DATE OF FILING : 16.2.2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of March, 2017

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.58/2016

Between

Complainant : Benny George,

Vaniyakizhakkel House,

Muthalakkodam P.O.,

Kothukuthi, Thodupuzha, Idukki.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. The Manager,

Poomkudy Force,

Edappally, Kochi – 24.

(By Adv: Lissy M.M)

2. The Managing Director,

Force Motors Ltd.,

Akurdi, Sulekha,

Pune – 411 035.

(By Adv: Shiji Joseph)

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

Complainant had purchased an Ambulance for his livelihood manufactured by 2^nd opposite party, from 1^st opposite party, the authorised dealer of 2^nd opposite party, by paying an amount of Rs.11 lakhs with the financial aid of Indian Bank, Thodupuzha branch. At the time of delivering the vehicle on 20.11.2015, the 1^st opposite party had made belief that the vehicle is of high standard and it can be used without any trouble for a long period and the company offers a warranty for a period of 3 years or 3 lakh kilometres which comes earlier. Initially, the vehicle was not getting the speed above 70 kms and this matter was duly intimated to the 1^st opposite party. At that time, 1^st opposite party replied that it will be okay after the 1^st service. While so, on 17.1.2016, when the complainant went to Lissi hospital, Ernakulam, with a patient in the ambulance, in the

(cont....2)

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hospital compound itself the vehicle stopped functioning. At that time, the vehicle speedometer reading was 3000 kms. On intimation, the workshop people of 1^st opposite party came to the scene and took the vehicle to the workshop. After inspection, the workshop people opined that it caused due to the loosening of fan belt. Thereafter also when the vehicle was running above 70 km, it was automatically stopping and too much smoke was coming out of the engine. Upon examination, the 1^st opposite party stated that it was due to the defect of the pump and further stated that it cannot be replaced but it can be repaired. The complainant demanded for replacement of pump as per warranty terms. But instead of replacing the defective pump, 1^st opposite party was entrusted it for repair in a local workshop to the 1^st opposite party, by the staff of 1^st opposite party, in a motor bike, the pump was fell down on the road and more damages were caused to it. The 1^st opposite party refitted the damaged pump to the vehicle and returned the vehicle to the complainant.

Thereafter on 6.2.2016, when the complainant was taking a patient, who is suffering from chronic heart disease, from Thodupuzha St. Mary's hospital to Kottayam Medical College Hospital, when they reached Perumattom, near Moolamattam, the vehicle repeated the same complaint at a stage of stand still. When the complainant again tried to start the vehicle, he noted that the diesel was flowing from the pump. The relatives of the patient brutally manhandled him and it caused much insult and mental agony. When the matter was informed to the opposite party, he advised that to keep the vehicle at the residence of the complainant. After 2 days, the mechanic from the 1^st opposite party workshop dismantled the pump from the vehicle and refitted it after 4 days, after curing the defects.

Now the vehicle emits excess smoke from its engine and cannot ply it speedily. So many times the complainant intimated the matter to the opposite parties but they are not turned up to cure the defect of the vehicle permanently. Complainant further submitted that he cannot use the vehicle even for once within a period of 3 months. The vehicle was in the workshop for more than 17 days. Hence he cannot remit the loan properly, since the vehicle was not in plying condition for more days. Hence he caused a damage at a tune of Rs.50000/- and also suffered a lot. Hence he approached Forum alleging deficiency in service from the part of opposite

(cont....3)

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parties 1 and 2 and prayed for getting the relief such as to direct the opposite parties to pay an amount of Rs.50,000/- as damages and Rs.1 lakh as compensation and Rs.5000/- as litigation cost.

On notice, opposite parties entered appearance and filed version. 1^st opposite party, in their version contended that the complainant is not a consumer, as the vehicle was being used for commercial purpose and there is no charge of deficiency in service or negligence on the part of this opposite party. This opposite party had denied all the contentions in the complaint specifically. The complainant had reported to the opposite party that the battery of the vehicle was not charging as a result of loose fan belt on 17.1.2016 and this opposite party had sent their technician immediately and solved the problem. The opposite party further contended that, on 20.1.2016, the complainant had reported the complaints such as steering sound etc. and entrusted the vehicle to the 1^st opposite party workshop on 16.3.2016 and received back on 24.3.2016, after getting defects cured to the complainant's satisfaction and he had endorsed the same in the job card. Hence no deficiency in service can be alleged against the opposite party.

In their version, 2^nd opposite party contended that, as per the terms and conditions of the warranty, in respect of proprietory items, the respective manufacturer are giving warranty. In this case, the fuel injection pump manufactured by Bosch company and warranty is handled by them. Hence this company has to be arrayed in the party array for the just and equitable disposal of the complaint. 2^nd opposite party further contended that the salient features of terms and conditions of warranty applicable to travellor vehicle is given in details in the owners manual and also informed to the complainant at the time of delivery of the vehicle. The alleged concerns of poor pick up and white smoke are the result of plying the vehicle in high speed in hilly areas, rough roads without sufficient fuel in the tank. This may cause starvation of lubrication to internal components of the Rotary fuel injection pump. Therefore there is no manufacturing defect in the said vehicle or any of its components including fuel injection pump. As per the available records, it is clear that the 2^nd opposite party has provided warranty benefits of the said vehicle of the complainant, as and when the said vehicle was reported at the dealership as under warranty. (cont....4)

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Then regarding the alleged incident of falling of pump during transit, was accidental and not happened intentionally. Due to the fall, nothing has happened to the pump. The said pump was again inspected by the dealer and found it is perfectly working and the complainant was made aware of the situation honestly and openly.

Further stated that, when ever the complainant reported the said vehicle, the 2^nd opposite party have attended the vehicle to his satisfaction. The 1^st opposite party had provided services to the vehicle to his satisfaction even after filing this complaint. Hence there is no deficiency in service on the part of the 2^nd opposite party and the said vehicle is under the custody of complainant and he is using it continuously and extensively.

Evidence adduced by the complainant as PW1 and Exts.P1 to P4 and C1 were marked. Ext.P1 is copy of RC Book. Ext.P2 is copy of terms and conditions of warranty policy. Ext.P3 is copy of warranty job card. Ext.P4 is copy of RC Book of Reg. No.KL-38/229. Ext.C1 is commission report. From the defence side, one Binu J. Philip, Supervisor of 1^st opposite party examined as DW1 and Exts.R1 to R5 were marked. Ext.R1 is copy of mark list of DW1. Ext.R2 is job card dated 20.11.2015. Ext.R3 is copy of job card dated 10.2.2016. Ext.R4 is copy of job card dated 16.2.2016. Ext.R5 is copy of entire service history. Ext.R6 is job card dated 20.1.2016. Heard both sides.

The point for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

The POINT:- The learned counsel for the opposite party argued that there was some initial problem in the vehicle, which were rectified and the vehicle did not suffer any manufacturing defect as the vehicle is running smoothly now also. Had there been any manufacturing defect, the vehicle could not have run so much. Moreover, when ever the defect pointed out by the complainant, the same was rectified. These opposite parties always fulfilled his obligations under the warranty and beyond that no obligation put upon him by any other law. Further pointed out that the Ext.C1 report prepared by a Retired Joint RTO is not reliable and cannot be taken as a

(cont....5)

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part of evidence, as he has not inspected the vehicle and he given his report only on the basis of pleadings.

At the same time, the learned counsel for the complainant argued that the vehicle started troubles just after a few days of its purchase. All hands of defects were faced and the vehicle is taken to the workshop so many times and the vehicle was kept there more than 17 days in total. Being an ambulance, the complainant expected a better performance comparing same class of vehicles. But this vehicle shows continuous problems even in the case of speed, which is highly necessary for an ambulance vehicle.

We have carefully considered the arguments advanced by both the parties and have gone through the records. First of all, we are not inclined to accept the plea of the opposite parties that the vehicle was purchased for commercial purpose and therefore the complainant was not a consumer. The vehicle was being used by the complainant himself for his livelihood and this fact is not rebutted by the opposite parties.

It is also considered that whenever the vehicle was brought to the 1^st opposite party, with any problem, the defect was removed by repair and here, no spare parts are replaced. It is also important to note that the warranty includes any repair and replacement of parts. Here the main question is regarding the defect of fuel injection pump. It is an admitted fact that the said pump is defective, whether it is due to the mishandling of the vehicle or otherwise. Here the contention of 1^st opposite party is that the warranty of spare parts are provided by the concerned manufacturer and the opposite parties are not liable and cannot be admissible and justifiable since the manufacturing company extending warranty to their vehicles, they are bound to compensate their customers without putting lame excuses. In this case, by perusing the exhibits, and commission report, we can see that the 1^st opposite party refitted the defective fuel injection pum in the vehicle, instead of replace it with a new one under warranty and also we cannot deny the fact that, the vehicle was kept with the 1^st opposite party workshop so many days. But no evidence produced by the complainant to convince the Forum that the vehicle is having any internal manufacturing defect and it is seen that the complainant is using the vehicle still without any major defects. Obviously, no case is made out

(cont....6)

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for replacement of the vehicle at this stage. Accordingly, we do not find any justification for replacement of vehicle, on the other hand, the 1^st opposite party is duty bound to replace the defective fuel injection pump, since it covers warranty. We are of a considered view that the complainant has suffered a lot of inconvenience and misery due to the improper functioning of the vehicle right from the initial days of purchase. As no purchaser of new vehicle have been think about that he would have been going to garage to get the vehicle repaired so often even if the repair may be minor. If this has happened, the purchaser is definitely liable to receive some compensation for inconvenience and mental agony faced by him due to supply of a vehicle having some defects. Accordingly we deem it proper that the complainant must get to replace the defective fuel injection pump with a new one with free of cost and also entitled to get compensation and cost. Since absence of any evidence regarding the damages caused to the complainant as alleged, the Forum is not in a position to award any damage as stated in the complaint.

Based on the above discussions, the complaint partly allowed. The 1^st opposite party is directed to replace the fuel injection pump of the alleged ambulance vehicle with a new one in free of cost and also directed to pay an amount of Rs.25000/- as compensation to the complainant for inconvenience, misery and mental agony faced by the complainant by using the said vehicle and also directed to pay an amount of Rs.3000/- as cost, within a period of 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default till its realisation.

Pronounced in the Open Forum on this the 30^th day of March, 2017

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SRI. BENNY. K., MEMBER

(cont....7)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Benny George.

On the side of the Opposite Party :

DW1 - Binu J. Philip.

Exhibits :

On the side of the Complainant :

Ext.P1 - copy of RC Book.

Ext.P2 - copy of terms and conditions of warranty policy.

Ext.P3 - copy of warranty job card.

Ext.P4 - copy of RC Book of Reg. No.KL-38/229.

Ext.C1 - commission report.

On the side of the Opposite Party :

Ext.R1 - copy of mark list of DW1.

Ext.R2 - job card dated 20.11.2015.

Ext.R3 - copy of job card dated 10.2.2016.

Ext.R4 - copy of job card dated 16.2.2016.

Ext.R5 - copy of entire service history.

Ext.R6 - job card dated 20.1.2016.

Forwarded by Order,

SENIOR SUPERINTENDENT