SMT. RAVI SUSHA: PRESIDENT

The present complaint has been filed by the complainant U/s 12 of Consumer Protection Act 1986 against opposite parties seeking to get an order directing opposite party No.1 to re-construct the container by using branded quality Aluminum sheet or to return back the amount of Rs.2 ½ lakhs rupees together with sum of Rs.1,00,000/- as damages to the complainant alleging deficiency in service and unfair trade practice on the party of OP No.1.

The facts of the case according to the complainant are that the complainant had purchased Mahindra Zoom Mini Truck having (Engine No.BTE4490072) from the OP No.1 on 20/08/2014.  Further aluminum container body was also built to the truck from the OP No.1 by spending an amount of Rs.2 ½ lakhs.  The complainant submits that since some black rust dots are seen appeared on the container aluminum sheet, the complainant produced the vehicle at the workshop of the OP No.1 during February 2015.  The OP No.1 informed to the complainant that a report to that effect will be sent to OP No.2 in this connection and informed the result at the earliest.  But there was no information from OP No.1 as assured.  The complainant submits that the defect to the container sheet is seen increased and the complainant approached the OP No.1 on 29/05/2016 and informed that matter.  The OP No.1 informed the complainant the container aluminum sheet was rusted due to the continuous usage of the vehicle in the coastal area by the complainant and as such company could not do anything in this matter and returned the complainant.  In fact, the vehicle has not been parked or used in the coastal area.  The complainant further resubmits that the defect to the container was caused, since it was made with poor quality aluminum sheet.  According to complainant OP No.1 has cheated the complainant by making the container body by using poor quality aluminum sheet.  Due to the unfair trade practice and deficiency in service on the part oി OP No.1 as mentioned above, the complainant had suffered great mental agony and monitory loss.  Hence the complaint.

  1^st OP admitting that the vehicle Mahindra Zoo Mini Truck was purchased through them by the complainant.  It is contended that after taking delivery of the vehicle on 20/08/2014 the complainant had approached this OP for carrying out the periodic service on 28/09/2014, 06/02/2015,12/06/2015and on 21/11/2015.  When the complainant or his driver had brought to the vehicle on 21/11/2015 for carrying out fourth periodic  service, it was noticed that there was certain rust formation on various parts of the cabin and under the chassis.  This OP had immediately brought to the notice of the second OP of the said aspect and sought for their approval for carrying out the necessary repairs on a goodwill basis.  Based on the approval granted by the manufacturer the service personnel in the workshop of this OP had carried out the necessary repairs on the vehicle.  It is pertinent to state here that while carrying out the necessary repairs at no point of time neither had the service personnel in the workshop noticed any corrosion on the covered body nor had the complainant made any such complaint regarding corrosion.  The complainant had thereafter once again brought the vehicle to the workshop of this OP on 18/06/216 with a complaints with respect to the brake of the vehicle. Even on the said day, the complainant had no complaints with respect to the covered body of the vehicle.  It is submitted that the vehicle of the complainant is being used for transporting goods of logistic company “GATI”.   The driver of the complainant had informed the service personnel of this OP that the operating route of the vehicle was through the highway and that the vehicle is generally parked at koilandy which is a coastal area.  He had further informed that while coming to Kannur from Calicut he generally drives the vehicle through the beach road.  The service personal had informed the driver of the complainant that owing to the presence of salt in the atmosphere it would stick to the body of the vehicle thereby causing black spots to appear on the body.  It is therefore submitted that the black spots alleged to exist in the vehicle of the complainant are only because of normal discoloration owing to the presence of salt and polluted particles in the atmosphere.  It was only after the visit of the complainant on 18/06/2016 that the complainant had of the 1^st time raised a complaint regarding black spots noticed on the covered body of the vehicle.  There has been no deficiency in service or unfair trade practice on the part of this OP nor has this OP in any manner caused any mental agony or monitory loss to the complainant.  Hence this OP is in no way liable or responsible to compensate the complainant.

2^nd OP also filed version stating that the complaint pertains to a vehicle which was admittedly purchased of commercial purpose: therefore the above complaint is not maintainable before this sec.2(1)(d)(i) of the consumer Protection Act, 1986.  It is submitted that the transactions between M/s Mahindra Trucks and Buses Ltd.  and M/s TVS Sundaram Iyyengal & Sons Ltd are on principal to principal basis.  The answering OP never had any transactions with the complainant and therefore there is no privity of contract between the complainant and the answering OP2.  It is submitted that only the chassis with cabin was manufactured by this OP and sold through the 1^st OP.  Further submitted that OP2 was not involved in the building up of aluminum container body in the truck by the OP No.1 and is not aware of its costs.  It is learnt from the 1^st OP on enquiry that the complainant reported the complaint only after his last visit with the 1^st OP ie after 18/06/2016 and denied that the OP No.1 informed  the complainant that a report will be sent to the OP No.2 and will inform the result and that there was no further information from OP No.1.  The OP No.2 is not aware of the statement regarding increasing of rusty black dots as alleged.  This OP is not aware of the transactions between the complainant and OP No.1.  Further stated it is learnt that the vehicle is running for a transport service named GATI and the vehicle is operated in the coastal area including parking  at Quilandy.  The presence of salt in the atmosphere will stick on the body while vehicle operating on coastal area and may cause corrosion on the body.  It is submitted that manufacturing of the container body is an independent transaction between the complainant and the 1^st OP.  There is no unfair trade practice or deficiency in service on the part of the OP2.  The complainant is not entitled to make any claim against the terms and conditions of warranty as specified in the Owner’s Manual (OM).  The present complaint is filed suppressing terms and conditions of warranty.  The warranty of the vehicle already expired on 20/08/2015.  Further submitted that the OP2  is not liable to pay any amount towards the cost of litigation.  But the 2^nd OP is entitled to get compensatory cost for unnecessarily dragging into litigation.

While pending of this complaint, complainant has taken steps to appoint an expert commissioner and thus Mr. Jayachandran O was appointed as expert commissioner to inspect the vehicle and to file report after noting the quality of the aluminum sheets used to construct the container of the truck, to assess the damages caused there in and to note the extent of rust of there on, to note the amount to be incurred for rectifying the mistake, and to note the actual damages caused to the complainant.  The expert commissioner inspected the vehicle in the presence of representative of OP No.1 and complainant and has filed report. Complainant as well as OP No.1 filed objection to the commission report.

At the time of evidence complainant and OP No.2 and 3 led their evidence.  Complainant has filed his proof affidavit and was examined as Pw1.  Documents Ext.A1 to A3 and Ext.C1 were marked.  On behalf of OPs 2 and 3 the sales manager Mr. N Krishnan filed his proof affidavit and marked Ext.B1to B3.  Both witnesses were subjected to cross-examination for the rival parties.

After that the counsel appearing for the complainant made oral argument and the counsel for OPs 2 and 3 filed their written argument note with judgment of Hon’ble Supreme Court.  From the side of OP No.1, neither adduced any evidence nor made argument.

            Admittedly, the complainant has purchased chassis with cabin of a Mahindra zoom Mini truck manufactured by Mahindra truck and buses Ltd (OPNo.2) from TVS, Tottada (OP No.1) for Rs.8,48,900/- on 20/08/2014.  Further  Aluminum container body was also build to the truck from the OP No.1

            Complainant’s allegation is that the some black rust dots are seen appeared on the container Aluminum sheet within 6 months of its built and the complainant entrusted the vehicle to OPNo.1 during February 2015.  But OP No.1 failed to rectify the defect and the defect to the container sheet is increased.  The complainant approached OP No.1 again on 29/05/2016, then OPNo.1 informed to him that the rust occurred to Aluminium sheet was due to continuous usage of the vehicle in the coastal area, so they could not do anything.  Complainant’s allegation is that the rust affected to the container was due to proor quality aluminium sheet used by OP No.1 for making the container body.  According to complainant the above said action of OP No.1 amounts to deficiency in service and unfair trade practice.  Complainant submitted that he had to spent Rs.2 ½ lakhs to OP No.1 for making container body of the vehicle which can be accepted.

            OP No.1 contended that during periodic services on 28/09/2014, 06/02/2015, 12/06/2015 and on 21/11/2015 complainant had not raised the complaint of affecting rust on the container body and only on 21/11/2015 the rust formation on various parts of the cabin body of vehicle.  OP No.1 contended that base on the approval from OP No.2 as manufacturer, the service personal of OP No.1 carried out the necessary repairs on the vehicle.  OP No.1 further stated that  the complainant came on 18/06/2016 with a complaint of break of the vehicle, he had not raised the complaint of rust on the container parts.  OP No.1 version is that the black spots alleged to exist in the vehicle are only because of normal discolouration owing to the presence of salt and polluted particle at the costal area.

            We have considered the respective contentions of the complainant and OPNo.1 and perused the record.  The evidence of the complainant is in the nature of evidence of expert,  Mr. Jayachandran O,  S J Auto mobile, Kannur. He has examined the defective vehicle and was found that the Aluminium material used for making the body of the vehicle is of poor quality and will not be for making container in vehicles.  The expert opinioned that Aluminium of Hindalco company is usually used for making body cover of the vehicle.  It is also stated that there were plenty black dots seen on the body cover and further opinioned that these black dots were happened due to using of low quality aluminium material for making the container cover.  Further reported that almost all parts of the sheet was affected rust and hence the said sheet cannot be used after repairing work. The expert opinioned that it is better to replace the aluminium sheet used for making container body.  The amount assessed by the expert for the present aluminium sheet with labour cost amounts to Rs.1,80,000/-.  Though OP No.2 filed objection to commission report, there is no expert opinion in rebuttal.  Here the expert commissioner has stated that after repairs, the damaged portions of the container cover in question cannot regain its original features.   Expert suggested to replace the whole container cover.  The OP has not led any expert evidence.  Hence Ext.C1 report can be taken as a cogent evidence of substantiating the allegations of the complainant.

            Here though OP 1 raised contentions that the complainant raised the allegation of black dots only at the 4^th service time of the vehicle,  OP No.1 had not submitted any material evidence.  OP No.1 could have submitted the job card of the particular vehicle for substantiating their contention.  OP No.1 not even filed any objection to the Ext.C1 report.  If contentions raised by complainant were opposed by other party, mere contentions raised in the version itself is not sufficient to establish such points.  Further the expert opinioned that the coast of material with labour charge incurred to the low quality Aluminium material used by OP No.1 amount to 1,80,000/-.  Then the actual cost of good quality aluminium material ie aluminium sheet of HIndal co company as suggested by the expert commissioner would come to     Rs.2 ½ lakhs.

            Since it is evident that the aluminium material used by OP No1of poor quality material, and that is the reason of causing black dots and rust almost all parts of the container cover, OP No.1 is liable to redress the grievance of the complainant. There is clear deficiency in service and unfair trade practice on the part of OP No.1 because though the complainant approached them for rectifying the defect at the initial stage itself, they were evaded from curing the defect of the body cover of the vehicle with false contentions.  Here OP No.1 failed to prove with expert evidence that the black dots on the body cover was caused due to the parking of the vehicle at the coastal area.

            With reagard to OP No.2 and 3 since they are the manufacturer of the cabin and chasis of the vehicle in question and the complainant purchased cabin and chasis from OP No.1 and the aluminium container body was built by OP No.1 and further there is no allegation of defect on the mechanical side of the vehicle,  OP No.2 is exempted from the liability as found in the case.  Fruther Ext. B1 shows OP No.2 and 3, sold only cabin and chasis of the vehicle to OP No.1.

            From the aforesaid facts and circumstances of this case, complaint is allowed in part.  Since this case belongs to year 2016, there is not meaning to order to replace the aluminum container over of the vehicle.  Moreover complainant had lost his faith to the work of OP No.1.  Hence OP No.1 has to repay the value of good quality aluminium container body cover which OP 1 had already received from the complainant. 

            In the result complaint is allowed in part.  Opposite party No.1 is directed to refund Rs.2 ½ lakhs to the complainant together with Rs.15,000/- as compensation within 45 days from the date of receipt of this order.  Failing which the awarded amount carries interest @9% per annum from the date of receipt of this order till realization.  Complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.

Exts.

A1-Operaters Manual

C1-Expert Commission report

B1-True copy issued by OP1 sales certificate (marked with objection)

B2-Warranty policy (marked with objection)

B-Vehicle History (marked with objection)

Pw1- Complainant

Dw1-D N Krishnan- witness of OP2&3

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar