BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 124/2007 Filed on 17/05/2007

Dated: 31..01..2011

Complainant:

Rajee S. Kurian, P.C.W.A – A 23, Pandit Colony Road, Kowdiar – P.O., Thiruvananthapuram.

(Party in person)

Opposite parties:

1. Focuz Motors, Focuz Towers, Edappally, Cochin – 682 024, represented by its Manager.

    

2. The Manager, Focuz Motors, Simis Garden, Muttathara, Thiruvananthapruam – 8.

    

   (Opp. Parties 1 & 2 by Adv. V. Krishna Menon)

    

3. Tata Motors, represented by its Authorised Dealer, Focuz Motors, Focuz Towers, Edappally, Cochin – 24.

This O.P having been heard on 31..12..2010, the Forum on 31..01..2011 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant purchased a Mini Lorry manufactured by 3^rd opposite party from the 1^st opposite party, Focuz Motors, on 8/12/2006 for earning her livelihood, that the 1^st opposite party inter alia made the complainant to believe that the said vehicle and its parts were covered for a warranty period of one year from the date of purchase, that the warranty so assured extended up to 8^th December, 2006, that on 27/11/2006 the said vehicle showed certain starting troubles, that the vehicle was brought to the service station (2^nd opposite party) on 01/12/2006, that the 2^nd opposite party after servicing issued two tax invoices amounting to Rs.2,075/- of which Rs. 802/- was charged towards the value of two “glow plugs” due to its fault the vehicle showed starting trouble, 2^nd opposite party also charged Rs.100/- towards labour charge for its replacement, that complainant objected payment towards the replacement cost of 'glow plugs' and its labour charge on the ground that the said parts were warranted for a period of one year from the date of delivery of the said vehicle, that 2^nd opposite party said that as per their records, the warranty expired on 30/11/2006, that the 2^nd opposite party retained the vehicle in the service yard claiming the disputed amount and complainant to wait there for a long time for establishing her claim of warranty, that too in vain. Finally opposite party collected amount from the complainant under protest. Hence this complaint to direct 2^nd opposite party to refund Rs.902/- with interest thereon from 1/12/2006 along with compensation and cost.

2. Opposite parties filed version contending inter alia that complainant cannot be treated as a consumer as defined under Consumer Protection Act as the complainant had purchased the aforesaid vehicle for commercial purposes, that there is no merit in the claim of the complainant that the warranty of her vehicle was for one year from 8/12/2005 and would expire only on 8/12/2006, and that the vehicle of the complainant was billed on 30/11/2005 and the tax invoice is dated 30/11/2005. It is averred in the version that the date of sale has to be treated as 30/11/2005 and period of warranty has to be treated as one year from 30/11/2005 and the same expired on 29/11/2006, that complainant had brought her vehicle to the workshop of the opposite parties for attending certain repairs after the expiry of the warranty of the vehicle, that complainant had paid the amounts demanded of her without any protest or demur and of her own volition and taken delivery of the vehicle, that complainant is not entitled either in law or on facts to the reliefs sought for in the complaint. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether complainant is a consumer as defined in the Consumer Protection Act?

2. Whether there is deficiency in service on the part of the opposite parties?

3. Whether complainant is entitled for refund of Rs. 902/-?

4. Whether complainant is entitled to compensation and cost?

In support of the complaint, complainant's husband has filed affidavit and has marked Exts. P1 to P10. Complainant's husband has been cross examined by the opposite parties. In rebuttal, 2^nd opposite party has filed affidavit. 2^nd opposite party did not appear for cross examination nor did he furnish any documents.

4. Points (i) to (iv) : Admittedly, complainant purchased a Mini Lorry manufactured by the 3^rd opposite party from the 1^st opposite party for earning her livelihood. Opposite parties filed version contending that complainant cannot be treated as a consumer, since the complainant had purchased the said vehicle for commercial purpose. Complainant's husband has been cross examined by the opposite parties. In his cross examination by the opposite parties nothing was elicited from him to establish the contention of the opposite parties that the vehicle was purchased for commercial purpose. As per Section 2(1)(d) of the Consumer Protection Act consumer means any person,

'who buys any goods for consideration and includes any use of such goods other than the person who buys such goods for consideration when such use is made with the approval of such person but does not include a person who obtain of such goods for re-sale or for any commercial purpose:

OR

hires or avails of any services for consideration and includes any beneficiary of such services other than the person who hires or avails of the services for consideration when such services availed on with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose'.

It is to be noted that for the purpose of the said clause "commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. Complainant has specifically stated in the complaint that the said vehicle was purchased which was intended to be used privately for running a small live stock farm for running her livelihood. Apart from proof affidavit opposite party has never adduced any evidence to prove otherwise, as such we are of the view that complainant has purchased the said vehicle for earning her livelihood, and that complainant is a consumer as defined in the Consumer Protection Act. It has been the case of the complainant that she had purchased the vehicle on 8/12/2005 and the vehicle and its parts were covered under warranty for a period of one year from the date of its purchase and accordingly the warranty extended up to 8^th December, 2006. According to opposite parties there is no merit in the claim of the complainant that warranty on her vehicle was for one year from 8/12/2005 and would expire only on 8/12/2006. It has been averred in the version of the opposite parties that the vehicle of the complainant was billed on 30/11/2005 and the tax invoice is dated on 30/11/2005. Hence the date of sale has to be treated as 30/11/2005. Hence the period of warranty has to be treated as one year from 30/11/2005 to 29/11/2006. Ext. P1 is the copy of Sale Certificate dated 8/12/2005 issued by the 1^st opposite party. Ext. P2 is the copy of the Certificate of Registration wherein the date of delivery of the vehicle is on 8/12/2005, the date of registration is on 12/12/2005. Further the hypothecation agreement with ICICI Bank Ltd is with effect from 8/12/2005. Ext. P3(i) is the copy of Tax Invoice dated 01/12/2006 issued by the 2^nd opposite party. On persual of Ex.P3(i) it is seen that 2^nd opposite party has charged Rs. 802/- towards 'Glow Plug'. Ext. P3(ii) is the copy of Invoice dated 01/12/2006 for Rs.180/- wherein it is seen mentioned Rs. 100/- is charged towards labour charge. Ext. P4 is the document showing the record of repairs carried out on 17/8/2006. Ext. P5 is the copy of the certificate of insurance. As per Ext. P5 the insurance is valid from 7/12/2005 to 6/12/2006. Ext. P6 is the copy of the consent to operate issued by Kerala State Pollution Control Board. Ext. P7 is the copy of the Rent Deed. Ext. P8 is the copy of the receipt dated 26/5/2006 issued by Kerala Livestock Development Board Limited. Ext. P9 is the copy of the Warranty. As per Ext. P9 the warranty for the vehicle shall be for a period of one year from the date of sale of the vehicle. Ext. P10 is the Tax Invoice dated 30/11/2005. As per Ext. P10 the price of the vehicle is Rs. 2,30,828/-. It is printed in Ext. P10 under terms and conditions that the above prices are current ex-showroom prices, buyers will have to pay prices prevailing at the time of delivery, prices are for current specifications and are subject to change without notice, prices and additional charges as above will have to be paid completely, to conclude the sales. Evidently by Exts. P1, P2 & P3(i) & (ii) it appears that the sale took place on 8/12/2005. Further as per Ext. P5 Certificate of Insurance the vehicle was insured and the effective date of consignment of insurance is from 7/12/2005 to 6/12/2006. 2^nd opposite party has filed affiavit without any documents to substantiate the averments made in the affidavit. Opposite party has not offered himself to be cross examined by the complainant though complainant was ready for cross examination. If a party is not willing to take a witness sland and submit themselves to cross examination in Court, the only course open to the Forum would be to draw adverse inference from that. In this case, 2^nd opposite party has not appeared for cross examination by the complainant nor has he furnished any documents to corroborate his stand. In the absence of any evidence in favour of opposite parties we are of the view that the allegtion raised by the complainant is genuine and complainant had purchased the vehicle on 8/12/2005 and thereby the warranty for the vehicle for the period of one year would commence from 8/12/2005 and extend to 7/12/2006. Complainant had brought the vehicle to the 2^nd opposite party workshop on 1/12/2006 which is evident from Exts. P3(i) & P3(ii). It appears from Exts. P3(i) & P3(ii) that complainant has collected Rs. 802/- towards the cost of 'Glow Plug' and Rs. 100/- towards labour charge. The onus lies is on the part of the opposie parties to show that the warranty for the vehicle had expired on 1/12/2006. Opposite parties failed to do so. As such we are of the view that the complainant is entitled for refund of Rs. 902/-. There is a settled position that the relationship between the manufacturer and dealer is one of 'prinpal-to-principal basis' and manufacturer could not be held liable for deficiency in service on the part of the dealer. In this case 2^nd oppostie party is the Service Centre of the 1^st opposite party. 3^rd opposite party is the manufacturer. The issue herein is the collection of charges during the warranty period which has nothing to do with the 3^rd opposite party. The collection of charges during the warranty period is against the terms of warranty. After assuring warranty 2^nd opposite party has collected charges illegally from the complainant and 2^nd opposite party retained the vehicle in the service yard claiming the disputed amount and complainant had to wait there for a long time for estabalishing her claim of warranty that too in vain. The action of the 2^nd opposite party would definitely amount to deficiency in service for which complainant has to be sufficiently compensated. Complainant has succeeded in establishing her case . Deficiency in service proved.

In the result, complaint is allowed. 1^St & 2^nd opposite parties shall jointly and severally refund a sum of Rs. 902/- with 9% interest thereon from 1/12/06 till realisation to the complainant. Opposite parties 1 & 2 shall jointly and severally pay the complainant a sum of Rs. 3,000/- towards compensation and Rs. 1,000/- as cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of January, 2011.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

ad. MEMBER .

C.C. 124/2007

APPENDIX

I. Complainant's witness:

PW1 : Shaji K. Kurian

II. Complainant's documents:

P1 : Copy of Sale certificate

P2 : Copy of RC Book

P3(i) : " Tax invoice dated 01/12/2006

P3(ii) : " workshop labour invoice dated 01/12/2006

P4 : " the document showing the record of repairs carried out on 17/8/2006.

P5 : " certificate of insurance

P6 : " consent to operate issued by Kerala State Pollution Control Board.

P7 : Copy of the Rent Deed

P8 : " receipt dated 26/5/2006 issued by Kerala Livestock Development Board Ltd.

P9 : " Warranty

P10 : " the Tax Invoice dated 30/11/2005

III. Opposite parties' witness : NIL

IV. Opposite parties' documents : NIL

PRESIDENT