BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21st day of December 2013
Filed on : 03-05-2011
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.223/2011
Between
Sr. Princy, : Complainant
Headmistress, (By Adv. Tom Joseph, Court road,
Holy Family English Medium School, Muvattupuza)
East Marady P.O.,
Muvattupuzha-686 673.
Vs
1.The Manager, : Opposite parties
M/s. Eicher, VE Commercial (By Adv. V. Krishna Menon,
Vehicles Ltd., MS & S Complex, Menon & Menon, HRS Complex,
Ground Floor, 35/1947 A, 1st floor, SRM road, Kochi-682 018
Next to International Stadium,
Palarivattom, Kochi-682 025.
2. M/s. PSN Automobiles Pvt. Ltd.,
35/189, National Highway,
Palarivattom, Kochi-682 025.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased an Eicher bus from the 2nd opposite party on 23-07-2009 for Rs. 8,00,000/-. 36 months warranty was provided to the vehicle. The vehicle was purchased for the conveyance of students. The school is not collecting fee for the same. While so, the vehicle started showing various complaints including brake failure, radiator leakage, brake fluid leakage, alignment problem, flat from breakage etc, right from the beginning. The vehicle was repaired on several occasions by the opposite parties. But the brake fluid leakage, radiator leakage are still persisting. There are several holes appearing in the platform of the vehicle. Before covering 10000km., the brake assembly was replaced also. Due to the above said defects, the vehicle was not plied satisfactorily for a single day. Though the defects occurred within the warranty period, the 2nd opposite party is now insisting for repairing charges and price for replacement of the parts including radiator. Since the vehicle had to be repaired before the completion of the summer vacation, the complainant was compelled to pay the repairing charges demanded by the opposite parties. The recurring defects of the vehicle supplied by the opposite parties is due to its manufacturing defect. The complainant is entitled for the replacement of the vehicle with a defect free one and also entitled for Rs. 1,00,000/- as compensation for the mental agony and hardships suffered due to the defects of the vehicle together with costs of the proceedings. This complaint hence.
2. The version of the 1st opposite party is as follows:
The 1st opposite party does not admit that the complainant is a consumer as defined under Section 2(1) (d) of the Consumer Protection Act. The vehicle purchased by the complainant had a warranty only for 12 months. It was only the engine and gear box that had a warranty for 36 months. During the period of warranty whenever the vehicle of the complainant was taken to the workshop of the 2nd opposite party alleging some defect in the vehicle and such of those complaints being minor in nature were attended to, to the satisfaction of the complainant. During warranty the complainant had been charged only for consumable and wear and tear items which the complainant was liable to pay as per the conditions of warranty. During the warranty period the complainant never voiced a complaint with respect to the radiator of the vehicle. After two months from the expiry of warranty the complainant complained about the leakage of the radiator. The repairs were carried out on payment basis. The vehicle is free from any manufacturing defect. There is no deficiency in service on the part of the 1st opposite party. The complaint deserves dismissal.
3. The 2nd opposite party filed a separate version raising the very same contentions that of the 1st opposite party.
4. No oral evidence was adduced by the complainant. Exts. A1 to A3 and X1 were marked. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the counsel for the parties.
5. The points that arose for consideration are as follows:
i. Whether the complainant is a consumer within the ambit of the
Consumer Protection Act. ?
ii. Whether the complainant is entitled to get replacement of the
vehicle in question?
iii. Whether the opposite parties are liable to pay compensation and
costs of the proceedings?
6. Point No. i. The opposite party contented that the complainant is not a consumer within the purview of the Consumer Protection Act. The complainant stated that they have purchased the vehicle for the transport of their students that too without levying any fees. Besides the averments in the version nothing is recordically available before this forum to substantiate the contentions of the opposite party. For the same reasons the contention is rejected.
7. Point No. ii. On 23-07-2009 the complainant purchased a bus from the 2nd opposite party which was manufactured by the 1st opposite party at a price of Rs. 8 lakhs evident from Ext. A1 order booking form. According to the complainant time and again they had to approach the 2nd opposite party to get the defects of the vehicle rectified within the warranty period , but the opposite parties failed to rectify the same since the vehicle suffers from inherent manufacturing defect. The opposite parties maintain that the vehicle is free from any manufacturing defects and as and when the complainant approached the 2nd opposite party to rectify the minor defects of the vehicle they duly carried out the same to the satisfaction of the complainant. The learned counsel for the opposite parties relied on the following decisions rendered by the Higher Judiciary.
a. K. Varkey Varghese Vs. Oriental Insurance Co. Ltd., II (2001) CPJ
422 KSCDRC
b. Cheema Engineering Services Vs. Rajan Singh (1997) 1 SCC 131
c. Laxmi Engineering Works Vs. PSG Industrial Institute II (1995) CPJ
1 (SC)
d.Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd.
(2011)1 SCC 525
e. Meera Industries Vs. Modern Constructions II (2009) CPJ 402 (NC)
f. Chandra Bhushan Prasad (DR.) Vs. LIC of India IV (2010) CPJ 187
(NC)
g. Economic Transport Organization Vs. Cheran Spinning Mills (P)
Ltd. & Anr 1(2010) CPJ 4 (SC)
h. P.S. Kalantri (DR.) Vs. Wipro GE Medical Systems Ltd. 1 (2010)
CPJ 135 (NC)
i.Tata Engineering & Locomotive Co. Ltd. Vs. T. Nagaraju 1 (1997)
CPJ 14 (NC)
8. Admittedly no expert evidence is on record to show that the vehicle suffers from inherent manufacturing defect. During the proceedings at the instance of the complainant the 2nd opposite party has produced the service history of the vehicle which was marked as Ext. X1 series. It is not in dispute that the 1st opposite party has provided warranty to the vehicle in the following manner. (evidenced by Ext. A3 warranty)
“1(a) Warranty shall be in force until the expiry of a period of 36 months from the date of installation for engine and gear box and 12 months from the date of installation for rest of the aggregates of the vehicle irrespective of kilometer age covered during the period. Date of installation is as entered in the warranty Registration & Installation Certificate.”
9.Ext. A3 would show that the 1st opposite party has provide 36 months warranty for the engine and gear box alone and for the remaining parts they have provided 12 months warranty. The complainant does not have a case that the engine and the gear box suffer from any defect. However after the completion of the 12 months warranty the 2nd opposite party rectified the defects noted by the complainant as a gesture of good will without levying any charges. We do not find any deficiency in service on the part of the opposite parties especially in view of the decisions cited by the learned counsel for the opposite parties.
10. The point before us now is whether the complainant is entitled to get replacement of the vehicle. At the outset it is very pertinently mentionable in the complaint that right from the beginning of the purchase of the vehicle, the vehicle was not plied satisfactorily for a single day. In spite of that the vehicle was plied with minor defects cured. The impertinence and arrogance in carrying students in such a vehicle as complaint of can not be connived at, at such a risk what could have happened is left to imagination. The complainant is prima-facie at fault we find. However the warranty period being exhausted and in view of the judgment in Maruti Udyog Ltd Vs. Susheel Kumar Gabgotra and Another 2006 (4) SCC 644. We are to hold that the defective parts of the vehicle shall be repaired to the satisfaction of the complainant on payment of the same.
11. Point No. iii. For reasons stated in point No. ii we further do not indulge in the matter and refused to award compensation and costs of the proceedings.
12. In the result, we are only to hold that the complainant is not entitled to get any of the reliefs as prayed for. Ordered accordingly. .
Pronounced in the open Forum on this the 21st day of December 2013.
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of order booking form
A2 : Copy of memorandum of
registration.
A3 : Copy of warranty
X1 series : Job cards
Opposite party’s exhibits: : Nil
