DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the  19^th   day of May  2014 

Present:  Smt.Seena.H.  President

              Smt.Shyni.P.R. Member

              Smt.Suma.K.P. Member                      Date of Filing :  16/07/2012

           CC No.125/2012

Girishkumar.C

S/o.Chami,

Thazhemurali,

Industrial Estate Post,

Olvakkode,

Palakkad - 678631

(By Adv.K.Sivadas)                                        -                  Complainant

        Vs 

1.The Manager,

   Force Motors Ltd.

  Akurdi, Pune – 411 035

  Maharashtra

(By Adv.E.Ramachandran)

2.The Manager,

   Radhia Motors,

   Guruvayur Road,

   Punkunnam,

   Thrissur – 680 002

(By Adv.E.Ramachandran)

3.The Manager,

   Radhia Motors,

   Coimbatore Road,Kottupatha,

   Palakkad – 678 007

(By Adv.E.Ramachandran)

4. Poomkudy Force,

   Poomkudy House,

   N.H.47 Road,

   Edappally, Cochi – 682 024                          -                  Opposite parties

(By Adv.S.M.J.Vince)

 O R D E R

Order by Smt.K.P.SUMA. MEMBER

Case of the complainant is as follows:

Complainant purchased a trump 15 autorickshaw from the 3^rd opposite party on 22/7/2011 vide purchase order 1010 dated 22/7/2011 for a sum of Rs.2,76,219/- and the same was registered as No.KL-09-AB-0735.  The warranty period of the vehicle was 12 months or 60,000 kms which ever occurs earlier.  The vehicle was purchased with the financial assistance of M/s.Cholamandalam Finance, Thrissur. Complainant alleges that the vehicle was promptly availed all the services. He has carried out all the necessary care and checks on daily basis without any failure. He also submits that he had taken particular care to use only high quality lubricants and fuel as recommended by first opposite party, the manufacturers of the vehicle.

All the periodical maintenance were given as per the routine maintenance chart as recommended by first opposite party through 3^rd opposite party. Complainant submits that he had used the vehicle with due care without any overloading and over speeding and rough breaking.  All the maintenance work was done by expert service engineers of the first opposite party through 3^rd opposite party. After the completion of first service done by 3^rd opposite party the vehicle started to show troubles. Immediately the complainant took the vehicle to 3^rd opposite party and it was rectified.  After a week time again and again the same defect occurred and the complainant had approached 3^rd opposite party for repair. The 3^rd opposite party recommended to take the vehicle to the second opposite party who is also a dealer of 1^st opposite party. After thorough check up of the vehicle 2^nd opposite party reported that cylinder head of the vehicle was cracked and it should be replaced for which they demanded Rs.15,000/- being the repair charges and cost of spare parts.  The vehicle had covered 30,000 Kms. The defect reported was only due to manufacturing defect and it had occurred within the guarantee and warrantee period.  The complainant alleges that the opposite parties are liable to take back the defective vehicle and replace a new vehicle. Since the major part of the vehicle is defective it cannot be repaired properly. Eventhough complainant contacted 2^nd and 3^rd opposite parties there was no response from their side. The act of opposite parties amounts to deficiency of service and unfair trade practice.   Hence the complaint.

Notice issued to opposite parties for their appearance. Opposite party 1 entered appearance but no version was filed. 2^nd and 3^rd opposite party entered appearance and filed version stating the following contentions:

The complaint is not maintainable and has absolutely no bonafides. The opposite parties 2^nd and 3^rd admits that complainant has purchased trump 15 vehicle from 3^rd opposite party as alleged in the complaint. But the vehicle which has been purchased by the complainant is not an autorickshaw but a four wheeler goods vehicle.  The averments in the complaint that the vehicle had promptly availed all the services and that complainant has carried out all the necessary care and checks on daily basis without failure, that the complainant took particular care to use only quality lubricants and fuel  and carried out all periodical maintenance as per the routine maintenance chart as recommended by the first opposite party through 3^rd opposite party and used the vehicle with due care without overloading and over speedy and rough breaking are all denied by 2^nd and 3^rd opposite party.   As per the conditions of the warranty complainant has to avail of all mandatory periodical services without any fail. Complainant did not avail the 2^nd and 5^th services due to which the benefit under the warranty has lapsed. The complainant has even suppressed the fact that it was goods vehicle. He was regularly using the vehicle for cattle transportation through muddy, rough, non road and bad terrains. Moreover there is no manufacturing defects as alleged by the complainant in the complaint. The defects in his vehicle was the result of the abuse of the vehicle by the complainant since the vehicle having rear engine mounted one, during the transportation of cattle, dung and urine of the animals drain through  the top of the radiator and same gets clogged  in the fins of the radiator, thus effecting the water circulation and cooling system of the engine leading to overheating of the engine and expansion parts with failure.  The complainant has to make himself ensure that the dung and urine of the animals does not drain through the top of the radiator. This was pointed out to the complainant during the services availed by him. The complainant repeated the same acts due to which the cylinder head of the vehicle got damaged and inspite of the fact that complainant is not entitled to warranty benefit, as a goodwill gesture, the parts were replaced without demanding any cost from him.

There is no privity of contract  between the complainant and 2^nd opposite party. Complainant has not approached 2^nd opposite party till date  the vehicle has not  been entrusted to any of the opposite parties and hence  it is not with the 2^nd opposite party as alleged in the complaint. The averments that major parts of the vehicle are defective are absolutely incorrect. The attempt of the complainant to wriggle out of his liability  towards the financer by making a false case. There is no deficiency  of service on the part of opposite parties. There is no manufacturing problems to the vehicle and complainant cannot demand replacement of the vehicle.   Hence the complaint has to be dismissed with cost. 

Complainant filed application seeking permission to the Power of Attorney holder to conduct the case. Application allowed since there was no objection from the part of opposite parties.

Complainant filed  chief affidavit as well as Exhibits. Ext. A1 to A4 was marked on the side of complainant. Opposite parties 2 & 4 filed petition seeking permission to cross examine the complainant. Application was allowed and complainant  present was cross examined. But opposite party’s counsel was not present for  cross examination.  Hence application was dismissed.

Complainant filed petition for appointment of expert commissioner.  Shri.Appu.P.M. Assistant Motor Vehicle Inspector, RTO Office, Palakkad was appointed as expert commissioner to examine the defects alleged about the vehicle. Commissioner inspected and filed detailed report which was marked as C1. Opposite parties filed objection to C.R.  Complainant filed petition to implead supplemental 4^th opposite party. Application was allowed and M/s.Force Motors Ltd. was impleaded as supplemental 4^th opposite party.  Opposite party 4 entered appearance and filed their version denying the allegations. 4^th opposite party neither the manufactuer nor the seller of the vehicle. Hence they contended that they are unnecessary party to this proceedings. Complainant is not aware of date of purchase of the vehicle and payment of price and its warranty and the financial assistance from Cholamanadalam Finance Thrissur. Hence the same was denied by 4^th opposite party.   The averment of defect in vehicle alleged by the complainant and its recurrence was denied by opposite party as false. On 2/4/2012 the complainant had informed that complainant’s vehicle wherein registration No.KL-9-AB-735 had a break down at Kaladi, Angamali Road. Accordingly 4^th opposite party deputed its service personnel.  Service personnel of the 4^th opposite party on inspection found that (a) Engine not cranking (b) coolant in the radiator  was empty and (c) engine oil level is too low. Accordingly the service personnel of the 4^th opposite party shifted complainant’s vehicle with the help of crane service. 4^th opposite party received the vehicle as per job card No.JC000012 dated 2/4/2012. After discussing with the complainant and on instruction from the complainant the engine of the vehicle was dismantled and found damage to piston (seized) and a crack in engine head is also noticed.   Complainant informed the fourth opposite party that he will do the necessary repairs for his vehicle at his home town and will make arrangements for transporting the vehicle from the service centre of the 4^th opposite party. Accordingly 4^th opposite party has not carried out any repair in the complainant’s vehicle. But thereafter there was no response from the complainant.  Inspite of repeated requests complainant had failed to take delivery of the vehicle. Hence, the opposite party issued a letter intimating the complainant that complainant is liable to pay charges @Rs.200/-  from 4/4/2012 onwards. Complainant is liable to pay Rs.48,000/- as bay charges and Rs.2,500/- towards towing charges and Rs.1000/- dismantling charges. Instead of making the above payments, the complainant had filed this complaint.  The various allegations as deficiency and unfair trade practice alleged in the complaint are absolutely false and denied by the fourth opposite party. Hence complaint against fourth opposite party may be dismissed.

1. Issues arises for consideration whether there is any manufacturing

defects as alleged by the complainant ?

1. If so, what are the relief ?       

Evidence consists of affidavits of both parties. Ext.A1 to A4 marked on the side of complainant.  Ext.B1 marked on the side of opposite party. Commission report was marked as Ext.C1.

Commissioner has stated that he had inspected the vehicle  at the service centre of 4^th opposite party in the presence of complainant and 4^th opposite party. None of the other opposite parties were present at the time of inspection inspite of notice issued to them.    He has stated that the vehicle is a LMV GV of make Force motors, model Name TRUMP15. The vehicle was guaraged for more than one year at the premises of 4^th opposite party and found that the engine was partially dismantled. The engine parts and the body of the vehicle was rusted, the battery was discharged and sulphated, the engine could not be cranked due to entry of moisture to the internal elements of the engine causing rust. From the service records, the engine was dismantled there for water leakage through the silencer and it is detected that a portion  facing to the combustion chamber having a small crack of 2 mm length to the water gallery of the cylinder head between the walls. This was the cause of water leak and engine failure. The cooling system elements such as Radiator, Water Pump and Hoses were found in tact. No other defects was noted  while on the time of guaraging the vehicle one year back.   Now a major overhaul on the engine including cylinder head replacement, breaks, battery and tyre replacement etc. is required on the vehicle due to long term guaraging of the vehicle for using it on the road for its purposes. 

The opposite parties had contended in their version that since the vehicle is a goods vehicle  and complainant is using its for transportation of cattle and during the transportation cattle dung and urine of animal drain through the top of the radiator and the same gets clogged in the fins of the radiator thus effecting the water circulation and cooling system of the engine leading to overheating of engine and expansion of parts with failure. But this fact was not brought out in evidence by the opposite parties.  Sufficient opportunities were granted for the cross examination of the complainant.  But the complainant was absent for cross examination inspite of reopening  the evidence.  Hence the fact was not brought out by the opposite parties that the complainant was using the vehicle for cattle transportation.  

The opposite party 2 and 3  had also filed an application to initiate appropriate action against the complainant for filing false complaint against them. The complainant had stated that the Vehicle involved in the case has been entrusted to 2^nd opposite party as recommended by 3^rd opposite party.  It is also alleged that the vehicle is kept with 2^nd opposite party and still kept  idle  without doing any repair.  The expert commissioner appointed from this Forum had reported that the vehicle is in the custody of supplementary Opposite party 4.  Opposite party 4 had also stated in their version that the vehicle was entrusted to him by the complainant on 02/04/2012 and thereafter the complainant has  not  turned up.  The complainant was directed to be present for cross examination on 14/05/2014 as last attempt.  Still he did not turn up. The indifferent attitude of the complainant infers that the complaint is filed without any bonafides and the  filing of complaint is abuse of process of law.    Hence the complaint is dismissed .  The complainant shall pay            Rs.1,000/- ( Rs. One Thousand only)  to the opposite parties 2 to 4 as cost of the proceeding since the complaint is found to be false, frivolous and vexatious.

  Commissioner had also stated that from the service record maintained it is revealed that the engine was dismantled for water leakage through silencer and is having a crack of 2mm length which was the cause of water leak and the engine failure. He had also narrated that cooling system’s elements were found intact. Hence it can be  inferred that   the contention put forward by the opposite party that the urine and dung of the animals drain through the top of radiator thus affecting the water circulation and cooling system of the engine seems to be more probable.

       In view of the above discussion we direct the complainant to pay             Rs.1,000/- (Rupees One Thousand only) as costs  to each opposite party 2 to 4 as cost of proceedings.  The complaint is dismissed with costs as above.

 Pronounced in the open court on this the 19^th  day of May 2014.    

     Sd/-

  Seena H

  President   

      Sd/-

 Shyni.P.R.

  Member

      Sd/-

 Suma.K.P.

 Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Owners Manual & Service Coupon.

Ext.A2 – Original  RC Book ( Rg.No. KL -09-AB-735)

Ext.A3 – Service Cupon

Ext.A4 – Purchase order No.1010 dated 22/07/2011

Exhibits marked on the side of the opposite party

Ext.B1 – Notice issued by the opposite party 4 to the complainant.

Commission report

C1 – Appu .P.M  AMVI RTO Palakkad.

Cost

Rs.1,000/- allowed as cost to the opposite parties 2 to 4.