D.O.F. 30.10.2006 D.O.O. 01.03.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K. Gopalan : President Smt. K.P. Preethakumari : Member Smt. M.D. Jessy : Member Dated this the 1st day of March, 2011. C.C.No.251/2006 Shahith Kumar P.R., S/o. D. Raghavan, ‘Narayanam’, Kappad, Chelora, : Complainant Kannur District (Rep. by Adv. Abdul Azeez A.K.) 1. The Branch Manager, M/s. Essar Premier, (A unit of Sun Marine Automobiles), Room No.55, Ground Floor, Caps Centre, Thottada P.O., : Opposite parties Kannur. (Rep. by Adv. P.C. Pradeep) 2. The Managing Director, Premier Ltd., Mumbai-Pune Road, Chinchwad. (Rep. by Adv. T. Ramakrishnan) O R D E R Sri. K. Gopalan, President This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay an amount of ` 6,00,000 as compensation. The brief facts of the case of the complainant is as follows : The complainant purchased the vehicle Premier Zigma DAC with tool kit manufactured by 1st opposite party the dealer of 2nd opposite party on 06.10.2005. The complainant was given hypothecation facility by State Bank of India. The vehicle has warranty of one year and five free services. Complainant took permit to use vehicle as taxi and the said driver was employed. The vehicle started to show its defects from the very beginning and on 19.01.2006 it was taken to 1st opposite party due to gear trouble and complaint in the gear box. The vehicle was taken back after repair. But it again showed complaints like abnormal sound etc and was taken to opposite party and repaired. The 4th service was conducted on 19.04.2006. On 15.05.2004 the vehicle was again taken to opposite party for repair the silencer pipe which was broken. It was solved and taken back. Again on 06.06.2006 due to complaints on the left door glass, steering light etc vehicle was taken to opposite party. Thus it has became a routine work for the complainant and as such the complainant was not in a position to use the vehicle for the taxi purpose. Again on 12.06.2006 due to complaints of sound, shock absorber etc it was taken to opposite party. Then agan on 06.07.2006 to fit the back right side main leaf which was broken, on 15.07.2006 for complaints of radiator leak, front left side door – back steering etc, on 20.07.2006 for complaints of nozzil, fuel injunction pump, fip abnormal sound etc. Since it has became a head ache complainant thought to selling the vehicle but he was informed that there is no scope for the same. Manufacturing of the vehicle stopped due to the frequent complaints received from the customers. Complainant took the vehicle by availing a loan with a condition to repay the amount ` 10,000 per month. Due to frequent complaints and vehicle was under repair most of the time the complainant was not able to make prompt repayment of the loan as well as the payment of the driver. Thus complainant was to be much difficulty for which the opposite parties are alone responsible. The opposite parties are liable to make compensation for selling the vehicle with manufacturing defects. Pursuant to notice the opposite parties entered appearance and filed version denying the main contentions of complainant. The brief facts of the contentions of the 1st opposite party are as follows : The complainant purchased the vehicle intend to use it as a taxi. He is using the vehicle for commercial purpose. The allegation that the vehicle was showing the defects from the very beginning is not correct. All the complaints were only due to wear and tear which were rectified and delivered to complainant. He bought the vehicle on 27.07.2007 with engine complaint and on examination it was found full water inside the air cleaner. Complainant was asked to pay repair charge since the damage caused was due to water entered in the engine which was not covered by warranty. But complainant took the vehicle back on his own risk. There is no truth in the allegation that manufacturing of the vehicle is stopped. The vehicle sold by the opposite party has no manufacturing defect. Lack of skill and knowledge in doing business is the reason for the loan and not the defect of the vehicle. Complainants case has no merit. Hence to dismiss the case. 2nd opposite party filed version separately contending as follows : The allegation that complainant purchased vehicle by hypothecation is a subject matter of proof. The vehicle used by the complainant has good carriage whereas the vehicle manufactured is a passenger vehicle. Complainant violated the conditions of use of vehicle. The allegation that the vehicle was brought on 19.01.2006 due to gear trouble and after repair it showed complaint again etc are not true. The allegation that on 06.06.2006 the vehicle was brought with complaints of left door glass, steering light etc are not correct. It was brought for repairing the silencer which was broken by external hit and not of any defect. The alleged defects on 06.07.2006, 15.07.2006, 20.07.2006 are not exactly correct. It is not correct that there is no scope for the sale of the vehicle as its manufacturing is stopped. The vehicle has not manufacturing defects and the complainant was running the vehicle regularly and earning his income. There is no merit in the complaint. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. (i) Whether there is any deficiency in service on the part of opposite parties? (ii) Whether the complainant is entitled for the relief as prayed n the complaint? (iii) Relief and cost? The evidence consists of PW1, DW1, Ext. A1 to A5 and Ext.B1 to B2. Issues 1 to 3 : Complainant filed chief affidavit in tune with the pleadings. It is an admitted fact that complainant purchased Premier Sigma vehicle from 1st opposite party, the dealer of 2nd opposite party. The case of the complainant is that the vehicle started showing mechanical defects from the very outset since there was manufacturing defect to the vehicle. Vehicle repaired number of times and as a result of the continuous trouble one after another he was not able to run the vehicle and use it for taxi. Since he was fed up with the condition of the vehicle he thought of selling it but it was informed that there is no scope for sale since the manufacturing of the vehicle is stopped. The vehicle was purchased with the amount of higher purchase but he could not repay the loan and pay the wages to driver since the vehicle was not road worthy most of the time. On the other hand 1st and 2nd opposite parties contended that the alleged vehicle was a passenger vehicle and complainant used it as goods carriage vehicle violating the conditions of use of vehicle. All the complaints were only due to wear and tear which rectified to the satisfaction of the complainant. There was no manufacturing defect and the production of the vehicle had not been stopped. Ext.A1 is the credit memo which shows a grand total of ` 4,58,909. Ext.A2 is the warranty card and Ext.A3 is permit. Ext.A4(a) and A4(c) are bills and A4(b) is a quotation. Ext. A5 is the attested copy of certificate of registration. On perusal of the document it is seen a photocopy of notes with ‘job complaints and carried out’ seems to be issued by Essar Premier, Kannur. On going through these notes it is seen that the vehicle started repairing within a few months of its purchase. The vehicle is still with the complainant using for private use. PW1, the complainant deposed in cross examination that the 1st complaint was gear box complaint and that was repaired by opposite party. Complainant took delivery of the vehicle by recording satisfaction in writing. The complaints includes in respect of the fuel injunction pump also. Opposite party contended that the fuel injunction pump got damaged due to the negligence on the part of complainant to put the cap on fuel tank on account of which water entered into fuel tank and in turn it damaged the fuel injunction pump. Negligence on the part of the complainant to put the cap on the fuel tank is alleged to be the reason for entering water to fuel tank in ordinary course cannot be believed though accidental happening could not be ruled out. Complainant adduced evidence by way of affidavit evidence that he has purchased the vehicle by availing a bank loan from the State Bank. Ext.A3 proves that complainant obtained an all India permit. It also proves that the intention of purchase was to use the vehicle as taxi. Ext.A1 proves that complainant purchased said Premier Sigma DX AC with tool kit for a total sum of ` 4,58,909 on 06.10.2005. Opposite party contended that the vehicle is under use as a goods carrier whereas the vehicle is manufactured as a passenger vehicle. But 2nd opposite party has not adduced any evidence to this effect to show that the vehicle was under use as a goods carriage. 2nd opposite party has not adduced any evidence to substantiate their contentions. Mere filing of the version is not enough to prove the pleadings. By way of affidavit evidence complainant gives evidence that the vehicle was brought to opposite party on 19.01.2006 due to gear trouble and complaint in gear box. On 19.04.2006 vehicle was brought for 4th service and a few days after, on 15.05.2006 the vehicle was again taken to opposite party for repairing silencer pipe. He further states that on 06.06.2006 the vehicle was taken to opposite party with a complaint as left door glass, steering light etc. Then again the vehicle was taken with various complaints on 12.06.2006 with complaints of sound, shock absorber etc, on 06.07.2006 to fit the back right side main leaf, on 15.07.2006 for complaints of radiator leak, front left side door – back steering etc, on 20.07.2006 with complaints nozzle, fuel injunction pump, fip abnormal sounds etc. Affidavit evidence further states that opposite party did not repair the vehicle eventhough vehicle was brought within guarantee period. The job card dated 27.07.2007 proves that the vehicle was taken back by the complainant within the guarantee period. Opposite party did not prove that they have no liability to repair the vehicle. Even in the version the reason stated is the manufacturer of the pump was not ready to repair the pump and replaced its nozzle and connected parts on account of violation of its warranty condition. Opposite parties did not produced any evidence which is capable of proving the violation of warranty that release the liability of opposite party within the warranty period. The contention of 1st opposite party is that the fuel injunction pump got damaged due to negligence and failure on the part of complainant to put the cap on fuel tank. Opposite party did not adduced any evidence to prove this negligence, without which there is no meaning in raising such contention. In ordinary course people using the vehicle will naturally take vigilance to put the cap of fuel tank. How does the opposite party came into such a conclusion is not explained and proved. There is a clear deficiency in service on the part of opposite party. DW1 has not produced any authority to adduce evidence. On what capacity he has represented the opposite party has not brought before the Forum. His own evidence shows that he is only an employee recently appointed in the institution of opposite party. He has not even produced any document to show that he is an employee of 1st opposite party working as a mechanic though he deposes that he has been working there for the last 5 years. Since he has not produced any documents atleast to prove he is working as mechanic with 2nd opposite party. His evidence cannot be taken for consideration to arrive at definite conclusion. In the light of the available evidence it can be seen that the vehicle of the complainant started repair from few months after purchase and he was compelled to approach workshop repeatedly number of times within a short period of 8 to 10 months. Hence the close analysis of the available evidence adduced by the complainant and in the absence of evidence on the part of opposite parties naturally leads to conclude that there is serious defects to the vehicle. Complainant has a specific allegation that the manufacturer has stopped the manufacturing of the vehicle due to frequent complaints received from the customers. Though opposite party had denied this allegation he has not taken any steps to disprove this allegation. Since it is a serious allegation opposite party is bound to produce evidence to show that the production of the vehicle has not been stopped as he has contended. Why he has not taken serious attempt to produce evidence as doubtful. It is easy for the opposite party to prove it if the contention is true. Since the opposite party has not taken serious steps to prove that the manufacturing of the vehicle has not been stopped which can only be presumed that there is no production of the vehicle at present. It is quite understandable if the production of the vehicle has been stopped it will greatly affected the market value of the product. Naturally the scope for sale would be very less. The complainant however, did not produced sufficient evidence to prove the actual loss he has suffered, and the present condition of the vehicle. It can be very well assume that whatever may be the trouble he is suffered, the complainant has managed to run the vehicle. Hence it is difficult to fix the damage without knowing the existing condition of the vehicle. Complainant should have produced evidence to prove the actual loss he has suffered. So also sufficient evidence should have been brought before the Forum in order to establish the present condition of the alleged vehicle. Taking into account the available evidence we are of opinion that the vehicle sold by opposite party is having manufacturing defect and there is also deficiency in service on the part of both opposite parties. We feel that an amount of ` 1,50,000 as compensation will meet the end of justice. The complainant is also entitled for an amount of ` 1,000 as cost. Thus issues 1 to 3 are answered in favour of the complainant and order passed accordingly. In the result the complaint is allowed directing the opposite parties to pay an amount of ` 1,50,000 (Rupees One lakh fifty thousand only) as compensation together with an amount of ` 1,000 (Rupees One thousand only) as cost of this proceedings within one month from the date of order failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Credit memo dated 06.10.2005. A2. Warranty job card, customers copy. A3. Permit in respect of All India/Zonal Tourist Vehicle. A4 (a) to (c). Cash bills. A5. Copy of Registration Certificate Exhibits for the opposite party B1. Job Card dated 27.07.2007. B2. Owner’s Manual Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. Reneesh K.R. /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
