Kerala

Idukki

CC/80/2016

Akhil S/o Sasi - Complainant(s)

Versus

The General Manager Piaggio Vehicles - Opp.Party(s)

Adv.T J John

28 Oct 2022

ORDER

DATE OF FILING : 4.3.2016

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  28^th  day of  October, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.80/2016

Between

Complainant                                            :   Akhil K.S., S/o. Shashi,

                                                                    Kadamanath House,

                                                                    Keerithodu, Kanjikkuzhi.

       (By Advs: T.J. Jomon & P.A. Suhas)

And

Opposite Parties                                       : 1. The General Manager,

                                                                      Piaggio Vehicles Private Ltd.,

                                                                      Sky One, 8^th Floor, S.No.210,

Final Plot No.72, Town Planning Scheme,

Yerwada No.1, Kalyani Nagar,

                                                                      Pune – 411 006.

          (By Adv: Gem Korason)

      2. The Manager,

                                                                      S.M.L. Motors,

                                                                      Thodupuzha.

 (By Adv: George Jacob)

                                                                  3. The Manager,
                                                                      S.M.L. Finance Ltd.,

                                                                      Thodupuzha.

                                                                 4.  The New India Insurance Company Ltd.,

                                                                      Munnar Branch, Munnar Micro Office,

                                                                      Carmel Central G.H.Road,  Munnar.

                                                                      (By Adv: Thomas Sebastian)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complainant filed under Section 12 of the Consumer Protection Act, 1986 (the Act, for short).  Complaint averments are briefly discussed here under :

                                                                                                                  (cont….2)

 

• 2  -

          Complainant is a taxi driver, residing in Kanjikkuzhi Village of Idukki District.  He had purchased an Ape Diesel Pick Up vehicle manufactured by 1^st opposite party from 2^nd opposite party, who is its dealer.  For this, complainant had taken a loan of Rs.1,64,000/- from 3^rd opposite party, a sister concern of 2^nd opposite party.  Loan amount was to be repaid in 36 equated monthly instalments of Rs.6,312/-.  Thereafter complainant had taken insurance policy for the vehicle from 4^th opposite party.  He had paid road tax for the vehicle for 5 years amounting to Rs.4,400/- and  obtained registration for the vehicle, registration number being KL-6G-7851.  After purchase, the vehicle had on repeated occasions, stalled and stopped, while it was being plied.  This was owing to manufacturing defects of  vehicle.  Though complainant had requested opposite parties 1 and 2, to repair the vehicle repeatedly, they have not done so.  If the vehicle were to be in running condition, complainant could have earned Rs.500/- daily. Due to manufacturing defects, complainant was unable to ply the vehicle and consequently unable to repay the loan taken from 3^rd opposite party. Arbitration proceedings numbered as arbitration reference No.1/16 were initiated by 3^rd opposite party.  Property of the guarantor were attached in these proceedings.  Complainant had appeared in the proceedings and matter is being contested by him.  On 14.2.2016, when brother of complainant, namely, Arunkumar was plying the vehicle, with 4 packets of cement, chassis of the vehicle  broke, when the vehicle had entered a depression in the road, at 3 points.  On 16.2.2016, Kanjikkuzhi Police had made GD entries regarding the incident.  When complainant had approached opposite parties 1, 2 and 4 for repairing the vehicle, they had directed him to take an estimate of repair work from a workshop.  Accordingly, complainant had obtained an estimate for Rs.67,720/- from New Tech Automobile Workshop in Kanjikkuzhi.  A copy of the same was given to opposite parties. Thereafter, upon enquiry, complainant had realized that chassis of the vehicle had broken due to manufacturing defect.  Hence he had directed opposite parties 1 and 2 to repair the vehicle or to replace the same.  Both have refused to do so.  Thereafter complainant had requested 4^th opposite party to take care of expenses relating to repairs of vehicle.  4^th opposite party had refused to reimburse repair expenses.  Opposite parties 1 to 3 have, after taking money from complainant, given him a vehicle which had manufacturing defect, after getting its price from him. This would amount to deficiency in service and unfair trade practice on their part.  4^th opposite party, after having received premium and issued policy was also bound to meet/reimburse the repair expenses of  vehicle which come to Rs.67,720/-.  Refusal on the part of 4^th opposite party to honour the claim also amounts to deficiency in service and unfair trade practice.  Complainant therefore prays for a direction against opposite parties 1 and 2 to replace the defective pick up van with one without any defects or in the alternate to return the price obtained from complainant for the same.  He prays for a compensation of Rs.1 lakh as he was unable to ply the vehicle regularly due to its defects, from opposite parties 1 and 2.  Complainant further prays for a direction against 4^th opposite party for                                                                                                                    (cont…3)

• 3  -

reimbursement of Rs.67,720/- towards repair of vehicle.  He finally prays for compensation of Rs.50,000/- for mental agony suffered by him due to deficiency in service and unfair trade practice on the part of opposite parties.

 

          2. Opposite parties 1 to 4 have appeared and filed separate written versions.  Case of 1^st opposite party as disclosed from its written version is briefly narrated hereunder :

 

          According to 1^stopposite party, complaint is not maintainable in law or upon facts.  There is no consumer – trader relationship between complainant and 1^st opposite party.  Besides, vehicle was used for commercial purposes and hence outside the purview of Consumer Protection Act.  It is incorrect to say that complainant is a taxi driver and earning his livelihood from the income earned by plying the vehicle.  It is true that 1^st opposite party is manufacturer of Ape Diesel Pick Up Van.  Contentions addressed by complainant that he is the owner of said vehicle is to be proved by him.  1^st opposite party has no connection whatsoever with 3^rd opposite party.  It has no connection with remittance of tax and insurance availed by complainant.  Further contentions that vehicle used to break down repeatedly owing to manufacturing defects are  false.  There was no demand by complainant once or repeatedly, either against 1^st or 2^nd opposite parties for repairing any defects.  Vehicle does not have any manufacturing defects.  It is not true to say that complainants lost his daily earnings as he could not ply the vehicle regularly and that as a consequence he sustained a loss of Rs.1 lakh.  After delivery of vehicle, complainant had not tuned up for regular service of the vehicle as per service manual, before any authorized service centre of 1^st opposite party.  Complainant has not brought the vehicle for periodical services.  Hence he is not entitled for warranty cover besides warranty had already expired also. It is incorrect to say that complainant was unable to ply the vehicle due to manufacturing defects.  Question of non-payment of instalments by complainant and invoking of arbitration proceedings are not in any way connected with 1^st opposite party.  It is false to say that chassis of the vehicle was broken at 3 points, on 14.2.2016, while traversing a depression in the road.  GD entry is falsely made.  There is no possibility of the chassis getting damaged under normal conditions.  Accident, if any, had taken place due to rash and negligent plying of the vehicle. Complainant had not approached 1^st opposite party, complaining about manufacturing defects and nor had 1^st opposite party directed him to obtain an estimate for necessary repairs.  Contentions that an estimate was taken from New Tech Workshop is false and hence denied.  New Tech Workshop is not an authorized service centre of 1^st opposite party.  Further contentions that a copy of estimate was given to 1^st opposite party is also false.  It is incorrect to say that chassis has broken due to manufacturing defect.  There was no request for repair of vehicle.  As mentioned earlier, damage to the vehicle was due to rash and negligent driving by complainant.  There is no deficiency in service, neither  was  there  any  manufacturing defect.  Vehicle was not being periodically                                                                                                                            (cont….4)

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serviced.  It was delivered on 1.10.2014.   Since complainant violated terms of warranty, without servicing the vehicle as prescribed by the company, complainant is not entitled for the reliefs sought for.  Details of service and periodical maintenance of vehicle are stated in its brochure and service manual which were given to complainant at the time of purchasing the vehicle.  He was also informed in detail, with regard to maintenance and service of vehicle as per service manual.  Complainant had, after fully satisfying himself about the condition of vehicle, purchased the same.  He had not approached 1^st opposite party after delivery of the vehicle.  Pick Up Van is a successive product of 1^st opposite party.  It’s performance is better than what is claimed by the company.  There is no unfair trade practice or deficiency in service as alleged.  Complainant has not sustained any loss on these counts.   Complaint is filed only with the intention of making unlawful gains and hence same is to be dismissed with compensatory costs. 

 

          3. Contentions of 2^nd opposite party as contained in the written version are briefly discussed here under :

 

          According to 2^nd opposite party also, complaint is not maintainable in law or upon facts.  True facts have been suppressed by complainant.  It is true that complainant had purchased an Ape Xtra LD BSIII model vehicle from 2^nd opposite party on 1.10.2014.  2^nd opposite party has no knowledge with regard to financial aspect involved in purchase of vehicle or its insurance.  When the vehicle was given to complainant on 1.10.2014, terms and conditions of Piaggio company incorporated in operation, maintenance and warranty manual was given to him.  Complainant was entitled for 5 years service during the warranty period of 8 months, which are hereunder:

1. free service within 30 days or after running 750 – 1000 kms, whichever is earlier.

2. free service within 75 days or after running 5500 – 6000 kms, whichever is earlier.

3. free service within 120 days or after running 10500 – 11000 kms, whichever is earlier.

4. free service within 165 days or after running 15500 – 16000 kms, whichever is earlier.

5. free service within 210 days or after running 20500 – 21000 kms, whichever is earlier.

Complainant was requested to strictly comply with the service conditions mentioned above.  However, after purchasing the vehicle and taking its delivery on 1.10.2014, complainant had not turned up for servicing the vehicle as mentioned in the operation, maintenance and warranty manual.  Therefore, 2^nd opposite party has no liability to repair the vehicle as per warranty conditions.  Complainant has not informed opposite parties 1 and 2 about the manufacturing defect of the vehicle.  These averments are false and hence denied.  Complainant has not produced any material to show that the vehicle has manufacturing defect.  Without producing the same, he could not claim any repairs free of cost or compensation for deficiency in service.  2^nd opposite party has no knowledge with regard to financial dealings between complainant and 3^rd opposite party.  If at all, the vehicle has sustained any damage, it could be only due to negligent and rash                                                                                                        (cont…5)

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driving of the vehicle by complainant.  He himself must have over loaded the vehicle, exceeded the speed limit and driven negligently.  After receiving notice from this Commission, 2^nd opposite party had made enquiries.  He had come to know that on 14.4.2016, complainant had plied the vehicle after over loading it and driven it negligently.  Due to this, vehicle has capsized and fallen 10 feet below the road and sustained damages.  To claim insurance, complainant had influenced Kanjikkuzhy Police and obtained false GD entries.  1^st and 2^nd opposite parties were not informed in writing about the accident by complainant.  He had on his own, obtained an estimate from a private workshop.  He has not produced any documents to show that the vehicle has sustained damages or that it was inspected by a private automobile agency.  Since vehicle was not serviced in accordance with warranty conditions and further since warranty period had already expired, opposite parties 1 and 2 are not legally bound to repair the vehicle or replace the same free of cost.  2^nd opposite party has no knowledge with regard to the terms of service between complainant and 4^th opposite party.  After taking delivery of the vehicle on 1.10.2014, and until the filing of this complaint, complainant had not convinced 1^st and 2^nd opposite parties about any manufacturing defect of the vehicle.  There is no deficiency in service or unfair trade practice on the part of 2^nd opposite party.  Vehicle has not been produced before this Commission.  Under these circumstances, request for getting the vehicle repaired, with the permission of Court, is to be viewed suspiciously.  Complaint is not maintainable and therefore same is to be dismissed with cost. 

 

          4. 3^rd opposite party has filed written version contending as hereunder :

 

          According to 3^rd opposite party, complaint is not maintainable in law or upon facts.  It is true that complainant had availed a loan from 3^rd opposite party concern, for purchasing the vehicle.  He has defaulted in payment of loan instalments causing financial loss to 3^rd opposite party.  Complainant had executed an arbitration agreement with 3^rd opposite party.  As per agreement, any dispute between complainant and 3^rd opposite party is to be settled by arbitration and disputes pertaining to it, if any, are to be settled by approaching Principal Civil Court in Idukki.  3^rd opposite party is not a sister concern of 1^st opposite party.  2^nd and 3^rd opposite parties are 2 independent companies both have separate director boards, independent of each other and separate share holders.  Both have separate seals and agents to represent them.  3^rd opposite party has not committed or caused any deficiency in service given to complainant.  It is the complainant who had cheated the company by defaulting payment of loan instalments.  It is incorrect to say that complainant had taken insurance for the vehicle from 3^rd opposite party after paying Rs.7,000/-.  3^rd opposite party does not have insurance agency for sale of insurance policy.  When loan instalments were not paid by complainant, invoking the arbitration clause in the arbitration agreement, opposite party                                                                                                              (cont….6)

• 6  -

had referred the matter for arbitration.  3^rd opposite party has the right to recover loan overdues with interest and charges from complainant.  3^rd opposite party is functioning with license issued from RBI.  It has not helped anyone to sell any product or goods.  There is no cause of action against 3^rd opposite party.  Complaint is to be dismissed with costs, since it is only a ruse to avoid payment of loan overdues rightly due from complainant to 3^rd opposite party.

 

          5. Fourth opposite party has filed written version contending as hereunder :

 

          Complaint is not maintainable in law or upon facts of the case.  Vehicle bearing Reg. No.KL-6G-7851 was insured with 4^th opposite party as per policy No.76160331150100006389 for the period from 4.2.2016, till 3.2.2017, in the name of complainant.  There is no clause in the insurance policy extending any liability upon insurer to indemnify the insured against loss due to manufacturing defect. 4^th opposite party had agreed only to indemnify the insured against loss of or damage to vehicle insured for the 10 reasons detailed in the policy.  It does not include manufacturing defect. 

 

          Damage to the vehicle, if any, was caused by metal fatigue.  It may be caused by manufacturing defect also both of which is are not covered by the policy.  Hence 4^th opposite party is not liable to indemnify  the complainant for any damage to vehicle as alleged in the complaint.  It is incorrect to say that chassis of vehicle was damaged when it entered a depression in the road.  Complainant had submitted a claim form and an estimate to 4^th opposite party claiming Rs.67,720/- towards repair of the damages caused to vehicle.  It is incorrect to say that Rs.67,720/- is required to repair the vehicle.  Upon receipt of claim form, a licensed surveyor Mr. Binoy Mathew was deputed by 4^th opposite party to investigate the cause of damage and to assess the loss.  Surveyor had inspected the vehicle and submitted a report showing that net liability if the claim were to be valued, will be only Rs.37,700/-.  Surveyor has reported that loss is purely due to metal fatigue which in turn is due to cyclic loading over a period of time.  This has caused material failure and cracks which formed in the chassis by lapse of time.  There was no evidence of any accidental causes resulting in damage.  Damage due to metal fatigue is not covered by policy as mentioned earlier.  There was no deficiency in service on the part of 4^th opposite party in repudiating the claim.  Complainant is not entitled to get Re.67,220/- for repairing the vehicle or any amount  as compensation for deficiency in service and unfair trade practice or anything  towards litigation costs from 4^th opposite party.  Complaint is to be dismissed with costs. 

 

6.  After filing of written version by opposite parties 1 to 4, case was posted for evidence after affording sufficient opportunity to both sides to take steps.  Upon                                                                                                                           (cont….7)

- 7  -

application by complainant, Mr. Mujeeb, AMVI, R.T.O. Office, Idukki was appointed as Expert Commissioner to inspect the vehicle and to submit a report with regard to nature of damages and condition of vehicle.  Accordingly, commissioner had inspected the vehicle with notice to both sides and submitted Ext.C1 report.  It is mentioned in the report, amongst other things,  that chassis of vehicle was not secured by punch welding and this constitutes manufacturing defect. 

 

On the side of complainant, he himself and commissioner were examined as PW1, PW2 respectively, Exts.P1 to P5 and Ext.C1were marked.  Opposite parties 1, 3 and 4 have not tendered any evidence.  Service manager of 2^nd opposite party was examined as an independent witness on his behalf as DW1 and Exts.R1 and R2 were marked on his side.  Subsequently, Exts.R3 to R5 were marked on the side of opposite parties without formal proof.  Thereafter evidence was closed.  No argument notes were filed by complainant or opposite parties.  Counsels appearing on both sides have addressed oral arguments.  Thereafter case was posted for orders.  Now the point which arise for consideration are :

1)  Whether concerned vehicle had any manufacturing defect ?

2) Whether there was any deficiency in service on the part of opposite parties 2 to 4 ?

3)  Reliefs and costs ?

 

7.  Point Nos.1 and 2 are considered together :

 

          We have considered the contentions addressed by able counsels appearing for all the parties and have examined the pleadings and evidence tendered in this regard, in the light of those contentions.  Complainant has primarily alleged that the vehicle had manufacturing defect.  Though initially in complaint, pleadings are addressed to the effect that vehicle had repeatedly broken down due manufacturing defect, specific pleadings with regard to each incident of break down are not pleaded. Complainant does not say whether those were repaired by competent personnel, details of defects found on each occasion, nature of repairs done on each occasion and repair charges paid on those occasions. Hence we are not convinced that these facts are true. Specific allegations pertaining to manufacturing defect are in the later portion of complaint, which are regarding break down of vehicle, while traversing a ditch in road with load.  Complainant has specifically advanced a case that chassis of vehicle had broken when the van was plying with a load of 4 sacks of cement, weight being within  permissible limits, when the vehicle had entered a depression in the road. Matter was reported to police, regarding which, Ext.P4 GD entry was made by Kanjikkuzhi Police Station SHO. We notice that it is specifically stated in complaint that brother of complainant one Arunkumar was plying the vehicle when this incident purportedly took place. However this Arunkumar has not been examined to prove the incident. Complainant’s                                                                                                                   (cont…..8)

• 8  -

evidence regarding the same would be only hearsay and not reliable without corroboration. Learned counsel for complainant would contend that during proceedings, an expert commissioner, namely, AMVI attached to RTO, Idukki was appointed to inspect the vehicle and to report about its condition.  Ext.C1 report was filed by him specifically stating that there was no punch welding for the chassis and that this is a manufacturing defect.  Though commissioner has reported that cracks had developed near to the portion of chassis where steering handle column is fixed, due to cyclic loads, cracks are likely to occur even if the vehicle is driven normally with loads not exceeding  maximum limit, if chassis is not made secure by punch welding.  That being so, opposite party Nos.1 and 2 are liable to replace the defective chassis or in the alternate to bear the costs of replacement of defective chassis.

 

          Counsels appearing for 1^st and 2^nd opposite parties would submit that after purchasing the vehicle, complainant had not brought the vehicle to authorized service centre by 1^st opposite party for effecting mandatory initial service procedure.  5 free services were offered by the company as per service manual which were essentially to be done, if not, warranty provided for the vehicle was liable to be cancelled.  Complainant had not produced the vehicle even for one single service.  It is reported by the commissioner in Ext.C1 that speedometer cable of vehicle was detached. Both rear tyres and stepney were found to be rethreaded and only the front tyre was changed.  Using rethreaded tyres, negligently driving and handling the vehicle, non attendance of mandatory service procedure and over loading of vehicle had caused damages noticed by commission.  Since complainant has not complied with warranty conditions and further since warranty period of 8 months was already over before the alleged accident, neither the first or the 2^nd opposite party is liable to offer free replacement or repair.  They are prepared to replace the chassis upon payment by complainant.  That apart, estimate obtained is not from an authorized service centre of 1^st opposite party.

 

          Learned counsel appearing for opposite party No.3 would submit that complainant has no cause of action against 3^rd opposite party, who has only financed for purchase of vehicle by complainant.  It is a separate company and legal entity than 1^st and 2^nd opposite parties.  Complainant had defaulted in payment of loan instalments and therefore arbitration proceedings were initiated for recovering the loan overdues.  Case is only an experimental one to see whether payment of loan overdues can be avoided.  Learned counsel appearing for 4^th opposite party would submit that insurance company is not liable to compensate the complainant as admittedly the damage to vehicle was occasioned due to manufacturing defect.  As per policy conditions, manufacturing defect is not covered, that apart, estimate produced by complainant is excessive.   

 

                                                                                                                 (cont…9)

 

• 9  -

          As rightly contended by learned counsel appearing for 3^rd opposite party, financier of the vehicle, cannot be held liable for the manufacturing defect of the vehicle.  There is nothing to show that 3^rd  opposite party is a sister company of opposite parties 1 or 2.  3^rd opposite party being a different company altogether, it cannot be held liable for manufacturing defect or deficiency in service as such on the side of opposite parties 1 and 2.

 

          Fourth opposite party, the insured has contended that policy does not cover manufacturing defect.  Ext.R3 is a copy of policy issued in the name of complainant, for the vehicle in question, which is seen to be availed from 4.2.2016 till 3.2.2017.  It is a commercial vehicles package policy and as per clause 1(1) and (2) of policy conditions which are reproduced in the written version are quoted here for easy reference :

 

Section 1 :  LOSS OF OR DAMAGE  TO THE VEHICLE INSUERED

1. The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and / or its accessories whilst thereon.

1. By fire explosion self ignition or lighting
2. By burglary housebreaking or theft
3. By riot and strike
4. By earthquake (fire and shack damage)
5. By flood typhoon hurricane storm tempest inundation cyclone hailstorm frost
6. By accidental external means
7. By malicious act
8. By terrorist activity
9. Whilst in transit by road, trail, inland waterway, lift, elevator or air
10. By landslide rockslide

 

Subject to a deduction for  xxxxxxxxxxxxxxxxxxxxxxx exceeding 10 years 50%

 

2. The Company shall not be liable to make any payment in respect of :

 

1.  Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown failures or breakage or not for damage caused overloading of insured vehicle nor for loss of or damage caused to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.

 

That apart, it is also reported by the Commissioner that vehicle was subject to cyclic loading.  Damage even if presumed to be not owing to manufacturing defect, were probably caused due to normal wear and tear.  In both situations, 4^th opposite party is not liable to indemnify complainant as per terms and conditions of the policy.

                                                                                                                (cont….10) 

• 10  -

          Coming to the main question, whether there was any manufacturing defect or not, complainant is mainly relying upon Ext.C1 report, wherein damages to the chassis is attributed to manufacturing defect.  In Ext.C1, as per 6^th paragraph, it is reported that there were cracks in the front of chassis near to the portion where column of steering portion was attached.  The Commissioner has reported that these cracks are usually caused due to cyclic load.  That said cracks are likely to occur when there is no punch welding also, even if the vehicle is plied normally with permissible weight load.  Such cracks would develop if vehicle is braked suddenly, when it enters a ditch also.  PW2 is the Commissioner.  He was cross examined in detail, by counsels appearing for opposite parties 1 and 2.  Several suggestions were made to the effect that the cracks in the chassis could be due to negligent driving,  using rethreaded tyres, driving at   excessive speeds, driving without proper maintenance and also by all those reasons combined.  These possibilities are not denied by PW2.  However, he was not shaken from his opinion to the effect that cracks in the chassis will be occasioned in the absence of punch welding even if the vehicle is plied normally.  He has also reported that absence of punch welding is a manufacturing defect.

 

          At this juncture, it would be pertinent to note that neither opposite party 1 or 2 have pleaded that chassis does not require punch welding and/or that it was secured by any other method of welding superior to or equivalent to punch welding.  Though RW1, service manager of 2^nd opposite party had deposed that there was mig welding to secure the chassis, Ext.C1 report does not reveal any signs of such mig welding.  No questions were put to the Commissioner during cross examination of 1^st and 2^nd opposite parties as to whether there were other means or method of welding to secure sheet metals of chassis.  Further more, opposite parties 1 and 2 have no case in their written version that chassis of the van was secured by mig welding or any other form of welding, which is superior to or equivalent to punch welding.  That also not have a case that punch welding is not necessary either.  They do not contend that absence of punch welding is not a manufacturing defect.  What surfaces from the pleading and trend of cross examination of PW1 and PW2 by opposite parties 1 and 2 is that they are mainly trying to prove that cracks found in the chassis were due to rash driving of van with over load and non-attendance of periodical service / maintenance of the vehicle.  Contentions were raised that speedometer was found to be disconnected and vehicle was plying with rethreaded tyres, it was also pointed out that not a single free service was attended to by the complainant.

 

          We agree with the submissions made by learned counsels for opposite parties 1 and 2  that in Ext.C1 it is mentioned that service cable of speedometer of the vehicle was found to be disconnected at the time of inspection by Commissioner.  2 of the rear tyres and stepney were rethreaded.  It is also seen from the evidence tendered by opposite                                                                                                              (cont…11)

• 11  -

parties 1 and 2 that after it’s purchase, the vehicle was not brought for any mandatory service prescribed in the service manual.  We also notice that booklet containing operation, maintenance and warranty manual produced by complainant was not attempted to be admitted in evidence by him.  It contains  warranty mentioned in Ext.R2.  We also notice that all the free service coupons in the manual booklet are remaining undetached, indicating that those services were not attended/availed by complainant.  Perhaps this is the reason for not admitting the document in evidence, eventhough it was produced and complainant was examined in court.

 

          In view of the evidence on record and pleadings addressed, we do find that as reported in Ext.C1, service cable of speedometer of the vehicle was detached  at the time of inspection of Commissioner.  2 rear tyres and stepney of the vehicle were found to be rethreaded.  Complainant has not attended any of the 5 free service of the vehicle after purchase and thereafter.

 

          What he now contends is that the chassis had broken down when the van was traversing a ditch in the road with permissible weight load.  To prove this, he has produced certified copy of GD Entry made by SHO of Kanjikkuzhi Police Station, which is admitted as Ext.P4.  Ext.P4 is an extract of the statement given by first informant with regard to the incident reported by him.  P4 does not reveal who gave P4. Apart from this GD Entry, no other document like copies of scene mahazar and inspection mahazar of the vehicle prepared by the Police were produced by complainant. Entire statement, of which P4 is a part, or it’s copy were not produced and nore was it’s maker examined to prove it. There is nothing to show that a crime was registered with regard to the incident reported by complainant. In these circumstances, we find it  difficult to believe that the chassis had developed cracks when it had entered a ditch while traversing with permissible load merely on the basis of evidence of PW1 who was not driving the van or present in it which is supported by a portion of statement given by a person whose identity is not disclosed in P4.  Neither  Ext.C1 nor  Ext.R4 report given by insurance surveyor discloses accidental damage to the vehicle.  Both reports are to the effect that cracks had developed due to cyclic load.  PW2 has reported in Ext.C1 that there was no punch welding and this may cause cracks in chassis even under normal circumstances.

 

          That the vehicle does not have punch welding is a fact which is  not disputed by opposite parties 1 and 2 in their separate written versions.  As mentioned earlier, neither they have a case that any other method of welding was done to secure the metal sheets of chassis, which was superior to or equivalent to punch welding.  That being so, we are inclined to believe the learned Commissioner and his report that there was no punch welding for the chassis which may have caused development of cracks, noticed by                                                                                                                          (cont….12)

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Commissioner.  Punch welding is a method of welding wherein metal sheets of chassis are punched at even spaces with holes  and thereafter riveted and welded to make the chassis secure.  Chassis so secured made by several sheets will be supple and stronger with more load bearing capacity than which are made by single sheets and those which are not secured by punch welding. Such welding would keep sheets in place, in the absence of which, there is every likelihood of the sheets moving against each other, though the movements may be miniscule. This would certainly affect load bearing capacity of chassis as the load will not be evenly disputed, mainly at those points where  load is more.  Uneven spacing of sheets will cause cracks to develop earlier than in the course of normal wear and tear.  The fact such damage could be occasioned due to negligent handling, lack of repairs, driving at excess speed and overloading the vehicle as well, will not eliminate the possibility that such damages could be caused due to manufacturing defects as well.  Learned Commissioner has reported that going by the wear and tear of the tyres, the vehicle must have run about 30,000 kms.  At this juncture, after a lapse of 3 years from purchase, it may not be possible for the Commissioner to report with  certainty that cracks in the chassis were only due to manufacturing defect, i.e., lack of punch welding.  However, it is evident that such a manufacturing defect will lead to cracks in the chassis even under normal circumstances is also relevant.  For the reasons outlined earlier, we find that lack of punch welding of the chassis was certainly a manufacturing defect.  The vehicle, right from the day when it was plied in public road, ran a potential risk of chassis being breaking down due to lack of proper punch welding.  That it may not have happened or the fact that there was cyclic loading also will not absolve the manufacturer from the liability of manufacturing defect.  He was supposed to manufacture and deliver a vehicle which can be safely plied under normal conditions to the end customer.  Instead the vehicle delivered in this case had a potential risk of braking down due to lack of proper securing of metal sheets of chassis. It is not relevant whether vehicle was driven negligently or that warranty conditions were violated by the customer. Delivery of a vehicle with manufacturing defect  in fact goes against the representations made by manufacturer in it’s vehicle booklet given to purchaser that vehicle was free of defects, road worthy and safe and further that it did not pose a threat to life or property of it’s driver, owner or 3^rd parties.  It may be true that complainant may not have brought the vehicle for service at periodical intervals.  It may be also that he had violated the warranty conditions.  We can also presume that the vehicle had broken down  due to cyclic damage or in an accident.  All these will not absolve a manufacturer from the liability of having sold a vehicle which had manufacturing defect and plying of it was risky affair which may have occasioned danger to life and property.

 

          In so far as 2^nd opposite party is concerned, we do not think that there was any latches on it’s part in not replacing the defective chassis or repairing it free of cost, since                                                                                                            (cont…13)

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complainant has not complied with the warranty conditions and also for the reason that warranty period was already over. We also notice that there is no reliable evidence from the side of complainant that he had informed 1^st or second opposite party about manufacturing defect of the vehicle as mentioned in complaint. We also find that 3^rd opposite party is not in any way connected with the claim as a necessary party. As far as 4^th opposite party is concerned, the insurer has no liability to indemnify the complainant owing to the loss caused by manufacturing defect of the vehicle or cyclic use or loading. 

 

          1^st  opposite party being the manufacturer is directly liable for the manufacturing defect as such.    Point Nos.1 and 2 are answered accordingly.

 

8.  Point No.3 :

 

          We have already found that 1^st opposite party being the manufacturer has supplied a defective product to complainant through its dealer, the 2^nd opposite party.  That being so, he is liable to compensate the complainant, in this regard.  Complainant has, as first relief prayed for a direction against opposite parties 1 and 2 for replacement of diesel pick up van which had manufacturing defect, with a new van having no defects or in the alternate to reimburse the price paid by him for purchase of the same.  Complainant does not have a case that the defect could not be cured by replacement or necessary repairs.  In this connection, he has submitted Ext.P5 estimate obtained from an automobile workshop.  As per Ext.R4 survey report also, the damage is repairable.  Total repair costs including labour charges as per survey report is Rs 43,270/- whereas it is Rs.67,220 in P5. Difference is due to deductions for depreciation made in R4.  Complainant himself has come with this complaint as there was refusal by 4^th opposite party to indemnify him by paying the repair charges.  Since the defect is repairable, we do not think that it is necessary to direct opposite parties 1 and 2 to provide a new defect free vehicle to complainant in place of the vehicle which was already used for 30,000 kms, without attending periodical services or necessary maintenance.  It will suffice if there is a direction to opposite party 1 to repair the vehicle free of cost by tending  to the specific manufacturing defect or in the alternate to pay Rs.67,220/- to complainant. We prefer  to  order  repair  charges as per  Ext.P5, since   engine    and  components will not be available at depreciated prices mentioned in Ext.R4.  Considering the circumstances of the case, in particular the manner in which  vehicle was used without attending periodical services, we are of the view that compensation for sale of defective goods to him by opposite parties 1 and 2 could be quantified at Rs.10,000/- payable by 1^st opposite party.  In view of our findings on above Point Nos.1 and 2, no direction against 4^th opposite party is required. There is no evidence to show that complainant could have earned Rs.500/- daily by plying the vehicle. Log book or receipt counterfoils were not produced to show how much k.m. vehicle had run, load carried by it or                                                                                                                                 (cont….14)

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amounts received towards fare. Since we have already quantified the compensation in total at Rs.10,000/-, while  considering relief No.2, there is no necessity to award further compensation as prayed for as clause 4. 

                                  

          In the result,

1. Complaint is dismissed as against Opposite parties 2 to 4 with costs of  Rs.2000/- each.  

It is allowed in part as against 1^st opposite party, upon following terms :

2.  1^st opposite party shall repair the manufacturing defect of the chassis, if the vehicle is brought to any authorized service centre, by complainant, and if repair is not possible replace it  free of cost, without delay within 45 days at the most from the date when the vehicle is so brought by complainant to any of it’s authorized service centres.  If not, 1^st opposite party shall pay Rs.67,220/- to complainant towards repair charges with interest at the rate of 12% per annum from the date of this petition, which is 4.3.2016, until realization. It is made clear that payment of repair charges can be claimed only if defect is not tended to as ordered above despite the fact that vehicle was brought to any authorized service centre of first opposite party with prior notice of 15 days to opposite party No.1 or 2, during working hours, with regard to date and the authorized centre of complainant’s choice where such facility is available.

 

3.  1^st opposite party is further directed to pay a compensation of Rs.10,000/- to complainant within 45 days from the date of receipt of a copy of this order, if not, the amount will carry interest at the rate of 12% per annum, from the date this order, till date of realisation.

 

4.  1^st opposite party shall pay costs of Rs.5,000/- to complainant, of this litigation.

 

Interim orders passed in this case shall stand vacated.  Extra copies filed by parties shall be taken back by them without delay. 

 

                     Pronounced by this Commission on this the  28^th  day of October, 2022

 

                                                                                                 Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                           Sd/-

        SMT. ASAMOL P., MEMBER

                          Sd/-

       SRI. AMPADY K.S., MEMBER

 

                                               (cont....15)

• 15  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Akhil K.S.

PW2         -  Mujeeb P.S.

On the side of the Opposite Party :

DW1        -  Namas Joy.

Exhibits :

On the side of the Complainant :

Ext.P1      -   copy of policy schedule cum certificate of insurance.

Ext.P2      -   copy of RC Book.

Ext.P3      -  copy of arbitration statement.

Ext.P4      -  copy of GD entry made by SHO, Kanjikkuzhy.

Ext.P5      -  copy of estimate from New tech Automobile Workshop.

Ext.C1     -   Commission Report dated 3.2.2017.

On the side of the Opposite Party :

Ext.R1     -  copy of vehicle history card.

Ext.R2     -  copy of warranty terms and conditions.

Ext.R3    -   copy of policy schedule cum certificate of insurance.

Ext.R4    -  copy of vehicle survey report.

Ext.R5    -  statement of account of the loan.

 

 

 

 

 

                                                                                          Forwarded by Order,

 

 

 

                                                                                     ASSISTANT REGISTRAR