DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 25^th day of March 2019

Present   : Smt.Shiny.P.R. President

                 : Sri.V.P.Anantha Narayanan, Member                      Date of filing:  10/02/2017

                                                            CC/33/2017

P.Yusaf,

S/o Hamsakutty Haji,                                                              -  Complainant

Pallathu House,

Mappattukarayil Amsam,

Kulukalloor,

Ottapalam Taluk,

Palakkad.

(By Adv.S.Saviour)

Vs

1.  The Manager,

     M/s T.V.Sundaram Iyengar and sons Ltd,

     Near Yakara Bridgde,

     Kadumthuruthy, Kinassery, Palakkad – 678 701.

    (By Advs.V.Krishna Menon, B.Sulfikar Ali & Prinson Philip)

2.  The Area Manager,

    Ashok Leylanmd Limited Office,                                         -  Opposite parties

     No.23/00E, Edapally,

     Pookotumpad Road,

    Changampuzha Nagar, Ernakulam – 632 003

   (By Advs.Menon & Pai & P.Anil)

                                                                                O R D E R

By Sri.V.P.Anantha Narayanan, Member

Brief Facts of the complaint.  The complaint in brief is explained as follows.

Complainant has his own bus service which has been run for some time.  On 30.09.2011 from the 1^st opposite party complainant has purchased a Leyland bus and for taking months AMC from the date of running of the bus, the complainant paid to the opposite party company Rs.90.000/- for the first 18 months and Rs.1,04,000/- for the next 18 months totaling Rs.1,94,000/-.  The number of the bus of the complainant was KL-52-D-402.  After completing the bus body work complainant’s bus started running after three months on 30.11.2012.  Later within 3 years two times for the purpose of fitness certificate for two months, due to hartal, strike etc….many times, for six months the bus could not be run.  On 10.08.2014, 18.08.2014, 09.09.2014, 16.09.2014 and 30.09.2014 complainant went to the 1^st opposite party company and got his bus checked there.  During these times the bus is seen to have no trouble.  On 22.01.2015, contrary to expectations the crankshaft of the complainant’s above bus was broken and he could not run the bus, then complainant went to the 1^st opposite party company and informed them about the breaking of the crankshaft of the bus, but the opposite party company, according to the complainant, has not taken any steps and the broken crankshaft of the bus was not rectified.  Since the complainant has no other way he then took the bus to Bharat Engine Reboring company at Palakkad where the bus’s engine was rectified for which Rs.1,30,000/- expenditure was incurred, in addition for 10 days bus service was stopped and on that account complainant incurred a loss of Rs.1,50,000/-.  Also complainant has gone several times to the 1^st opposite party company and 2^nd opposite party company at Ernakulam to file the complaint directly and in writing.  Complainant prays for Rs.20,000/- as compensation for mental agony; totaling Rs.3,00,000/- are entitled to be received by the complainant from the opposite parties.  As deficiency in service has also occurred on the part of the opposite parties, as pleaded by the complainant.  On 18.07.2016 a lawyer notice was caused to be sent to the opposite parties intimating complainant’s inability to run the bus due to breaking of crankshaft of his bus and demanding compensation for loss incurred in repairing the bus in an outside company.  The said lawyer notice was received by the 1^st opposite party and on behalf of the 2^nd opposite party on 22.08.2016 stating false facts reply notice was sent to the complainant.  In the reply notice, according to the complainant all things mentioned were made for the purpose of this case.  Therefore opposite party is liable to pay Rs.3,00,000/- towards compensation for losses suffered by the complainant due to deficiency in service committed by the opposite parties in repairing and replacing the broken crankshaft of the complainant’s bus along with 12% interest.  Hence complainant prays to this Forum to order the opposite parties to pay Rs.3,00,000/- with 12% interest as compensation for the loss incurred by the complainant.

The complaint was admitted and notices were issued to the opposite parties to enter their appearance and file versions.  In the version filed on behalf of the 1^st opposite party, they contend that all the averments and allegations raised in the complaint are denied by them except to the extent admitted.  The opposite party does not admit that the complainant is a consumer as defined under section 2 (1) clause (d) of the Consumer Protection Act 1986.  This opposite party further contends that the complainant has no case that there has been deficiency in service on the part of this opposite party and this opposite party is an unnecessary party to the proceedings.  Hence complaint should be dismissed for misjoinjder of unnecessary party.  The vehicle purchased by the complainant had a warranty for 18 months or 150000 kilo meters whichever is earlier, which is provided by the vehicle manufacturer.  According to this opposite party, this opposite party does not admit that the vehicle purchased by the complainant had an extended warranty of 18 months on the expiry of the warranty provided by the manufacturer and the extended warranty of 18 months was also subject to the terms and conditions prescribed in the extended warranty, the extended warranty expired on 30/09/2014.  This opposite party further contends that whenever the vehicle of the complainant was brought to the workshop of this opposite party during the warranty period with any complaints, the same were duly attended by the service personal in the workshop to the satisfaction of the complainant and the complainant was only charged for consumable and wear and tear items as per the conditions of the warranty.  On each occasion the complainant/driver used to take delivery of the vehicle after getting convinced and expressing satisfaction of the work done.  This opposite party further contends that on 22.01.2015 the complainant contacted the workshop of this opposite party by telephone and complained that the crankshaft of the vehicle had broken and sought replacement of the same under the extended warranty, according to this opposite party, but since the warranty for the vehicle had long expired complainant was informed that unnecessary repairs could not be carried out under warranty and the repairs could be carried out only on payment basis.  Then the complainant had not brought his vehicle to the workshop of this opposite party.  Since this opposite party did not know about the alleged repairs carried out at Bharath Engine Reboring Company complainant’s statements in that regard are not admitted by this opposite party and the complainant is put to strict proof of the same.  The opposite party further contends that there has been no deficiency in service or unfair trade practice on the part of this opposite party and this opposite party therefore is not liable to compensate the complainant.  Hence this opposite party prays to this Hon’ble Forum to dismiss this complaint. 

As per the version filed on behalf of the 2^nd opposite party, this complaint is not maintainable either in law or on facts.  According the 2^nd opposite party, the complainant has not made out a case for any manufacturing defects or deficiency in service.  The complaint is liable to be dismissed with special compensatory cost.  This opposite party also contends that the subject vehicle was purchased for commercial purpose and hence the complaint does not come within the definition of consumer under section 2 (1) (d) of the Consumer Protection Act 1986; the complainant is collecting fees from its passengers while operating the bus and hence complainant is using the bus for commercial purpose and hence the complaint should be dismissed as not maintainable.  This opposite party also contends that nowhere in the complaint complainant has mentioned that the subject vehicle is used for earning livelihood and hence the complaint should be dismissed as the complainant has not purchased the bus for earning his livelihood.  According to this opposite party complainant purchased a bus with model name “LYNX” from the 1^st opposite party in the year 2011 and the warranty period of this vehicle was 18 months or till 150000 kilometers whichever is earlier.  The AMC availed by the complainant was for the period from 29.09.2011 to 28.09.2014 or till 250000 kilometers whichever is earlier.  This opposite party is also contends that as per article 7 (a) of the vehicle dealer agreement dated.31.12.2009 executed between the 1^st and 2^nd opposite parties, the relationship between them is on principal to principal basis and hence no liability can be cast upon the 2^nd opposite party for any action or inaction on the part of the 1^st opposite party.  This opposite party denies the averments in the complaint that the complainant started using the vehicle only on 30.11.2012 because the vehicle of the complainant was brought to the 1^st opposite party on 20.12.2011 and at that time itself the vehicle had run 8000 kilometers.  This opposite party further denies as baseless the averment that for want of fitness certificate and due to hartals the complainant could not use the vehicle for a period of six months and that the vehicle of the complainant was taken to the 1^st opposite party at Yakkara on 10.08.2011 as not correct because he purchased this vehicle only on 30.09.2011 and vehicle of the complainant was brought to the workshop of the 1^st opposite party on 18.08.2014, 09.09.2014, 16.09.2014 and 30.09.2014 for rectifying minor issues which were corrected by the 1^st opposite party. This opposite party further denies as incorrect the averment that on 22.01.2015 the crankshaft of the bus broke and the complainant came to the workshop of the 1^st opposite party to inform the same to the staff of the 1^st opposite party and also his averments as without any basis that the 1^st opposite party did not take any action or replace the crankshaft.  The averments in para 3 and 4 of the complaint are not correct and hence denied.  The averment that left with no other option the complainant was forced to take the vehicle to Bharath Engine Reboring company and repaired the engine of the bus spending Rs.1,30,000/- as not correct and hence denied; the averment that the complainant suffered loss of Rs.1,50,000/- as the bus was not used for ten days as baseless.  The averments that the complainant visited the offices of the 2^nd opposite party at Ernakulam and an amount of Rs.2,00,000/- should be paid to him that the opposite party for mental agony suffered by him are without any basis and hence denied.  No deficiency of service on the part of the 2^nd opposite party has occurred and at no time the complainant contacted the 2^nd opposite party raising any alleged issues.   The averment that the contentions in the reply notice are false is without any basis and hence denied, that complainant is entitled to Rs.3,00,000/- from this opposite party with 12% interest is not correct and hence denied.  According to the 2^nd opposite party no amount is payable by them to the complainant as there is absolutely no deficiency in service, unfair trade practice or negligence from the part of the 2^nd opposite party and the complainant is not entitled to any relief prayed for.  Hence, this opposite party prays to the Hon’ble Forum to accept their contentions and dismiss the complaint with compensatory cost. 

The complainant and the opposite parties filed affidavits.  Complainant filed an application to appoint an expert commission to examine the crankshaft and expert commission filed report.  Exts.A1 to A5 were marked from the part of the complainant except Ext.A4 which is marked in series.  Complainant filed IA/107/18 to examine the surveyor which was allowed.  The surveyor was examined as CW1.  Expert commission report was marked as Ext.C1 series.  1^st opposite party filed objection to the commission report.  The broken crankshaft of the bus of the complainant was produced by the complainant before this Forum and this was marked as MO1.  The 1^st opposite party was cross examined as DW1.   

The following issues are considered in this case.   

1. Whether the complainant can be considered a consumer under section 2 (1) (g) of the Consumer Protection Act 1986?
2. Whether there is any negligence deficiency in service and unfair trade practice on the part of opposite parties 1 &2?
3. If so, the relief and cost, entitled for by the complainant?

Issue No.1

            The complainant filed chief affidavit in which he has clearly stated that he owns a bus from which he is running  for earning his livelihood; therefore complainant can be considered as a consumer under section 2 sub section (1) (g) of the Consumer Protection Act 1986 and the issue No.1 is answered accordingly.   

Issues 2 & 3 in detail. 

            In order to prove his pleas complainant has filed five documentary evidences marked as Exts.A1 to A5.  Ext.A1 is a lawyer notice sent by the complainant’s counsel to the opposite parties stating that deficiency in service has occurred on the part of the opposite parties, to rectify the broken crankshaft of the bus of the complainant towards the loss incurred and suffered by the complainant Rs.3,00,000/- compensation is demanded which is to be given to the complainant within 7 days of the receipt of this notice.  Ext.A2 is the reply notice dated 22/08/2016 sent by the counsel on behalf of the opposite parties which states that since the warranty of the disputed bus had long expired, the complainant was not entitled to the benefits of warranty, but the opposite parties were ready to carry out the repairs on payment basis and hence they are not liable to compensate the complainant.  Ext.A3 are the bill nos.104 and 105 dated 29/01/2015 given by Bharath Engine Reboring, Palakkad to the complainant for Rs.12,500/- for repairing and rectifying the broken crankshaft of the complainant’s bus.  Ext.A4 series show purchase of spare parts as per bill numbers 201, 202, 203, 204 & 205  for Rs.80,479.505/- to remedy the broken crankshaft of the complainant’s bus.  Ext.A5 is statement of account of South Indian Bank, Perinthalmanna Branch in respect of the complainant for the period from 01/01/2010 to 13/12/2016, which branch gave loan to the complainant to purchase the bus which also shows payments made by the complainant by cheques on various dates to Ashok, Chennai. 

            The expert commissioner Mr.K.Gopinath has mentioned in his report marked as Ext.C1 series that he ‘has inspected the crankshaft on 07/12/2017 at the court premises after giving notice to both the parties’ i.e the complainant and the opposite parties.  Representatives were present.  On my inspection it was observed that the crankshaft was broken on 4^th crank pin. The damage is due to usage of poor quality materials and poor workmanship.  This expert commission report clearly shows that the damage to the crankshaft of the complainant’s bus is due to usage of poor quality materials and poor workmanship in the workshop of the 1^st opposite party in which only the disputed vehicle was given serviced before 22/01/2015 on which the crankshaft of the bus of the complainant was broken.  The 2^nd opposite party raised objection to the expert commissioner’s report.  Stating that from 01/10/2014 to 22/01/2015 (the date of breaking of the crankshaft of the complainant’s bus) that all the maintenance of the vehicle was carried out by the complainant at unauthorized service centres.  The 1^st opposite party also contends that the quality of materials used for servicing at the unauthorized service centres and quality of workmanship there would affect the vehicle component life.  But to prove these allegations the 1^st opposite party has not produced any clear and concrete evidence to the effect that complainant has serviced his vehicle between 01/10/2014 and 22/01/2015 at unauthorized service centres. 

            Opposite parties have produced 3 documentary evidences namely Exts.B1, B2 & B3 to prove their contentions.  Ext.B1 is a true copy of Ashok Leyland STAG/LYNX BS III OPERATOR MANUAL issued by the opposite party to the complainant which contains various chapters namely “attention customers, vehicle identification, technical specifications, instruments and controls, body building instructions and CMVR requirements, maintenance & lubricants etc….This also states that the period of warranty shall be 18 months from the date of sale or 150000 kilo meters whichever is earlier.  Ext.B2 is true copy of the service contract report which shows start date as 29.09.2011 and end date as 28.09.2014, start kilometer as 0 and end kilometers as 250000 kilometers under AMC package.  Ext.B3 is the true copy of the agreement dated.31/12/2009 executed between the 1^st opposite party and the 2^nd opposite party.  Further as per CW1 deposition before this Hon’ble Forum “Rm³ C³jqd³kv kÀtÆbÀ/loss assessing licensee BWv.  Crankshaft ]cntim[n¨ date 07/12/2017 BWv.  \memas¯ Crank pin BWv s]m«nbn«pÅXv.  tamiamb saäocnbÂkv sIm­mWv AXv s]m«nbXv.  tamiamb saäocnbÂkv hÀ¡vtjm¸n D]tbmKn¨Xv sIm­mWv s]m«nbXv. As per DW1 deposition is also to be noted “ 29/09/2011 apX FÃm c­p amkw IqSpt¼mgpw kÀÆokn\v h¶n«p­v.  Fsâ hmdân ]ncobUv/F.Fw.kn ]ncnbUv Ignbp¶Xphsc lÀPn¡mc³ kÀÆokn\v h¶ncp¶p"". 

We have perused chief affidavits and documentary evidences produced before this Forum by both the parties and understood that the crankshaft of the disputed bus of the complainant was broken on 22.01.2015 after the last service of this vehicle by the 1^st opposite party in their workshop on 30.09.2014.  It is also clear from DW1 deposition that since 29.09.2011 in every 2 months this vehicle was being serviced by the 1^st opposite party.  Also, from the expert commission report (Ext.C1 series) and CW1 deposition it is evident that on 22.01.2015 the fourth pin of the crankshaft of the disputed bus of the complainant was broken due to usage of poor quality materials and poor workmanship in the workshop of the 1^st opposite party.  On 30.09.2014 on which the disputed vehicle was seen serviced last before 22.01.2015 (the date on which the crankshaft of the bus was allegedly broken) the opposite parties are not able to produce any concrete evidence regarding the servicing of the vehicle between 01.10.2014 and 22.01.2015 in any other unauthorized workshop by the complainant.  We also observe that between 01.10.2014 and 22.01.2015 (the date of breaking of the crankshaft of the disputed vehicle of the complainant) that all the maintenance work of the concerned vehicle was carried out by the complainant at the unauthorized service centres and the alleged servicing of the vehicle at unauthorized service centres and poor quality of  materials and workmanship used there would have affected the vehicle component’s life, cannot be proved by the opposite parties beyond doubt by producing solid and concrete evidences.  At the same time after 22.01.2015, the date on which the disputed bus broke down due to damage in crankshaft, complainant has been able to prove that he has incurred Rs.92,979.505/- expenditure to rectify the broken crankshaft of his bus with the help of concrete documentary evidences in the form of bills.  Also upto 22.01.2015, from 01.10.2014 it is not seen that complainant has got serviced the disputed vehicle elsewhere.  Further after servicing the vehicle and repairing it, and after rectifying the damaged crankshaft of the bus incurring Rs.92,979.505/-, we have seen that no complaint in its running is seen raised by the complainant of the disputed bus.  Under these circumstances we decide to allow the complaint.

We order the 1^st & 2^nd opposite parties to be jointly and severally liable to pay to the complainant Rs.92,979.50/- (Rupees ninety two thousand nine hundred and seventy nine and fifty paisa only) towards the cost of repairing and rectifying the damaged crankshaft of the disputed bus due to its breaking on 22.01.2015; the opposite parties 1 & 2 are also ordered jointly and severally to pay to the complainant Rs.18,000/- (Rupees eighteen thousand only) towards compensation for mental agony suffered by the complainant together with cost of this proceedings of Rs.8,000/- (Rupees eight thousand only) met by the complainant. 

            This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to receive interest of 9% p.a on the total amount due to him from the date of this order till realization. 

            Pronounced in the open court on this the 25^th day of March, 2019.

                      Sd/-             

                   Shiny.P.R

                   President

                      Sd/-         

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1  -  lawyer notice sent by the complainant’s counsel to the opposite parties

Ext.A2  -  Registered reply notice dated. 22/08/2016 sent by the counsel on behalf of the opposite  parties

Ext.A3  - Original bill nos.104 and 105 dated 29/01/2015 given by Bharath Engine  

               Reboring, Palakkad to the complainant

Ext.A4 series   -  Original invoice Nos 201, 202, 203, 204 & 205 issued by Sree       Muthappan Auto Mobiles, Cherpulassery for the Vehicle Number – KL 52 D-402

Ext.A5  -   statement of account of South Indian Bank, Perinthalmanna Branch dated.14/12/2016 in respect  of the complainant for the period from 01/01/2010 to 13/12/2016

MO1    -  broken crankshaft of the complainant’s disputed bus

Exhibits marked on the side of Opposite parties

Ext.B1  -  copy of Ashok Leyland STAG/LYNX BSIII OPERATOR MANUAL  issued by the opposite party to the complainant

Ext.B2  -  true copy of service contract report issued by the opposite party to the complainant

Ext.B3  -  Photcopy of the agreement dated.29/12/2009 executed between the 1^st

               opposite party and the 2^nd opposite party

Commission Report

Ext.C1 series   -  Expert commissioners report dated.13.12.2017

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

DW1    -  Arun Kumar

Commission Witness

CW1    -  Gopinathan

Cost

            Rs.8,000/-