BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B., President
And
Smt.C.Preethi, M.A., LL.B., Lady Member
Thursday the 28th day of June,2007
C.C.No.149/2006
Between:-
M. Sarfaraz,
S/o Late Murthuja Saheb,
R/o Atmakur,
Kurnool District. ... COMPLAINANT
Verses
1) The Managing Director,
TATA Motors Limited, 26th Floor,
Center No. 1, World Trade Center,
Cuffe Parade, Mumbai.
2) Meru Automotives (P) Ltd.,
Rep.by its Manager,
Authorised dealer of Tata Motors Ltd.,
N.H.7 Road, Santhosh Nagar (Post), Kurnool.
3) Sri Ramadas Motor Transport Limited,
Rep. by its Manager,
Authorised dealer of Tata Motors Ltd.,
D.No.5-24-15, Auto Nagar,
Visakhapatnam. … OPPOSITE PARTIES
This complaint coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate, Kurnool, for complainant, and Sri.G.Sravan Kumar, Advocate, Kurnool for opposite party 1 and Sri.M.Sanjeevan Reddy, Advocate, Kurnool for opposite party No.2 and Sri.C.Nagendranath, Advocate, Kurnool for opposite party No.3and after perusing the material papers on record, the Forum made the following.
ORDER
(Sri. Sri.K.V.H. Prasad, B.A., LL.B., President)
C.C.No. 149/2006
1. This is a complaint filed under section 2 (G) and 12 of C.P.Act, seeking an award against the Opposite Parties for payment to him Rs.2,70,000/-towards loss, damages and costs and 18 percent interest from the date of purchase of vehicle alleging deficiency of service of the opposite parties in delayed attending of the manufacturing defects of his commercial transport vehicle No.AP-W-2237 and detaining his said vehicle from 07-04-2005 to 23-04-2005 and their by casing loss of considerable income at the rate of Rs.3,000/- per day which ensured default of payment of periodical loan installment of said vehicle to its financier and their by the seizure of the said vehicle by its financier in the month of May, 2005 telling upon his livelihood.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties caused their appearance through their counsels and contested the case filling written version denying any of its liability to the complainants claim and questioning any status of consumer to the complainant as vehicle purchased was used as commercial transport vehicle and no ware it was alleged as the purchase of said vehicle was for self employment of the complainant and so the non maintainability of the complainant case under C.P Act in the Forum especially when the services and repairs vide work order No.1213 and 1814 were rendered on 19-12-2004 and 25-03-2005 free of cost as per the conditions of warranty which are creating privy in between the opposite party and complainant and so its non liability for any loss of business of the complainant which occasioned on defaultive conduct of the complainant towards its financier for Rs.1,31,233/- vide letter dated 08-06-2005 of his financier which is more than the double the amount of probable loss of income of 19days at the rate of Rs.3,000/- per day. It denies any manufacturing defect in the engine of said vehicle and the allegation of return of the vehicle without attending the defects properly and the allegation of the vehicle often running down with some trouble or other. During the checkup of the engine by opposite party No.3 after a run of 22,859 kms vide work order No.4/112 dated 07-04-2005, the necessity for repairing the defect in engine due to loosening of strainer bolt and its consequential effect of preventing circulation of oil to engine leading to tits seqzure was felt and as the complaint agreed to wait for the time from 07-04-2005 till the replacement with half block of the engine, it was duly attended free of cost on 22-04-2005 after securing the said parts worth Rs.1,34,364/- and so the delay is not attributable to the opposite party.
3) The written version of the opposite party No.2 even though admit the purchase of the vehicle by the complainant from it and warrantee period of said vehicle as 18 months or 1,50,000 kms whichever is earlier pleased the ignorance of complainant availing any finance for purchase of said vehicle and a consequences of any default of payment of installments and of the matters that were said vehicle on 07-04-2005 and of its delayed delivery on 23-04-2005and the said vehicle running with troubles since beginning with manufacturing defect and their improper attendance and the month of April as good transport season and the complainants earning Rs.3,000/- per day on said vehicle. Non reply to the notice of the complaint, it alleges, was due to letters approach to it saying that the purpose of said noticed was only to claim insurance. It lastly denies any manufacturing defects to said vehicle and of any deficiency of service and their by any of its liability to the complainants claim which is having any basis.
4) The written version of the opposite party No.2 besides denying any cause of action against it and its liability to the complainant claim firstly allege the case of the complainant is bad for non-joiner of its employer i.e., S.R.M.T Limited, Kakinada by its Chairmen, and mis-joiner of it and secondly alleged the attendance of the engine of the complainants vehicle within reasonable time gating the half engine from Pune for its replacement free of cost of Rs.1,34,365/- and so any deficiency of service on its part.
5) In substantiation of the contentions while the complainants side has taken reliance on the documentary record in EX.A1 and A2 and it6s sworn affidavit in reiteration of the complaint averments and the replies of the opposite party to the inter4rogatories exchanged, the opposite party side has taken reliance on documentary record in Ex.B1 to B4 and the sworn affidavit of opposite party No.1 to 3 in reiteration of their defense taken in their written version and the replies of complainant to the interrogatories exchanged.
6) Hence the point for consideration is whether the complainant has made out deficiency of service on the part of the opposite parties in attending the repairs or any manufacturing defects in the vehicle to hold the liability of the opposite parties to the reliefs sought in complaint.
7) The Ex.A1 is the office copy of legal notice dated 19-10-2005 caused at the instructions of the complainant to the opposite party No.1 to 3 which was duly acknowledged by them. The averments of said notice takes mention of the purchase of lorry concerned in this case by the complainant from opposite party NO.2 and its handing by the complainant and the said vehicle giving trouble often due to its manufacturing defects in engine and bringing them to the notice of the opposite party No.2 and the said vehicle giving trouble on the 04-04-2005 at Vishakapatanam and so its taking to opposite party No.3tracing for tracing the defect and its rectification and the opposite party No.3tracing the defect in engine on 07-04-2005 and of the necessity for its replacement of the defective part in engine and its ultimate replacement and delivery of the vehicle on 23-04-2005 i.e., 19 days after to trouble and a loss of income to the complainant in the month of April,2005 on account of detention of the vehicle for 19days and thereby the complainant defaulting the payment of periodical installments to its financier and so the lack of seizing the said vehicle and so claiming Rs.2,70,000/- as damages as per the details mentioned in its para No.4 and cost of Rs.2,000/-.
8) The EX.2 is an interim response of opposite party NO.1 to the Ex.A1 as awaiting for report and inform as the merits of the case and assuring the resolving of the grievances of the complainant if found genuine and justifiable. Hence there appears any bonafidies in the contentions of the complainant that the opposite party no.1 kept quite at the Ex.A1 notice.
9) The written Version of the opposite party No.2 allege his silence to the Ex.A1 notice of the complainant as the later told that it was newly caused to get insurance amount, But the sworn affidavit dated 23-02-2007 of the Opposite party No.2 does not take any such mention nor any relevant mentions appears to the said effect in the interrogatories caused to the complainant nor any cogent material is placed by the Opposite party No.2 in substation of his contentions in omitting to give replay to the Ex.A1 notice. Hence their appear any merit worthy of consideration in said contentions of opposite party No.2 for finding him any excuse for non replay to the Ex.A1 notice.
10) The written version of the opposite party No.3 conveniently avoids the complainants contentions that its notice in Ex.A1 was not responded. Hence the opposite party No.3 remains at default of non responding the Ex.A1 notice suitably.
11) The complainant alleges the lorry purchased by him from the opposite party No.2 started giving troubles frequently due to manufacturing defects in engine of said vehicle and the said lorry was taken to the opposite party No.2 on 21-12-2004, 06-01-2005 and 30-03-2005 and the said complaint was not rectified and so the said vehicle gave trouble in its running at Vishakapattanam on 04-04-2005. Except alleging as such the complainant did not filed any cogent material such as any work order of those dates, in spite of its denier by the opposite party side requiring its strict proof. While such is so the written version of the Opposite party No.1 says of the complainant brining the said vehicle to work shop of M/s.Rayala seema motors an authorized service station of Opposite party No.1 19-12-2004after a run of 9,432 kms for free service, contemplated on completion of a run of 9,000 kms by said vehicle and its attendance vide work order No.1213 dated 19-12-2004 and did not require any other repair. And thereafter the said vehicle was brought on 25-03-2005 for due servicing after 18,000 kms of run and other normal replacements such as engine oil, oil fetters, diesel fleeter, clutch adjustment5s, air fleeter cleaning and steering cutting checkup were attended vide work order No.1814 dated 25-03-2005 of cost except for consumables. The Ex.B3, B4 the work orders of supra stated dates confirms the written version of the opposite party No.1 in that aspect. Non of those Ex.B3, B4 takes mention of any complaint to engine. In the absence of ;any cogent proof from the complainant said as to the alleged dated on which the vehicle was taken to the notice of the opposite party as to any defects in said vehicle especially relating to tits engine functioning the defect found to engine of said vehicle especially relating to its engine functioning the defect found to engine of said vehicle on 07-04-2005 vide work order 4/112 in Ex.B1 cannot be attributable to any manufacturing defects especially when the said vehicle was said to have made a run over 9,000 kms and 18,000 kms by the date of work order in Ex.B3,B4 and any complaint as to engine finds any mention in said supra stated work orders and which would not have possible if the said defect is inherent on account of its defective manufacturing. In the above circumstances the defect in engine appears to have been an acquire on due to the constant use of said vehicle with any omission or commissions which ought to have been taken care of in use of said vehicle.
12) Vide the work order NO.4/112 in Ex.B1 envisages the said vehicle was referred to opposite party No.3 for its defects on 07-04-2005, the complainant except alleging it as on 04-04-2005 did not substitute the same by any cogent material.
13) When the said vehicle was purchased on 14-10-2004 with a warranty of 18 months form date of its purchase or 1,50,000kms its run which ever its already, the fact date of which is not disputed by either side, the ultimate date of 07-04-2005 on which the vehicle was referred for first time for its defect in engine is clearly remaining as one that occurred within the prescribed period of warranty to avail the benefits of the terms and conditions of the warranty governing the purchase of said vehicle. As to the actual terms and conditions of said warranty non of the parties to this case proceeding filed the warranty covering the said vehicle. The Complainant could claim the expenditure he encored in getting said vehicle of there is any deficiency performance arising out of manufacturing defect and covered by any specific term and condition of warranty to that effect. Till otherwise a warranty contemplates the replacement of the defective part covered under warranty. Here in this case the contention of the opposite party is that the defect found in engine on 07-4-2005 was rectified by replacement with half engine to said vehicle free of cost as said is covered under warranty ;and the said vehicle was delivered their after in a fit condition for its appropriate use. No ware it is contended by the complainant as to said replacement of half engine evidence by Ex.B1 and B2.
14) The claim of the complainant in para No.8 of the complaint made to the tune of Rs.2,70,000/- not only of that were said to have been incurred in building the body of the said vehicle, for tools, registration, RTO expenses and insurance but also of those he alleges to have incurred in toeing the sick vehicle to the service station of opposite party No.3 loading expenses, crane charges for unloading and loss of income of
Rs.3,000/- per day form 04-04-2005 to 23-04-205. The complainant alleging as such as to the incurred expenditure did not substantiate the same by any cogent corroborative evidence or documentary record especially when the opposite parties side cannot effectively deny for want of their knowledge to it and when the complainant is under an obligation to justify the said claim by cogent means to justify his claim at the liability of the opposite party. Apart from the above the entitleness for the said claim to the complainant remains only when the said vehicle has gone completely out of use on account of impossibility of rectification of the defects which can be attributable to its manufacturing. As no such circumstances even if made out in this case and on the other hand the vehicle being delivered in a fit condition rectifying the defect by necessary replacement free or cost and the deprival of said vehicle to the complainant if any there after being one that occasioned on account of his defaultive conduct of paying the periodical installments to his financier and not on account of any direct or indirect cause of the opposite parties deficient conduct, the complainant is not reaming entitled to the claim of Rs.2,70,000/- nor any part of it even from the opposite parties for want of any cogent materiel justifying the said claim.
15) The complainant except alleging that he was deprived of income of Rs.3,000/- per day on account of the retention of the vehicle for 19days by opposite party NO.3 for rectification of said defect, did not place any cogent material to believe that the was earning Rs.3,000/- per day on said vehicle in any earlier point of time to then. Hence the complainant fails in establishing his entitleness to said claim at the liability of the opposite party.
16) Nor the complainant has placed any cogent substantiating material to justify the claim of Rs.2,00,000/- towards loss and damages especially when the vehicle has gone out ;of his hands it to the hands of his financier an account his defaultive conduct of the opposite parties.
17) Hence in the result of the above discussions the complainant is failing in establishing any deficiency of service on the part of the opposite parties and any inherent manufacturing defects in said vehicle to his financier sub sequent to its delivery to him and so the opposite parties remain at any liability to the claim of the complainant
18) Nor the complainant has taken any plea in its pleading that the said vehicle was purchased and was used for his self employment. On the other hand he alleges the commercial purpose is involved in use of said vehicle and their by the complainant is not acquiring the status of consumer for adjudication of its grievances under the provisions of the C.P. Act by this Forum.
19) The complainant by lodging this vexatious proceeding before this forum constrained the opposite parties to face this proceeding at the cost of their precious time and money, and hence each of the opposite parties are remaining entitled Under section 26 of C.P.Act for cost of Rs.2,000/- from the complainant.
20) Consequently in the result of the above discussions, for want of merit and force in the claim of the complainant as costs within a month of the receipt of this order failing which the supra stated award amount shall be paid with interest at 9 percent by complainant to the opposite parties from the dated of default till realization of entire award amount.
Dictated to the Computer Operator, transcribed by him, corrected and pronounced by us on this the 28th day June, 2007.
LADY MEMBER PRESIDENT
Appendix of evidence
Witness examined
For Complainant :NILL For Opposite parties :NIL
Documents marked
For the Complainant:
Ex.A1 Office copy of legal Notice dated 19-10-2005 along with postal receipts and Acknowledgment.
Ex.A2 Reply letter, Dated 09-11-2005 on behalf of OP1 to EX.A1
For the opposite parties:
Ex.B1 Office copy of Work order, dated 07-04-2005.
Ex.B2 Office copy of parts record sheet, dated 07-04-2005.
Ex.B3 True copy of work order, dated 19-12-2004 pertaining to the complainant.
Ex.B4 True copy of work order, dated 25-03-2005 pertaining to the complainant.
LADY MEMBER PRESIDENT
Copy to :-
1.Sri. M. Azmathulla, Advocate,Kurnool
2. Sri. G. Sravan Kumar, Advocate, Kurnool
3.Sri M.Sanjeeva Reddy, Advocate, Kurnool
4.Sri C.Nagendranath, Advocate, Kurnool
Copy was made ready on :
Copy was dispatched on:
Copy was delivered to parties:
