DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 24^th  day of April 2012

Present  : Smt.Seena H, President

             : Smt. Preetha.G. Nair, Member       

             : Smt. Bhanumathi.A.K, Member             Date of filing:  12/09/2011 

                                                (C.C.No.148/2011)                             

A.B.Vinod,

S/o.Bhaskaran,

Alparaveedu, Thavalam,

Agali, Mannarkkad Taluk,

Palakkad                                                        -         Complainant

(By Adv.Aravindakshan)                                          

V/s

1. M/s.PSN Automobiles,

    Rep.by the Branch Manager,

   17/104, Opp.Cosmopolitian Club,

   National High Way, Kadancode,

   Palakkad     

(By Adv.V.Krishna Menon)                               -        Opposite parties   

O R D E R

            By  Smt.PREETHA G NAIR, MEMBER

The complainant purchased a MGV Tipper goods carrier on 29/6/09 on payment of full price to earn his living. On 6/2/10 while the vehicle was at a work place, a huge stone slipped down accidently and hit against the vehicle causing damage to its body and chassis. The complainant contacted the opposite party and his insurer, and  as per their advice the vehicle was taken to M/s.T.K.Motors, and after dismantling  the body there the vehicle was taken to opposite party. The surveyor of the insurance company inspected the vehicle at T.K.Motors as well as opposite party’s premises. M/s.T.K.Motors prepared an estimate of Rs.97,700/- and  the opposite party prepared an estimate of Rs.1,62,292/- to be produced with the insurer. The opposite party told that it would take only one week’s time to repair the vehicle, but since the spare parts and chassis were out of stock it would take another one week to procure them and the cost of repair would be collected from the insurer.  After two weeks the opposite party told that the spare parts and chassis were on transit and it would take some more days to get the vehicle repaired. After two weeks, when the complainant contacted the opposite party he was told that the spare parts and chassis were on transit and it would take some more days to get the vehicle repaired.  On 3/3/10 the opposite party stated that they had not placed any order for the spare parts and chassis as the complainant had not paid any advance amount. Then the complainant arranged  Rs.25,000/- and paid to the opposite party on 3/3/10. But the opposite party  unnecessarily and without any reason delayed the repairs until 29/4/2010. Then the complainant was unable to use the vehicle for 83 days. On  9/3/10 the opposite party obtained a written assurance from the complainant to the effect that in case the insurer refuse to give work order he shall pay the cost of repair. Even  after getting such a written assurance the vehicle was repaired and delivered to the complainant only on 29/4/10. i.e. 51 days after that. The vehicle could have been repaired in 7 days. The opposite party delayed the repair works for  further 44 days without any reason. The complainant earns an average sum of Rs.5,000/- per day by using the vehicle. The complainant could not use the vehicle for 83 days from 6/2/10 to 29/4/10. Then the complainant sent  a lawyer notice on 7/2/11. But the opposite party has refused to make good of the loss suffered by the complainant and sent a reply stating false statements and allegations. On 8/3/11 while the vehicle was running its engine got over heated and stopped working. The complainant contacted the opposite party over phone and advised him to pour some water in the radiator and on doing so the vehicle started running. But the defect was not cured by the opposite party and it still occurs every now and then making it difficult for the complainant to use the vehicle. Before purchasing the vehicle the opposite party had made the complainant to believe that the vehicle has a mileage of 7 kms per litre. According to the complainant the mileage of the vehicle is only 4 kms per litre. When the vehicle was delivered on 29/4/10 after repair the damaged chassis  and other replaced parts were left at the opposite party’s premises for which they made to sign a paper. On 16/11/11 the opposite party sent a letter to the complainant to remove the damaged chassis and rear axle after paying Rs.75/- per day from 29/4/11. At the time of delivery of vehicle the opposite party had not informed the complainant about any demurrage at all. After receiving the letter the complainant approached the opposite party to take the chassis and rear axle but he was manhandled by the manager and staff regarding which a complaint has been lodged at the Palakkad Town Police Station. The complainant is entitled to take back the damaged chassis, rear axle, housing tube etc. without paying any charges.

The acts on the part of opposite party amounts to deficiency in service, unfair trade practice and negligence. Therefore the complainant is entitled to be compensated by the opposite party for the loss he  has suffered.

Hence the complainant prays an order directing the opposite party to pay Rs.4,00,000/- with interest as compensation for the loss and mental agony and cost of the proceedings.

Opposite party filed version stating the following contentions. The first contention of the opposite party that complainant is not a consumer as defined  under Section 2(1) (d) of the Consumer Protection Act.  Complainant had another Tipper lorry bearing registration No.KL-10-W-3437 and JD 315V machine in addition to the vehicle bearing registration no.KL-50-8449. The two lorries and the JD315V machine bear the name “Vijesha” and the phone number of the complainant engraved on it and these are parked at a petrol pump at Vettichira. Hence the complainant cannot be treated as consumer.

The complainant had deposited Rs.25,000/- on 3/3/10 with the opposite party as advance towards the accident repairs and they had placed an order for the chassis and necessary spare parts with M/s.AMPL, who had in turn placed orders with the manufacturer M/s.VE Commercial Vehicles Ltd.  Madhya Pradesh. The spare parts and chassis were received by the opposite party only on 9/4/10. Thereafter the opposite party had  carried out the necessary repairs and delivered the vehicle on 29/4/10. The allegation of the complainant that the opposite party had agreed to carry out the repairs within one week and thereafter they had assured to carry out the repairs within a further period of one week are denied. The opposite party had in no manner caused any loss or hardship to the complainant as alleged. The complainant has till date not brought his vehicle to the workshop complaining of the alleged compliant of overheating. On 29/4/10 the complainant had been requested to take back the damaged replaced parts, to the service personnel of the opposite party to return it in the workshop assuring to collect it without any further delay. Then the service personnel had agreed to retain the same as per the complainant’s request for which a receipt had been duly given to him. However, inspite of the lapse of over seven months, since the complainant had not come to collect the damaged replaced parts a letter dated 3/11/10 issued to him. The officials of the opposite party had appeared before the police authorities and explained to the facts.

The opposite party denied the allegation of the complainant that they have caused him loss and sufferings. Hence the opposite party prayed that dismiss the complaint with cost.

Both parties  filed their chief affidavit and documents. Ext.A1 to A10 marked on the side of the complainant. Ext.B1  marked on the side of the opposite party. Both parties filed argument notes.

Issues for consideration are

1. Whether complainant is a consumer under the Consumer Protection Act ?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the cost and relief ?

Issue No.1

The opposite parties stated that the complainant cannot be treated as a consumer as defined under section 2(1)(d) of the Consumer Protection Act. The opposite party’s counsel argued that the complainant has not produced any material to prove the fact that the tipper lorry was the only source of his livelihood and that he intended to operate the same by himself for ekeing  out his livelihood. Admittedly the complainant had purchased the Goods carrier bearing Reg.No.KL-50-8449 from the  opposite party. The complainant  stated that he purchased the vehicle to earn his livelihood and that he has no other source of livelihood. The complainant was not cross examined by opposite  parties. No contradictory evidence was produced by the opposite parties.

The first opposite party filed  affidavit and Ext.B1 marked. Ext.B1 is the letter sent by the complainant stating that Sn hml\¯ns\ B{ibn¨v Ignbp¶ Fsâ sXmgnemfnIÄ¡pw, AhcpsS IpSpw_¯n\pw henb {]bmk§fpw, _p²nap«pIfpw t\cntS­nh¶n«p­v.  The opposite parties stated that in Ext.B1 complainant stated that he was unable to carry on his business effectively and pay the salary etc. to his workers. The counsel  of the complainant argued that according to the  complainant labourers means loading and unloading workers belonging  to the trade union and in the letter the word Fsâ crept in due  to clerical mistake committed by the typist who typed the letter. The opposite parties have not produced  evidence to prove that complainant had labourers and paid salary.

  The opposite party stated that the complainant had another Tipper Lorry bearing registration No.KL-10-W-3437 and a JD 3157 machine manufactured by M/s.Telcon Construction Equipment Ltd. in addition to the vehicle bearing registration No.KL-50-8449. So the complainant was conducting business transaction and the complainant cannot be treated as a consumer.

  The opposite parties have not produced evidence to show that the complainant has used the three vehicles   for commercial purpose.

The Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission Raipur II (2011)CPJ 89 in Amit Jaiswal Vs.Dealers Star Automobile and Ors. held that  if there is allegation that the vehicle was not repaired within warranty period, then such cases come in the category of consumer dispute and can very well be entertained by Consumer Forum.  In the present case also the vehicle was not repaired within the stipulated period.   So this case also come in the category of consumer disputes. Hence the complainant is a consumer under the Consumer Protection Act. So the 1^st issue answered in favour of the complainant. 

Issue No.2 & 3

Heard and perused the relevant documents on record. According to the opposite party on 3/3/2010 the complainant deposited an amount of Rs.25,000/- towards the accident repairs and on that day itself they placed orders with the manufacturer M/s.VE Commercial Vehicles Ltd. Madhya Pradesh. Further opposite party stated that the chassis and spare parts were received only on 9/4/2010 and repaired the vehicle and delivered on 29/4/2010. No documentary evidence produced by the opposite party to show that the chassis and spare parts received on 9/4/10.

Further allegation of the complainant that the overheating of the  engine  of the vehicle was not repaired by the opposite party. The complainant has not produced evidence to show overheating of the engine of the vehicle.  The opposite party denied the allegation of the overheating of the engine and stated that the complainant had not brought his vehicle to the workshop complaining of overheating.

On 29/4/10 the complainant had been requested to take back the damaged replaced parts. Ext.A5 is the letter sent by the opposite party demanding demurrage at the rate of Rs.75/ per day from 29/4/10 till collection of the replaced chassis and other parts. Ext.A9 shows no demurrage or garage rent was stated by the opposite party.

According to the complainant the vehicle given to the opposite party’s workshop on 6/2/10 and they had not informed or advised to make payment of advance amount earlier to 3/3/10. The opposite party has not produced evidence to show that they demanded the advance amount  earlier.  It is evident from Ext.A9 that no demurrage or garage rent was fixed by the opposite party on 29/4/10.  The opposite party admitted that the complainant paid Rs.25,000/- on 3/3/10. Ext.A3 shows that opposite party received the cash on 3/3/10. Both parties admitted that the vehicle repaired and delivered  on 29/4/2010. The complainant is claiming compensation for the delay of 44 days that was caused after obtaining written assurance on 9/3/10 to pay repair charges if insurer refused to pay the same. The opposite party has not produced evidence to show the parts were brought from the manufacturer and the parts received on 9/4/2010.

In the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay complainant an amount of Rs.20,000/- (Rupees Twenty thousand only) as compensation for mental agony and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum  for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 24^th  day of April  2012.

     Sd/-

Seena.H

President

     Sd/-

Preetha G Nair

Member

    Sd/-

Bhanumathi A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Photocopy of repairs estimate prepared by oppsoite party on 12/2/10

Ext.A2 –  Photocopy of estimate for accident repair work prepared by

             T.K.Motors on 9/2/10

Ext.A3 –  Photocopy of   Receipt No.080503107  issued by oppsoite party 3/3/10

Ext.A4 –  Photocopy of Receipt No.09JC00214  issued by oppsoite party

             29/4/10

Ext.A5  - Photocopy of letter issued by opposite party on 16/11/10

Ext.A6 – Receipt issued by SI of Police Town South Police Station, Palakkad on

            23/12/10

Ext.A7 series – Copy of lawyer notice issued by Adv.Aravindakshan to the

                      opposite  party on 7/2/11  with postal receipt and

                       acknowledgment card

Ext.A8 – Reply notice dated 23/2/11  issued by Adv.V.Krishna Menon.

Ext.A9 – Document dated 29/4/10 given by opposite party to the complainant

Ext.A10 -Document dated 08/7/09 given by opposite party to the complainant

Exhibits marked on the side of the opposite parties

Ext.B1 – Photocopy of letter dated 9/6/11 sent by the complainant to the oppsoite party.

Cost Allowed

Rs.1,000/- allowed as cost of the proceedings.