DATE OF FILING : 7.1.2011

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of September, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.BINDHU SOMAN MEMBER

C.C No.11/2011

Between

Complainant : Faisal Abdul Sathar,

Kalayil House,

Kummamkallu P.O.,

Thodupuzha, Idukki District.

(By Advs:Jose George & Sooraj S. Sivan)

And

Opposite Parties : 1. The Managing Director,

Tata Motors Ltd.,

26^th Floor, World Trade Centre,

Kafe Paredu, Mumbai – 400 025.

(By Advs: P.J.Anilkumar,

Prinson Philip & Sibi Thomas)

2. The Managing Director,

Popular Mega Motors (India) Ltd., (Commercial Vehicle Dealer),

Reg. Office : Kuttookkaran Central,

Mamangalam, Cochi – 25.

(By Advs: P.J.Anilkumar, U.K.Devidas,

Prinson Philip & Sibi Thomas)

3. The Managing Director,

Popular Mega Motors (India) Ltd., (Commercial Vehicle Division),

1^st Floor, Aryattuparambil Building,

Sasthri Road, Kottayam – 686 001.

(By Advs: P.J.Anilkumar, U.K.Devidas,

Prinson Philip & Sibi Thomas)

4. The Managing Director,

Popular Mega Motors (India) Ltd.,

Near Private Bus Stand, Pala Road,

Thodupuzha, Idukki District.

(By Advs: P.J.Anilkumar, U.K.Devidas,

Prinson Philip & Sibi Thomas)

5. Tata Motors Finance Ltd.,

Geetha Trading Centre, Nagampadom, Kottayam.

(By Advs: K.M. Sanu & P. Fazil)

(cont.....2)

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O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant is a student of Hub trans Square logistic Management with IATA FIATA at S.C.M. College. His father expired on 26.11.2002. So in order to find the daily bread of his family, he purchased a Winger vehicle from Tata Motors Ltd., for plying the vehicle as taxi purpose by availing loan of Rs.5,50,000/-. The vehicle was booked at the 3^rd opposite party’s office on 16.9.2009 by paying an amount of Rs.5,000/- as advance and another payment of Rs.15,000/- was done on 30.9.2009 and finally the vehicle was purchased on 17.10.2009 by paying an amount of Rs.1,18,500/-. The balance amount was availed as loan from the Tata Motor Finance, the 5^th opposite party and the vehicle was registered as KL-5AA-3202 with taxi permit. The vehicle was plying with a driver named Niyas who is also a relative of the complainant. All the services of the vehicle were promptly done at the opposite party’s office at Kottayam. On 24.3.2010, while the vehicle was plying as taxi from Kottayam railway station to Thodupuzha, the engine of the vehicle became defective and became switch off when the vehicle reached at Karimkunnam near Thodupuzha. The power steering and electronic break system of the vehicle also suddenly became non-working and the control of the vehicle was also lost. Only because of the bold mind and experience of the driver, the vehicle escaped from a heavy accident such as a miracle. The complainant compelled to pay Rs.3,000/- to the passengers because of the inconvenience caused to them. The 4^th opposite party inspected the vehicle on the same day itself and it was found out that the oil was passed into the turbo intercooler of the vehicle because of the defect of the engine. So that the engine became switch off. Certain parts of the vehicle were also changed by the 4^th opposite party. The opposite party charged Rs.979/- from the complainant for the repair which was also against the warranty conditions mentioned in the receipt given by the manufacturer at the time of purchase. Again the same complaint has been repeated while the vehicle was plying from Kottayam to Thommankuthu near Thodupuzha and the engine became switch off and so that the complainant paid Rs.5,000/- as compensation to the passengers. The vehicle was repaired by the opposite party’s service centre on 30.4.2010 and certain parts were also changed. But the opposite party charged Rs.4,030/- which is against the warranty conditions of the manufacturer. The same complaint was continuously shown again and water was leaking from the AC vents of the vehicle. The driving shaft, suspension and clutch disc were also became trouble, so that the vehicle was entrusted to the 4^th opposite party for repair and major parts of the vehicle were changed. But the opposite party charged Rs.6,068/- from the complainant which is also against the warranty conditions. After 13 days of the same, on 30.9.2010, the vehicle became defective due to engine complaint while the vehicle was hired by certain passengers, so the

(cont.....3)

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complainant again paid Rs.3,000/- as compensation. So the complainant was not able to ply the vehicle for taxi purpose and the complainant initiated legal action against the opposite party. Knowing the same, the 4^th opposite party approached the complainant and assured that the engine of the vehicle would be repaired completely within the warranty period, but the opposite party charged Rs.4,113/- from the complainant after the repair. The vehicle was delivered to the complainant stating that the engine has completely repaired, but after one month, on 2.11.2010, while the vehicle was driving to Kanyakumari with passengers, the same mechanical complaint repeated. But the authorised service centre was not available and a local mechanic repaired the same. The complainant was not able to get the bill of the repair, but he paid Rs.2,500/- on that day. After 2 days, the vehicle was shown to the 4^th opposite party on 4.11.2010 and certain parts were changed by them. The complainant purchased the vehicle by paying an amount of Rs.1,38,387/- and availed a loan of Rs.5,50,000/-, but he was not able to use the vehicle for taxi purpose because of the continuous mechanical trouble of the vehicle. So the vehicle loan became due for 5 months and the bank initiated recovery proceedings against the complainant. Several times the engine of the vehicle was separated from body of the vehicle and so that the bolt of the engine cannot be refitted again and it would be fitted after welding the same to the body of the vehicle. So the complaint is filed for getting the cost of the vehicle as Rs.6,88,307/- with 18% interest and also a compensation of Rs.1,13,740/- from the opposite party.

2. As per the written version of the 1^st opposite party, the vehicle was purchased by the complainant after being satisfied with the condition of the lorry and its performance and after carrying out of pre-delivery inspection of the vehicle. Whenever the vehicle reports to a workshop for scheduled service or for any repairs, the standard checks are carrying out mandatorily and nothing writes at the backside of the job card. The vehicle was attended by the opposite party’s dealer/service points fully comply with the warranties, assurances and specifications provided for it by the manufacturer regarding quality and performance of the vehicle. The Automobile Research Association of India, Pune, the only approved research institution for the automobiles issues certificates to all vehicles manufactured in India, after thorough tests and reliability for commercial production. If the complaint alleges a defect in goods, it cannot be determined without proper analysis or test of the goods, this Forum shall after obtaining a sample of the goods, send it to appropriate laboratory with a direction that such laboratory make an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect. Section 13(1) ( c) of the Consumer Protection Act, 1986 says the same. As per the decision of the Hon’ble Supreme Court held in case JT 2006 (4) SC 113, “the manufacturer cannot be ordered to replace the Car/Vehicle or refund its price merely because some defect appears which can be rectified or defective part can be

(cont.....4)

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replaced under warranty.” So the complainant seeking refund of the price of the vehicle and compensation is contrary to law and is untenable. On examining the vehicle by their service personnel, it was noticed by them that the lower ball joint assembly had to be replaced and hence the same had been replaced under warranty while the vehicle was entrusted to the opposite party on 23.2.2010. But the vehicle was entrusted for the repair for the complaint of front tyre wear. However as the choking of the air filter was a normal maintenance procedure and since it is not a manufacturing fault the replacement of the air filter could not be done under warranty and the complainant had been charged for the same. Neither the engine complaint has been reported by the complainant on 23.2.2010 nor had the service personnel of the opposite party noticed any complaint with the engine of the vehicle of the complainant as alleged. The breaking system in the vehicle of the complainant is not electronic and hence would not stop functioning even when the engine is off. The complainant took delivery of the vehicle expressing satisfaction over the work done and paid the amount towards repair charges without any demur. The vehicle was subsequently entrusted to the workshop of the 2^{nd t} to 4^th opposite parties on 30.4.2010 for carrying out the 2^nd free service at 20,000 Kms. While carrying out the scheduled periodic service, the oil, oil filter etc., are replaced and are treated as consumables and are chargeable. On 17.9.2010, the vehicle was entrusted for the free service at 30,000 Kms after the vehicle covered 31201 Kms. The complainant had been charged only for the oil, filters and wear and tear items like break liners that were replaced as per the scheduled maintenance procedure. No complaint with respect to the A/C, drive shaft and clutch disc were reported by the complainant nor had the service personnel of the opposite party noticed any complaint with respect to theses items as alleged. The vehicle was delivered to the complainant with full satisfaction and paid the charges without any demur. On 30.9.2010, the vehicle was entrusted to the workshop of the 2^{nd t} to 4^th opposite parties because of the complaint of the excess oil consumption. Necessary repairs were carried out by the 2^nd to 4^th opposite parties under terms of warranty conditions and the complainant had been charged only for consumables and wear and tear items. The vehicle was delivered to the complainant with full satisfaction and the complainant paid the amount without any demur. The opposite parties not aware of the defect of the vehicle repeated on 2.11.2010. The vehicle was again entrusted to the workshop of the 2^nd to 4^th opposite parties on 4.11.2010 after covering about 33,357 Kms for a routine check up. No major complaint were reported and the warranty of the vehicle was also expired on 17.10.2009. No manufacturing defect has been noticed to the vehicle, no major complaints were reported by the complainant or by the service personnel of the opposite party. The repairs that were carried out by the 2^nd to 4^th opposite parties were either regular scheduled maintenance services at every 10,000 Kms as recommended. Minor repairs were attended under warranty and the complainant charged only for consumables and wear and tear items. So there is no manufacturing defect to the vehicle and the petition is not at all maintainable.

(cont.....5)

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3. As per the written version filed by the 2^nd to 4^th opposite parties, it is admitted that on 23.2.2010, the vehicle of the complainant was brought to the workshop of the opposite parties with a complaint of front tyre wear. On examining the vehicle, the service personnel noticed that the lower ball joint assembly had to be replaced and hence the same had been replaced under warranty. Further the air filter which choke had also been replaced. However as the choking of the air filter is due to dust entry and to be replaced when the indicator shows warning signal, this is a part of normal maintenance procedure and so the replacement of the air filter could not be done under warranty. So it was charged for the same. No engine complaint has been reported on 23.2.2010 nor had the service personnel of the opposite parties noticed any complaint with the engine of the vehicle of the complainant as alleged. The break function with a little more effort even if engine is switched off. The vehicle was delivered to the complainant with full satisfaction of the complainant. Subsequently the vehicle was brought to the workshop of the opposite parties for carrying the 2^nd free service at 20,000 Kms, on 30.4.2010. The scheduled periodic service of the oil, oil filters etc., were replaced and are treated as consumables and charged. During the 2^nd service to arrest oil leakage, the opposite parties had replaced intercooler and oil separator under warranty. On 17.9.2010, for carrying out the 3^rd free service at 30,000 Kms, the vehicle was brought to the opposite parties’ workshop while it covered 31201 Kms. The complainant was charged only for oil filters and wear and tear items like break liners were replaced as per the scheduled maintenance procedure. No complaint has been made in respect of A/C, drive shaft and clutch disc, by the complainant and the service personnel of the opposite party never noticed any complaint in respect of the same. The opposite party delivered it to the complainant with full satisfaction of the complainant and the complainant paid the amount without any demur. On 30.9.2010, again the vehicle was brought to the opposite parties’ workshop with the complaint of excess oil consumption. The opposite party personnel carried out the necessary repairs as per the terms of warranty and the complainant had been charged only for consumables and wear and tear items. Eventhough the vehicle received with full satisfaction and after service, the opposite party charged only for consumables and wear and tear items and the clutch wear is normal due to usage and replacements due to wear are not covered under warranty. Again the complainant paid the amount without any dispute. The accident happened on the vehicle on 2.11.2010 is not at all aware by the opposite party. The vehicle was brought to the opposite parties’ workshop on 4.11.2010 while the vehicle covered 33,357 Kms, for a routine check up. No major complaints noticed in the vehicle. Whatever complaints mentioned by the complainant were rectified under warranty as per the guidelines issued by the manufacturer. No manufacturing defect has been noticed to the vehicle. It is pertinent to state that the cheque No.363608 dated 12.11.2010 for Rs.13,238/- of SBI Thirunakkara, Kottayam issued by the complainant for the bills 2821, 2838 and 2396 issued by the opposite parties were bounced.

(cont.....6)

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The said bills were subsequently settled by the complainant after issuing a notice to him by the opposite parties demanding the payment. Further that the complainant had also purchased a second hand vehicle of the same model bearing register No.KL-29A-8712 which proves that he is satisfied with the performance of the first vehicle. This vehicle was brought to the workshop of the opposite parties and had been serviced as per invoice No.2821 dated 3.11.2010. The complainant had made payment by cheque which bounced. So the complainant is not at all entitled for any relief as sought.

4. As per the written version filed by the 5^th opposite party, the complainant is not a ’consumer’ within the meaning of the term ’Consumer’ as defined under Section 2(1) (d) of the Consumer Protection Act, 1986 as he has purchased the said vehicle for business purpose and had admitted in the complaint itself that the said vehicle is being operated as rent vehicle. Further the complainant has not produced any record to show that the vehicle was being used for his livelihood. The complainant has been a chronic defaulter of the instalments. The complainant defaulted in repayments within the prescribed time of the instalments Nos. 8,11 and 16 and the payment of the 4^th instalment was also late. The complainant made part payments for the instalments Nos.9, 13, 14, 15 and 17. So the overdue charges along with the remaining balance towards the instalments has been charged against the complainant and he violated the terms and conditions of the agreement. So he is not entitled to complaint against the deficiency in service of the opposite party. The cheque leaves issued by the complainant has been regularly dishonoured due to insufficient funds maintained in the bank account of the complainant. A total number of 10 cheque leaves bearing Nos. 306070, 306072 to 306077, 306079 to 306081 have been dishonoured by the bank due to insufficient funds. Due to dishonour of the cheque leaves, the opposite party contributed to the bank charges of Rs.400/- per dishonour total of Rs.4,000/- as agreed by the complainant under annexure 1 of the agreement, levied by the banker and paid by this opposite party. Because of the non-payment of the loan amount, the opposite party sent its officers/agents to the residence of the complainant for collection of the defaulted instalments and the opposite party can collect agency charges of Rs.3,150/- and Rs.650/-. Apart from the above, the opposite party also incurred legal expenses of Rs.2,100/- and it is also agreed by the complainant as per the clause 9(a) of the agreement and clause 8 of the annexure 1 of the agreement. The opposite party incurred an amount of Rs.13,400/- towards the expenses such as document charges, bank charges, legal expenses, stamp recovery, insurance provision etc.. The complainant as a borrower and Mr.Fazeela A. Sathar as guarantor entered into a loan cum hypothecation cum guarantee agreement bearing No.5000446121 dated 17.10.2009 for availing a financial assistance of Rs.5,53,500/- for the purchase of the vehicle. The repayments was in periodical instalments of Rs.16,907/- for the 1^st instalment and other 47 instalments of Rs.16,250/- each from 15.11.2009 to

(cont.....7)

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15.10.2013. The complainant also agreed to pay financial charges of Rs.2,27,157/-. As per the contract value of the said loan, the complainant was liable to pay Rs.7,80,657/- to the opposite party. The complainant is a chronic defaulter from the 6^th instalment itself. On 26.4.2011, the overdue instalment is about Rs.83,725/-. So the complaint is to counter blast the claim of the opposite party to pay an amount of Rs.94,461.25/- to the opposite party with outstanding due of the complainant in loan account and the complainant is not at all entitled to get any relief sought.

5. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

6. The evidence consists of oral testimony of PWs 1 and 2 and Exts. P1 to P10 marked on the side of the complainant and oral testimony of DW1 and Exts. R1 to R10 marked on the side of the opposite parties.

7. The POINT :- The complainant produced evidence as PW1. PW1 deposed that he purchased the vehicle for his livelihood when his father expired on 26.10.2002, while he was a student of SCM College. He booked the vehicle by paying an amount of Rs.5,000/- to the 3^rd opposite party and an amount of Rs.15,000/- was paid on 30.9.2009 and an amount of Rs.1,18,500/- paid on 17.10.2009 and purchased the vehicle. Ext.P1(series) are the receipts issued by the opposite party for the same. After that Rs.5,50,000/- was availed as loan from the opposite party and the vehicle was registered as KL-5AA-3202 in taxi permit and Ext.P2 is the copy of the RC Book of the vehicle. Ext.P3 is the permit copy of the vehicle. While the vehicle was driving by one Niyas, on 24.3.2010, with passengers from Kottayam Railway Station to Thodupuzha, while it reached at Karimkunnam, the engine became switch off and the power steering and electronic break were also became not working. So the control of the vehicle was lost. Only because of the bold act of the driver, a narrow escape happened from a major accident. He paid Rs.3,000/- to the passengers for the inconvenience caused. The vehicle was entrusted to the 4^th opposite party and after the inspection of the mechanics of the opposite party, it is revealed that the defect was caused because of oil entered in the turbo intercooler of the vehicle, so that the engine became switch off. So the opposite party serviced the vehicle and changed certain parts such as assembly lower ball joint, gasket cover, assembly element air cleaner etc., Ext.P4 is the tax invoice issued by the opposite party for the same and the complainant charged Rs.979/- for the same. Within one month of the same, again the vehicle became mechanical trouble to the engine. While the vehicle was plying from Kottayam to Thommankuthu, near Thodupuzha, the engine became switch off and not started again. So the complainant was constrained to pay Rs.5,000/- to the passengers of the vehicle as

(cont.....8)

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compensation due to the inconvenience caused to them. On 30.4.2010, again the vehicle was entrusted to the 4^th opposite party for repair and certain parts of the vehicle were changed. Ext.P5 is the bill issued by the opposite party for the repair of the vehicle for an amount of Rs.4,030/- and it was paid by the complainant. Again the vehicle became mechanical trouble, water was leaking from the A/C vents of the vehicle and driving shaft, suspension, clutch disc complaints were also showed defects. So the vehicle was entrusted to the workshop of the opposite party and certain parts of the vehicle were replaced by the opposite party and they have charged an amount of Rs.6,068/- from the complainant against the warranty conditions and the bill is marked as Ext.P6. After 13 months of the same, again on 30.9.2010, the vehicle became engine complaint while it was plying with passengers. The vehicle became switch off and the complainant had paid Rs.3,000/- to the passengers of the vehicle for compensation. So the complainant was not able to ply the vehicle for taxi purpose. Knowing that the complainant was starting legal action against the opposite party, the opposite party approached the complainant and assured to repair the engine completely in the warranty conditions and it was repaired. But they have charged an amount of Rs.4,113/- from the complainant for that service. Ext.P7 is the bill issued by the opposite party for the same. Eventhough the opposite party assured that the engine of the vehicle were completely repaired, but on 2.11.2010, again the vehicle became engine complaint and it was repaired by a local mechanic because there was not an authorised mechanic was available. After 2 days the complainant approached the opposite party workshop at Thodupuzha on 4.11.2010 and replaced some parts of the vehicle and Ext.P8 is the copy of the bill for the same. So the vehicle was continuously defective due to manufacturing defect. Ext.P10 is the owners manual and service book of the vehicle.

PW2 is the driver of the vehicle who is having driving licence which is marked as Ext.P9. He is the driver of the vehicle for the last 1½ years. For the first 5 months, there is no complaint to the vehicle and after 5 months the complaint has been started. Same complaint has been repeated after 3 months, to the vehicle. At the time of 2^nd complaint the service person of the opposite party has taken the vehicle for repair. After two months, same complaint repeated while the vehicle was plying to Koothattukulam. The main complaint was the engine became switched off at the time of running and it caused to compensate the passengers.

The 2^nd opposite party filed affidavit. Ext.R1 is the tax invoice of the vehicle dated 24.3.2010 and the job card of the vehicle dated 24.3.2010 is marked as Ext.R2 in which the complaint is written as front LHS uneven tyre wear checking and air filter and lower arm ball end were changed. The job card issued on the date of 30.4.2010 is marked as Ext.R4 in which the customer complaint of the vehicle is miscellaneous and oil leak and it was entrusted for 2^nd free service, inter cooler leak

(cont.....9)

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checking, mudflap fitting etc.. Action taken are remove and install intercooler and the 2^nd free service was done. Another job card dated 17.9.2010, in which the customer complaint is the door lock repairing and its 3^rd free service is marked as Ext.R6 and the tax invoice dated 30.9.2010 produced and marked as Ext.R7 which is for an amount of Rs.3,948/-. Another job card dated 30.9.2010 in which the complaint is engine oil consumption, oil leaking and the action taken is engine dismantled, assembled engine, and assemble of cylinder head removed, engine block meshing and head pressure testing. Copy of the job card is marked as Ext.R8. Job card dated 4.11.2010 also produced in which the customer complaint is engine check, up fan belt sound and checked engine work follow up, fan belt tightening etc., and is marked as Ext.R10. On cross examination of the learned counsel for the complainant, the opposite party deposed that the warranty period of the vehicle is 1.5 lakhs Kms or 1½ years. The job cards are writing by the service advisor and it is writing while the customer comes with the vehicle. The signature put in Exts. R6, R8 and R10 are to be verified. The intercooler of the vehicle was replaced due to leak in the intercooler and it was changed because the complaint in the unit and it was not in the quality and there was leak, diesel leak was cleared and charged for Rs.4,030/-. Again on 17.9.2010 it was entrusted to the opposite party for service and charged Rs.6,068/- and it was paid by the complainant. After 13 days on 30.9.2010 the vehicle was entrusted to the workshop of the opposite party and at that time the engine head changed, engine rings were changed and radiator was refitted. Piston, rings and head are the main parts of the engine. All the parts were not changed on that day. The engine rings were changed so that the labour charge was paid. 35 parts were changed and Rs.4,113/- was charged from the complainant. On 17.9.2010, 12 parts were changed and Rs.6,010/- was charged. On 4.11.2010 fan was changed, spring washer was changed and it is excluded from the extended warranty years as it is related to the insurance of the vehicle. No evidence has been produced by the opposite party to show that the complainant has purchased another vehicle in the same category or the bill for the repair of the 2^nd vehicle which was purchased by the complainant.

As per the complainant, he has purchased the vehicle Tata Winger and it is using exclusively for the purpose of taxi for earning daily bread of him and his family, because his father expired and he was a college student at SCM College, Ernakulam. He paid an amount of Rs.1,38,500/- to the opposite party and an amount of Rs.5,50,000/- was availed from the 5^th opposite party for the purchase of the vehicle. Ext.P1(series) also shows the same. The vehicle was duly registered as taxi and the taxi permit also produced. The 1^st contention of the opposite party is that the

vehicle is plying for commercial purpose, so that he had authorised a driver for the same and so the petition will not come under the Section 2(1)(d) of the Consumer Protection Act, 1986.

(cont.....10)

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The opposite party produced the decision of the Hon’ble Supreme Court in the case of Laxmi Engineering Works Vs P.S.G Industrial Institute (1995 II CP J I (SC)), was held that, if any person has obtained goods for commercial purpose with a view to using for self employment, such person is excluded from the purview of the Consumer Protection Act.

But we think that the complainant who is a student and he is studying at a college at Ernakulam for a management course and the opposite party never challenged the same when the complainant was examined as PW1. The father of PW1 expired on 26.11.2002 and in order to bring the daily bread of his family including his mother and sister, he purchased a vehicle and it is registered as taxi with an assistant who is a driver. The opposite party never challenged these matters while the complainant was cross examined. No evidence has been produced by the opposite party to show that the vehicle has been plying as commercial purpose so that the complainant is having more than one vehicle and he is doing a commercial business with these taxies. Ext.P3 taxi permit also substantiate the evidence of the complainant. So we think that the decision of the Hon’ble Supreme Court, produced by the learned counsel for the opposite party is not at all substantiate this case. Hence the contention of the opposite party that the complainant is not a consumer as per Section 2(1)(d) of the Consumer Protection Act and the vehicle is running for commercial purpose is not at all sustainable.

The 2^nd contention of the complainant is that after 6 months of purchase of the vehicle from the opposite party, the vehicle was became defective due to mechanical trouble of its engine and the engine stopped while the vehicle was plying from Kottayam to Thodupuzha. The power steering of the vehicle and break system of the vehicle was also became functionless and the control of the vehicle also lost and only because of the bold behaviour of the experienced driver, a narrow escape happened to the vehicle and the passengers as a miracle. Eventhough the vehicle was repaired by the opposite party, the same complaint was repeated continuously and the engine of the vehicle became switch off while it was running. These matters was also not at all challenged by the opposite party while the learned counsel for the opposite party cross examined the PW1. It is admitted by the opposite party that the vehicle was entrusted for repair at the 2^nd to 4^th opposite parties an it was duly repaired, but there was no engine complaint to the vehicle. But as per the complainant, several times when the complaint of the vehicle was attended by the opposite party and for the same they have charged hike amounts from the complainant and Exts. P4, P5, P6 and P7 also shows the same. And it is against the conditions of the warranty of the vehicle and so it is a deficiency from the part of the opposite party. So the continuous trouble of the vehicle leads to the manufacturing defect of the vehicle and the engine of the vehicle also completely repaired by the opposite party on 30.9.2010,

(cont...11)

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Ext.P7 invoice also shows the same. So the vehicle is having manufacturing defect and the complainant is liable to get the cost of the vehicle with compensation. Even after the engine was repaired, the vehicle showed defect again.

As per the opposite party, the complaint shown to the vehicle were minor which comes in the normal running of the vehicle, and the opposite party duly repaired all the same, job cards produced by the opposite party also shows the same. The complainant never mentioned about the engine complaint of the vehicle anywhere. These normal complaints are mentioned by the complainant only at the time of periodical service and free service at the opposite party workshop. And all the services were duly and promptly done by the opposite party and the charges were disbursed by the complainant with full satisfaction and without any demur, because the parts changed by the opposite party and payment done by the complainant are for the normal consumables and wear and tear items including the oil filter, break liner etc..

On perusing the Ext.P4, the particulars changed are assembly lower ball joint, assemble element air cleaner, gasket cap, cover etc., lower arm ball end changing, air filter changing etc.. The complainant has been charged for Rs.979/- and we think that they are not usual wear and tear parts of the vehicle and in Ext.P6, the complainant was charged for Rs.6,068/- for the front break caliper was changed, fuel filter element, assembly oil filter, etc., were changed. But on perusing Ext.P6, we think that they are normal charges for a periodical service of a vehicle and the break caliper and oil filter of the vehicle are not come under the warranty conditions of the vehicle and they are not a major complaint of the vehicle. In Ext.P5, oil filter, fuel filter element, intercooler, assembly oil separator and oil were changed and an amount of Rs.4,030/- has been charged from the complainant. But in this also the major charges were taken for changing the engine oil and parts concerning to that and we think that it is a normal periodical service done by the opposite party for the vehicle and which are also not coming under the warranty of the vehicle. But in Ext.P7 invoice dated 30.9.2010, the engine of the vehicle has been repaired and the engine rings were changed, inlet valve changed, piston rings changed, cylinder liner changed, exhaust valve changed, overhaul gasket changed, head gasket changed, clutch cable assembly changed, front oil seal of the crankshaft, oil seal camshaft changed, oil sump gasket changed, clutch disc assembly changed, drive shaft assembly changed, head gasket cylinder changed, timing belt changed, cylinder head assembly changed etc.. So it means that major repair of the engine has been done by the opposite party. DW1 also admitted that the engine rings of the vehicle has been changed. The piston, rings and head are the main parts of the vehicle and the engine was refitted and the labour charge was also levied, head of the engine was also changed, so it means that major complaint of the engine was repaired by the opposite party. That means that the vehicle was having major engine complaint on 30.9.2010.

(cont...12)

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The vehicle was purchased only on 17.10.2009. So the main parts of the engine of the vehicle were replaced within one year of the purchase of the vehicle. That is also admitted by the opposite party. So we think that the complainant paid a huge amount for the purchase of the new vehicle and within one year of the purchase of the vehicle, the engine of the vehicle has been repaired by the opposite party but only Rs.4,113/- was charged for the same. That means that the engine was repaired within the warranty period itself. It may be because of the major complaint of the vehicle. So we think that there is nothing to disbelieve the version of the complainant that the vehicle is having mechanical trouble within 6 months of the purchase of the vehicle. And because of the same the engine was repaired. But the opposite party duly repaired the vehicle, including the engine complaint at the time when it was entrusted to the opposite party and not at all charged for the same.

Eventhough the complainant never produced any expert opinion or expert commission report stating that the vehicle is having manufacturing defect or mechanical defect which is due to the engine complaint of the vehicle, but it is admitted by the opposite party as per the Ext.P7 itself. As per the deposition of the DW1, the vehicle is having engine complaint and it was repaired by the opposite party. The major parts of the engine were replaced such as piston rings and head. So we think that by paying a huge amount by the complainant, the vehicle was purchased with a minimum guarantee that the vehicle can be plied for taxi purpose for his livelihood and for his family. But the complainant was not able to ply the vehicle because the vehicle showed major complaint while it was using as taxi. So we find that it is a gross unfair trade practice and deficiency from the part of the opposite party. The complainant paid compensation to the passengers several times because of the defect of the vehicle. But no evidence has been produced by the complainant to show the same. It may be true that the complainant paid compensation to the passengers of the vehicle while the vehicle was became break down on the way. Eventhough there is no evidence produced by the complainant, Exts. P7, P4 and P5 also shows that the vehicle duly repaired at the opposite party workshop due to the mechanical trouble of the vehicle. Eventhough the vehicle was having engine complaint, it was repaired by the opposite party at their workshop with warranty because they have charged only Rs.4,113/- only. But the complainant who has purchased the vehicle for the livelihood and daily bread and due to the continuous defect of the vehicle, it made dues to the payment of the vehicle loan and made mental agony and financial loss to the complainant. There is no contention for the opposite party that these mechanical defects were caused due to the improper use of the complainant or non- maintenance of the complainant. So we fix Rs.10,000/- for the repair charges paid by the complainant for the continuous mechanical defects, Rs.10,000/- can be awarded as compensation for mental agony and sufferings caused by the complainant due to it.

(cont.....13)

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It may be true that the complainant had lost many taxi trips due to the defect of the vehicle and also compensated the passengers. So we allow Rs.10,000/- for the same. The 4^th opposite party duly serviced the vehicle at the time when the vehicle entrusted to the 4^th opposite party and there is no allegation in the part of the complainant that the 4^th opposite party never serviced the vehicle promptly. The 5^th opposite party is a financier of the vehicle and there is no relief is sought against the 5^th opposite party. So the 1^st to 3^rd opposite parties are liable to compensate the complainant for the continuous defects of the vehicle and the engine complaint of the vehicle caused within one year of the purchase of the vehicle.

Hence the petition partially allowed. The 1^st to 3^rd opposite parties are directed to pay an amount of Rs.30,000/- to the complainant for the damage sustained to the complainant’s vehicle within one year of the purchase and also for the inconvenience caused to the complainant. The 1^st to 3^rd opposite parties are also directed to pay Rs.2,000/- as cost of this petition, within 30 days of receipt of a copy of this order failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30^th day of September, 2011

Sd/-

SRI. LAIJU RAMAKRISHN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

(cont....14)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Faisal A. Sathar.

PW2 - Niyas Ahamad.

On the side of the Opposite Parties :

DW1 - Immanual Job

Exhibits :

On the side of the Complainant :

Ext.P1(series) - The receipts issued by the opposite party dated 16.9.2009, 30.9.2009

and 17.10.2009.

Ext.P2 - Copy of the RC Book of the vehicle of the complainant.

Ext.P3 - Copy of the contract carriage permit of the vehicle.

Ext.P4 - Tax invoice issued by the opposite party dated 24.3.2010.

Ext.P5 - Tax invoice issued by the opposite party dated 30.4.2010.

Ext.P6 - Tax invoice issued by the opposite party dated 17.9.2010.

Ext.P7 - Tax invoice issued by the opposite party dated 30.9.2010.

Ext.P8 - Tax invoice issued by the opposite party dated 4.11.2010.

Ext.P9 - Copy of the driving licence of the complainant.

Ext.P10 - Owner’s Manual and Service Book of the vehicle.

On the side of the Opposite Parties :

Ext.R1 - Copy of the Tax invoice dated 24.3.2010.

Ext.R2 - Copy of the job card with attended date 24.3.2010.

Ext.R3 - Copy of the tax invoice dated 30.4.2010.

Ext.R4 - Copy of the job card with attended date 28.4.2010.

Ext.R5 - Copy of the tax invoice dated 17.9.2010.

Ext.R6 - Copy of the job card with attended date 16.9.2010.

Ext.R7 - Copy of the tax invoice dated 30.9.2010.

Ext.R8 - Copy of the job card with attended date 30.9.2010.

Ext.R9 - Copy of the tax invoice dated 4.11.2010.

Ext.R10 - Copy of the job card with attended date 4.11.2010.