IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA Dated this the 12th day of April, 2010. Present : Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.131/08 Between: Sreeja Deth, W/o. Sreejith, Puthuparampil House, Vazhamuttom East.P.O., Pathanamthitta. (By Adv. T. Harikrishnan) ..... Complainant. And: - The Eicher Motors Ltd.,
102, Industrial Area No.1, Pithampur – 454775, Dhar District, Madhya Pradesh rep. by its- Managing Director. - The Proprietor/Managing Partner,
The Grand Motors Sales Corporation, M.C. Road, Thiruvalla – 689 101. (By Adv. V.C. Sabu & Mathew Kuriakose) ..... Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complainant against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows:- The complainant had purchased an MGV Goods Carrier from the opposite parties on 27.12.07 to be used as a tanker lorry. The Reg.No. of the vehicle is KL-3Q/8324. The vehicle covered a warranty of 36 months from the date of installation for engine and gearbox and 12 months from the date of installation for rest of parts of the vehicle irrespective of the kilometerage covered during the period. The date of installation is entered in the operators manual is 20.12.07. The vehicle has been periodically serviced with 2nd opposite party after completing 5000 and 15000 kilometers. The complainant has used the vehicle for transporting Ammonia solution from Tamilnadu to Kerala. On 18.7.08 at about 4’ 0 clock in the morning, while the vehicle was coming Kerala from Thirunalveli running about 25 kilometers at Idaikal the engine of the vehicle ‘ceased’. The matter was informed to the 2nd opposite party and the authorised dealer of the 1st opposite party at Thirunalveli. The Service Engineers of the opposite parties inspected the vehicle. After inspecting the vehicle, the Service Engineers identified the trouble as ceasing of engine by overheating and the 4th piston was completely melted due to the ceasing of engine. Thereafter on 20.7.08 the opposite parties had arranged a substitute engine to the vehicle and deliver the load. The vehicle and its engine are brand new and has been serviced periodically. No defect was identified by the service engineers of 2nd opposite party. The periodic service for 25000 kilometers is fall due. The complainant alleged that overheating of engine and the consequent ceasing and melting of 4th piston of engine is the inherent manufacturing defect of the engine. Considering the nature of its use and the defect is within the warranty period the opposite parties are liable to replace the ceased engine with a brand new one. But the opposite parties are offered only to repair the damaged engine instead of replacing. The replacing of damaged piston and other parts of an engine will not make it as powerful durable and fuel efficient as a new one. Therefore the complainant filed this complaint for getting an order for directing the opposite parties to replace the defective engine of the complainant’s vehicle with a brand new one free of cost within a stipulated period of time or allowing to realise its cost from opposite parties along with a compensation and cost. The complainant prays for granting the reliefs. 3. The opposite parties have filed a common version stating the following contentions: The opposite parties have admitted the purchase of the vehicle from them by the complainant and it is to be used as a tanker lorry. These opposite parties have made available all facilities and conveniences to the complainant as much as possible. On 18.7.08 on receiving the telephonic call from the complainant the dealer of Eicher at Thirunalveli sent their electrician because of the suspicion that the fuming from engine area due to short circuit and burning. After inspecting the vehicle he found that the trouble is not out of any short circuit problem, but out of some mechanical defect and wanted to be a mechanic. The mechanic checked the vehicle and found that the trouble is in the Engine Assembly. On getting instruction the mechanic had dismantled the cylinder head assembly and the 4th cylinder piston was found melted. The opposite parties had informed the defect of the vehicle to the complainant and requested to allow the vehicle to be brought to Dealers Workshop at Thirunalveli. The complainant was not willing to move the vehicle and the only alternative was to arrange a float engine for immediate operation. On 19.7.08 the float engine was arranged from Madurai dealer and it was fixed to the vehicle on 20.7.08 and after trial run the vehicle was given to the customer. The failed engine was brought to the workshop at Thirunalveli and it was dismantled and the cause was reported to the Head office of the Eicher Motors Ltd. The head office had given instructions to replace the defective parts and re-assemble the engine. But the customer wanted to replace the engine itself. 4. The stipulations in condition No.3 and 5(h) of the warranty conditions mutually agreed by the complainant and these opposite parties as follows:- “Incidental or consequential damages such as loss of use of the vehicle, loss of time, inconveniences or damage to personal period when the vehicle is undergoing service/warrantee repairs. These opposite parties never had violated the above conditions and the complainant and the opposite parties had accepted these terms of contract with open eyes assimilating the tenor of the stipulations. Any demand beyond the clutches of these stipulation is not accepted and if accepted will put way to embarrass incidents with other customers also”. 5. These opposite parties had never violated the above conditions and the complainant and the opposite parties had accepted these terms of contract. The complainant bring the vehicle for replacement of rectified Engine Assembly on 2.9.08 and it was redelivered on 5.9.08. There was no negligence from the part of opposite parties, these opposite parties have performed their duty as per the provisions of the warranty condition. Hence they prayed for the dismissal of the complaint. 6. On the above pleadings, the following points are to be considered: (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Relief & Costs? 6. The evidence in this case consists of the proof affidavit filed by the complainant along with 5 documents. On the basis of the proof affidavit filed by her she has been examined as PW1 and the documents produced were marked as Exts.A1 to A5. One witness for the complainant has filed a proof affidavit and on the basis of the proof affidavit he has been examined as PW2. For the opposite parties the Branch Manager of the 2nd opposite party has filed a proof affidavit and on the basis of the proof affidavit he was examined as DW1 and the owner’s manual produced by the opposite party is marked as Ext.B1. After closure of the evidence, both sides heard. 7. The complainant’s case is that she had purchased an MGV Goods Carrier Tanker Lorry from the 2nd opposite party, which was manufactured by the 1st opposite party. The vehicle was used for transporting Ammonia Solution from Thirunalveli to Kerala. During the way from Thirunalveli to Kerala the engine of the vehicle ceased and stopped the vehicle. According to the complainant the engine of the vehicle ceased due to the manufacturing defect of the engine and the defect occurred within the warranty period. Hence the opposite parties are liable to replace the engine of the vehicle and the complainant is entitled to get it. The opposite parties have offered the replacement of the spare parts of the vehicle only. Therefore she filed this complaint for getting the reliefs as sought for in the complaint. 8. In order to prove the complainant’s case, the complainant has adduced oral evidence as PW1 and Exts.A1 to A5 were marked. Ext.A1 is the Invoice-cum-delivery chelan issued by the 2nd opposite party on 27.12.07. Ext.A2 is the copy of R.C. Book of the complainant’s vehicle. Ext.A3 is the copy of the warranty card of the complainant’s vehicle. Ext.A4 is the copy of the job card (3 pages) issued by the Haribalakrishna Automobiles, Thirunelveli on 5.9.08. Ext.A5 is the job card issued by the 2nd opposite party on 11.10.08. 9. According to the opposite parties, they have contended that they have full filled the conditions of warranty as per Condition No.3 and 5(h). There is no delay or negligence from the part of them. The complainant brought her vehicle on 2.9.08 for replacing the rectified engine assembly parts and the same was re-delivered on 5.9.08 as earliest possible. After replacing the rectified engine Assembly the demand for damages and other allegations are to make gain out of an unfortunate unforeseen incident which caused the melting of engine parts, she is estopped from further demand. There is no deficiency in service from the part of them. 10. In order to prove the contentions of opposite parties, the 2nd opposite party’s Branch Manager has adduced oral evidence as DW1 and Ext.B1 marked. Ext.B1 is the owner’s manual issued to the complainant’s vehicle. 11. The complainant had purchased the vehicle from the 2nd opposite party on 27.12.07 and two periodical free services were completed with the 2nd opposite party. In Ext.B1 owners manual the service and maintenance record seen that there is no complaint for the engine or other parts of the vehicle were not recorded in the remarks column. It is to be noted that during the service period i.e. from 21.1.02 to 29.4.02 the vehicle has been run 14926 km. and there is no engine defect or other defects to the complainant’s vehicle. The engine of the vehicle ceased on 18.7.08 on the way to Kerala from Thirunalveli. There are many reasons for the ceasing of the vehicle while plying. The mechanics of the authorised service centre of 1st opposite party have inspected the vehicle and they detected that the engine was ceased because melting of 4th piston of engine due to overheating. Over heating may cause due to the deficiency of engine oil, law cooling and negligent driving of the vehicle. Here the exact cause of the overheating of the engine of the vehicle was no t identified. It can be identified only by an expert. In this case there is no expert evidence is adduced from both sides to prove the exact cause of overheating of engine. It is the duty of the complainant to prove his case against the opposite parties. Without expert evidence regarding this subject matter we are not in a position to identify the exact cause of defect of engine of the complainant’s vehicle. In the circumstances, the allegation of the complainant that the overheating caused to the ceasing of engine and melting of 4th piston is the inherent manufacturing defect is not sustainable. The allegations raised against the opposite parties stand disproved. Therefore, the complainant’s prayer for replacing the new engine cannot allowable. 12. There is no dispute regarding the warranty of Engine Assembly of the vehicle. But the warranty is subject to the conditions specified in the warranty certificate. From the evidence it is seen that the opposite parties have made all the available efforts to rectify the defects of the Engine Assembly of the complainant’s vehicle. There is no violation of warranty conditions seen from the part of the opposite parties. They have provided all the services under the warranty entitled to the complainant. In the circumstances, we find any deficiency in service from the part of opposite parties. The complainant failed to prove her complaint and hence the complaint is liable to be dismissed. 13. In the result, the complaint is dismissed. No cost. Declared in the Open Forum on this the 12th day of April, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Sreeja Deth PW2 : Sreedeth. P.N. Exhibits marked on the side of the complainant: A1 : Photocopy of the Invoice-cum Delivery chalan A2 : Photocopy of the Certificate of Registration (KL.3-Q/8324) A3 : Photocopy of the Memorandum of Registration (for owner’s use) A4 : Photocopy of the Job Card of Hari Balakrishna Auomobiles, Thirunelveli A5 : Photocopy of the Job Card of Grand Motors Sales Corporation, Thiruvalla. Witness examined on the side of the opposite parties: DW1 : Kuriakose Exhibits marked on the side of the opposite parties: B1 : Operator’s Manual. (By Order) Senior Superintendent Copy to: (1) Sreeja Deth, Puthuparampil House, Vazhamuttom East.P.O., Pathanamthitta. (2) The Managing Director, The Eicher Motors Ltd., 102, Industrial Area No.1, Pithampur – 454775, Dhar District, Madhya Pradesh. (3) The Proprietor/Managing Partner, The Grand Motors Sales Corporation, M.C. Road, Thiruvalla – 689 101. (4) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
