not have any service center at Delhi, Agra, Kolkatta, Itrasi, Nagapur. They have service centers in Gujarat, Maharastra and Andhra Pradesh only. The complainant has given the vehicle to other workshops on various occasions to carry out alleged repairs and thereby violated the terms of the warranty. When the vehicle was brought to the workshop of opposite party it was immediately attended to and the complainant was taking back the vehicle after test drive and satisfying with condition of the vehicle. The vehicle again brought to the workshop of the opposite party on 13.10.2011 complaining excess engine oil consumption by then the vehicle had run 1,02,439 kms within the period of one year. The technicians observed that the engine required repairs. The complainant was provided with a new float engine to enable her using the vehicle till appropriate repairs are carried out to the said engine. The complainant took back the vehicle on 20.10.2011 after trial run. On extensive inspection by the officials of M/s Ashok Leyland the original engine found to require repairs. The company had decided that the complainant could retain the float engine enabling her to continue user of the vehicle. The complainant did not come to the opposite parties after 20.10.2011. The allegation that the substitute engine giving trouble is without substance. AT the time of taking the vehicle on 20.10.2011 the complainant demanded the opposite parties to reimburse the alleged loss said to have been caused to the complainant for not using the vehicle for 07 days. The opposite parties declined that demand. As a counter blast this complaint is filed. There is no deficiency in service on the part of the opposite parties. The complaint is bad for non-joinder of manufacturer M/s Ashok Leyland. This complaint be dismissed.

4. The 3rd opposite party filed his version generally denying the allegations made in the complaint and further stating that the 3rd opposite party provided finance assistance as per the agreement dated 1.9.2010 that it is debtor and creditor relationship and not a relationship of consumer and service provider that the loan was taken as commercial transaction not falling under Consumer Protection Act, and the 3rd opposite party initiated Arbitration proceedings as there was default in monthly instalments, that pending those proceedings the complainant opted to pay part of over due amount as per the terms of the agreement that the 3rd opposite party has liberty to seize the vehicle and it would not fall under Consumer Protection Act and that for the notice got issued by the complainant suitable reply was given and this complaint be dismissed.

5. The complainant filed her affidavit and it is received as deposition of PW-1. The Branch Manager of the 1st opposite party filed his affidavit and it is received as evidence of DW-1. Executive-Legal of 3rd opposite party filed his affidavit and it is received as deposition of DW-2.

6. Exs.A1 to A9 are marked for the complainant and Exs.B1 to B6 are marked on behalf of the 3rd opposite party.

7. Heard the arguments advanced by the learned counsel for all the parties.

8. The points that fall for determination are:

I) Whether the complainant had suffered loss of earnings and loss on higher consumption of fuel due to defect in the engine of the vehicle

and also in the spare engine provided by the opposite parties 1 and 2?

II) Whether there is deficiency in service on the part of the opposite parties 1 to 3?

III) Whether the complainant is entitled to the reliefs prayed for?

Point Nos.1 and 2:

9. The complainant had admittedly purchased Ashok Leyland lorry, a heavy goods vehicle from the 1st opposite party is the branch of 2nd opposite party. They appeared to be dealers of Ashok Leyland vehicles. According to the complainant the vehicle was initially brought to the 1st opposite party after it has run 500 kms as there was break down in the vehicle and that the complainant approached the 1st opposite party and got the vehicle repaired. The opposite parties 1 and 2 deny these allegations and according them the vehicle was brought on 9.1.2011 after the vehicle ran 16,500 kms. It was said to be the 2nd servicing. There must be then 1st servicing earlier. The 1st servicing would be done within one week or two weeks of the purchase. The vehicle was purchased on 4.9.2010. Neither of the parties produced job cards. Therefore it cannot be said that ther was trouble with the vehicle even at the time of 1st or 2nd servicing. When the allegation is denied the statement of complainant cannot be treated as sufficient to hold that there was trouble with the lorry even in the beginning.

10. The complainant states that she got the vehicle repaired in Delhi, Agra, Kolkatta, Itrasi, Nagapur but the opposite party deny to have servicing in Delhi, Agra, Kolkatta, Itrasi, Nagapur. Even for such repairs the complainant has not produced any document obtained from respective servicing centers. The opposite parties 1 and 2 admit that the vehicle was brought to the 1st opposite party on 13.10.2011. The complainant has not given any date in the complaint or in the affidavit. The 1st opposite party admits that when the vehicle was brought on 13.10.2010 and on through verification the engine was found to require repairs and therefore a substitute engine was provided to the complainant. The complainant is not stating that the substitute engine is of any lesser capabilities or grade. It is the contention of the complainant even a substitute engine is giving trouble except the statement of the complainant there is no other material in support of such trouble.

11. The relief is based on loss of earning from 5 months within the period of 15 months from the date of purchase and on higher consumption of fuel calculated loss of 1 KM for every one liter of diesel oil. The higher consumption of the diesel is one of the grounds taken by the complainant for the claim. Before we accept this contention it is necessary for us to know what was the milage of the vehicle was originally supposed to give what was the milage the vehicle had given with the original engine and what was the milage subsequently given by the vehicle with substitute engine. Without knowing these essential it is not possible to indicate that there was higher consumption of fuel. No doubt the 1st opposite party admits that on 13.10.2011 when the vehicle was brought to workshop the original engine of the vehicle was found required repairs. From this admission it cannot be said that trouble with the engine was such that it had led to higher consumption of fuel. Similarly from that fact it cannot be known for how-long the vehicle was not run as usual. The complainant has not filed any document relating to user of the vehicle to show the work done with the vehicle. Therefore the contention that the engine was defective from the beginning and it has led to higher consumption of fuel or stoppage of work for five months is not established. The opposite parties 1 and 2 are not shown to have refused to render service. Infact they have provided substitute engine taking only 7 days time i.e., from 13.10.2011 to 20.10.2011. This time in our opinion is not abnormal. It is to be noted that by 13.10.2011 the vehicle had run 1,02,439 kms according to opposite parties 1 and 2. Therefore we do not find any defect in the engine originally supplied. The defect in the present engine is not established. We do not find any deficiency in service on the part of the opposite parties 1 and 2.

12. As regards the 3rd opposite party there is no allegation of any failure to render service then question of deficiency in service by 3rd opposite party would not arise. The 3rd opposite party has taken Arbitration proceedings when there was default in payment of instalments due to 3rd opposite party, the financier. The 3rd opposite party may have the right to seize the hypothecated vehicle following the procedure. No deficiency is so far established. Therefore these points are answered against the complainant.

Point No.3:

13. In view of the answers on points 1 and 2 the complainant is not entitled to any relief. The complaint is liable to be dismissed. However we are not inclined to burden the complainant with costs.

14. In the result this complaint is dismissed without costs. Dictated to Steno N. Hazarathaiah, transcribed by him corrected by me and pronounced by us in the open Forum, this the 30th day of November, 2012.

PRESIDENT                                                                                                 MEMBER                                                          MEMBER

Appendix of evidence

Witnesses examined

For the complainant:                                                                                                              For the opposite parties:

PW-1, Nemalapuri Rajeswari                                                                                                  DW-1, Branch Manager of

  (by affidavit)                                                                                                                          1st OP, DW-2 Executive-Legal

                                                                                                                                                of 2nd OP (by affidavits)

Documents marked

On behalf of the complainant::

Ex.A1 04.09.2010 Photocopy of retail invoice.

Ex.A2 30.01.2012 Copy of legal notice got issued by complainant to Ops.

Ex.A3 Postal acknowledgement.

Ex.A4 Postal acknowledgement.

Ex.A5 Postal acknowledgement.

Ex.A6 15.02.2012 Photocopy of receipt.

Ex.A7 Photocopy of online receipt.

Ex.A8 20.2.2012 Copy of reply notice got issued by Op.3 to complainants counsel.

Ex.A9 02.04.2012 Copy of reply notice got issued by Ops to complainants counsel.

On behalf of the opposite parties:

Ex.B1 Copy of statement of account.

Ex.B2 08.08.2012 Copy of repayment schedule.

Ex.B3 26.07.2012 Copy of letter issued by OP.3 to complainant.

Ex.B4 20.02.2012 Copy of reply notice got issued by Op3 to complainants counsel.

Ex.B5 Postal acknowledgement.

Ex.B6 30.01.2012 Photocopy of reply notice got issued by Ops to complainants counsel

PRESIDENT