DATE OF FILING :11.10.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 30th day of April, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.222/2010
Between
Complainant : Kunjamma W/o Devasia,
Thachedath House,
Kochahra P.O,
Chettukuzhy,
Idukki District.
(By Adv: Jose Thomas)
And
Opposite Parties : 1. The Proprietor,
S.M.L Motors,
Amaravathy P.O,
2nd Mile, Kumily,
Idukki District.
(By Adv: Gem Korason)
2. The Proprietor,
S.M.L Motors,
Vellayamkudy P.O,
Kattappana,
Idukki District.
(By Adv: Gem Korason)
3. M/s.Piaggio(Vehicles) Pvt. Limited,
101 -B/102 Phoenix,
Bund Garden Road,
Opposite Residency Club,
Pune – 411 011.
(By Advs: K.M.Sanu & Binu Mathew)
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant purchased an Ape Cargo D600 Pickup Van manufactured on 17.12.2009 by the 3rd opposite party from the 2nd opposite party by paying an amount of Rs.1,37, 935/- for earning her livelihood. It was advertised by the 2nd and 3rd opposite parties that the vehicle will be showing good performance for years and the 2nd opposite party also promised the same. The vehicle was having one year warranty at the time of purchase. Since the complainant is a widow she was plying the vehicle by engaging a driver called Jijo. The complainant mobilized money from Mr.Rejimon working abroad through her son Lalichan with the condition that the amount will be returned by instalments. As per the instruction of the 2nd opposite party, the complainant did the services of the vehicle at the correct intervals with the Ist opposite party. During the Ist service the vehicle did not show any defect. But at the time of the second service of the vehicle, the complainant complained about clutch and starting complaints of the vehicle. The Ist opposite party after the service it was rectified. But when the vehicle covered about 8000 Kms, the starting complaint repeated. While the matter was informed to the Ist opposite party, they asked the complainant to start the vehicle by pushing and the defect will be cured at the time of service at 10000 Kms. After completing 10000 Kms, the complainant entrusted the vehicle to the Ist opposite party. After service, the Ist opposite party delivered the vehicle stating that all the defects of the vehicle were fully rectified especially the starting complaint. But after a short span of time the same complaint repeated. The matter was informed to the Ist opposite party, but he reluctant to give a reply. While the vehicle started by pushing and running some kilometers, the vehicle entirely stopped and the vehicle was tagged to the workshop of the Ist opposite party on 16.08.2010. The Ist opposite party returned the vehicle after 3 days on 20.08.2010 by receiving an amount of Rs.900/- during warranty period. The opposite party charged Rs.130/- for a diesel filter having bar code No.9451037407, which was having MRP Rs.85/- only. On the very next day of the service, again the vehicle became faulty and dead. The matter was duly intimated to the Ist opposite party. But the Ist opposite party never tried to cure the defects of the vehicle eventhough the complainant informed the matter several times. The complainant was forced to arrange another vehicle for the monthly booked trips and thus a heavy loss was caused to her. The vehicle is having manufacturing defects and the service of the Ist opposite party was not perfect. Due to the act of the opposite party, the complainant was compelled to pledge her ornaments for repaying the instalments of the vehicle loan. So this petition is filed for getting replacement of the vehicle and also for compensation.
2. In the written version filed by the Ist and 2nd opposite parties, it is stated that the 2nd opposite party never advertised or promised that the vehicle will show good performance for years. They never provided one year warranty for the vehicle. The vehicle was given totally five free services at 1000 Kms, 6000 Kms, 11000 Kms, 16000 Kms and 21000 Kms or at 45 days from each service whichever is earlier. The complainant did the first service at 750 Kms, second service at 5999 Kms, third service at 8000 Kms, fourth at 11000 Kms and fifth at 12000 Kms. In addition to the above services the complainant was given an extra free service as per the special offer of the opposite party during the said period. The said free service was done by the complainant at 13682 Kms. The defects stated by the customers will be noted in the work chart and the Ist opposite party cured all the defects stated by the complainant at the time of each service. The same was brought to the knowledge of the complainant and only after the satisfaction of the complainant the vehicle was handed over to the complainant. The opposite party is supplying Piaggio element diesel filter and the price for the same is Rs.130/-, they never charged anything more than the prescribed rate. No such allegation was raised by the complainant in the second service which was done on 20.02.2010. The entire defects stated by the complainant during the time of the service were cured by theopposite party and the same was brought to the knowledge of the complainant. The Ist and 2nd opposite parties are not responsible for the manufacturing defects if any to the vehicle. The service done by the Ist and 2nd opposite parties were good enough and upto this time no such allegation was made against the service rendered by the Ist opposite party. The vehicle was taken from the show room with full satisfaction of the complainant. The opposite parties are not liable for the rash and negligent driving and use of the said vehicle by the complainant. The very intention behind the complaint is that one Mr.Jijo who was the staff of the Ist opposite party had gone out from the show room by making a misappropriation of Rs.2.5 lakhs. The complainant's son is his close friend and under the influence of him the complainant approached this Forum without any bonafides. The complainant now with the ill intention to make unlawful gain and under the influence of Jijo had filed this complaint before this Forum without any bonafides. Hence the petition may be dismissed.
3. In the written version filed by the 3rd opposite party, it is stated that the complainant is not a 'consumer' as contemplated under the Consumer Protection Act, 1986 and the complaint is barred by limitation. It is admitted that the complainant purchased the vehicle manufactured by this opposite party and it was bought from the Ist opposite party. The vehicle is a cargo vehicle that is mainly used for commercial purposes. The complainant is a lady who is not having any driving licence to drive the vehicle. So she is not using the vehicle to earn her livelihood. The complainant and her agents/men under her are employing various people to operate the vehicle. The vehicle is using by the complainant's son Mr.Lalichan, who is a businessman running a commercial establishment in the name and style M/s.Alina Stores at Chettukuzhy. The said Lalichan is using the vehicle for carrying his men and materials in connection with his business and the vehicle is being put to misuse by carrying overload and driving the same in terrains where it is not advisable to drive. The details of the driving licence, badge etc. of Jijo, who is engaged as a driver to the said vehicle is not mentioned in the complaint. A complaint regarding the clutch was reported to the Ist opposite party during the second service of the vehicle at 5999 Kilometres. That was due to misuse and not on account of any manufacturing defect in the vehicle. The clutch will fail and develop operational problems due to overloading of the vehicle and driving the same in steep roads like that in Idukki District where the vehicle is put to use by the complainant. Moreover such parts of the vehicle are subject to wear and tear. The said problems in the vehicle were rectified during the service to the full satisfaction of the complainant/her representative and the complainant's representative was advised by the service centre not to put the vehicle to such misuse by overloading and misuse of clutch as such by improper driving practice. All problems alleged by the complainant were cured to his full satisfaction. The opposite party has not collected any amounts for services from the complainant or sold any diesel filter or collected any amount for the same from the complainant. The opposite party herein is not liable for any such alleged sale or collection of amounts over and above the MRP alleged by the Ist opposite party. The vehicle manufactured by the opposite party is provided with a warranty subject to terms and conditions. Any parts of the vehicle having manufacturing defect will be replaced under the warranty by this opposite party subject to terms and conditions of warranty. The warranty period offered by the opposite party is for 8 months and the complainant's vehicle has an extended warranty period for 12 months, that is, 20 months in all. The total kilometers run by the vehicle as on 20.08.2010 is 13500 Kms. The vehicle manufactured by the opposite party is not having any defects whatsoever. No complaint had made by the complainant with this opposite party till date. The vehicles manufactured by the opposite party are tested and its quality approved by qualified and competent persons and authorities. So the complainant is not liable to get any relief as claimed.
4. The point for consideration is whether there was any deficiency in the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
5. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P19(series) marked on the side of the complainant and the oral testimony of DWs 1 and 2 and Exts.R1 to R9 marked on the side of the opposite parties.
6. The POINT :- The complainant's son examined as PW1. The Pay-in-Slip for booking the vehicle is marked as Ext.P1. The complainant purchased the vehicle by paying an amount of Rs.1,37,935/-. Ext.P2 is the receipt issued by the 2nd opposite party for the same. The copy of the privilege warranty issued by the opposite party for the vehicle is marked as Ext.P3. Copy of the RC book of the vehicle is marked as Ext.P4. The details of the privilege warranty issued by the opposite party is marked as Ext.P5. The retail invoice of the vehicle issued by the opposite party is marked as Ext.P6. There was no defects for the vehicle upto the first service. The vehicle was promptly servicing by the complainant through the Ist opposite party as per the direction of the 2nd opposite party. Ext.P7, Ext.P8, Ext.P9, Ext.P10 and Ext.P11 are the free service coupons issued by the opposite party for the service of the vehicle at 1000 Kms, 6000 Kms, 8000 Kms, 11000 Kms and 12000 Kms. The complainant was using the vehicle by engaging a driver named one Mr.Jijo and the copy of the badge of the said Jijo is marked as Ext.P18. The vehicle was having clutch complaint and starting complaint after the first service, the matter was intimated to the opposite parties. But it was not completely cured by the opposite party. The starting complaint repeated after the service and the matter was informed to the opposite party several times. But the opposite party never cured the defects. So the complainant issued a lawyer notice to the opposite party. Ext.P19(series)are the copy of the lawyer notices, postal receipts and postal AD cards for the same. The complainant was charged an amount of Rs.900/- at the time of service of the vehicle on 16.08.2010 during the warranty period, Ext.P15 is the copy of the acknowledgement for the same. Exts.P13 and P16 are the retail invoices issued by the opposite party for the purchase of the parts of the vehicle. The driver of the vehicle deposed as PW2. PW2 was driving the complainant's vehicle for 7 months. The driving licence of PW2 is marked as Ext.P18. PW2 and the complainant approached the lawyer's office for issuing the lawyer notice to the opposite parties. Ext.P19(series) are the copy of the same. There was starting complaint and clutch complaint to the vehicle and several times PW2 approached the opposite parties for repairing the same. The complainant is earning an amount of Rs.1,300/- per day from the vehicle. Now PW2 is not driving the complainant's vehicle because it is having staring complaint. There was no complaint at the time of delivery of the vehicle from the opposite party's workshop after service. DW1, who is the workshop-in-charge of the opposite party. The service and warranty manual of the vehicle is produced and marked as Ext.R1. In its page No.17 is marked as Ext.R1(a) and page No.21 is marked as Ext.R1(b). The service record of the vehicle is marked as Ext.R2. DW1 deposed that there was clutch complaint to the vehicle that was because of the over apply of the clutch by the driver. As per Ext.R2, the clutch complaint was reported in the first service. That was cured in the 1000 Kms service itself. Again the clutch complaint was repeated twice. After that there was no clutch complaint to the vehicle. The warranty of the vehicle provided by the 3rd opposite party for 240 days was terminated on 12.08.2010. No starting complaint was reported within that date by the complainant. Free service of the vehicle as per Ext.R2 is provided by the United India Insurance Company for customer support. Additional warranty for 12 months was issued by the insurance company. The job card of the vehicle was not produced in which the complaints of the vehicle has been noted. The 3rd opposite party produced evidence as DW2. The operation and maintenance manual of the vehicle is marked as Ext.R4. The warranty manual of the vehicle is marked as Ext.R5. The standard insurance scheme of the vehicle is marked as Ext.R6. In page 25 of Ext.R4, there is a rope displayed which was used for starting the vehicle if the battery becomes discharge. Extended warranty is a tie-up between the United India Insurance Company and the dealer. It is from the information of the dealer that DW2 understood that the vehicle is plying by the complainant's son for his business purposes. It is also informed by the dealer that the vehicle is plying with overload and misusing by the complainant's son. The details of the defects of the vehicle were received from the service centre. There is no separate vehicle manufactured by the opposite party for using in high-range area and in low range area.
As per the complainant, the vehicle is having manufacturing defects and after the first service of the vehicle, it showed clutch complaint and starting complaint. Several times the complaints were cured by the opposite party, but again it remains. The complainant several times pulled the vehicle for starting and after 10000 Kms when the vehicle was repaired, the opposite party offered there will be no complaint to the vehicle. But again the complaint repeated. But the opposite party was not ready to repair the vehicle again. Even lawyer notice was issued to the opposite parties by the complainant and it was received by the opposite parties as per Ext.P19(series). PW1 is the son of the complainant. As per PW1, the complainant who is an age old lady who is living with the earnings from the vehicle and she engaged a driver, that is PW2, for plying the vehicle for earning her livelihood. As per the opposite party, the starting complaint and clutch complaint of the vehicle were repaired by them and the son of the complainant has took delivery of the vehicle after full satisfaction from the opposite party's workshop. If there was any clutch complaint and starting complaint to the vehicle, that was caused because of the misuse of the vehicle by the complainant's driver. As per Ext.R1(a), page No.17 of the warranty manual, the warranty of the vehicle is for 240 days and as per Ext.R1(b), page No.21 of the warranty manual, the opposite parties are not providing warranty for starter motor, tyres, tubes, fuel filter, fuel injector, fuel injection pump, battery etc. which are considered as proprietary items. Warranty for the proprietary items are provided by the manufacturing company and not the opposite parties. As per Ext.C1 Commission Report prepared by one Mr.Ajayaraj, Assistant Motor Vehicle Inspector, Idukki, “the vehicle is not getting started due to defective starter motor. The starting complaint of the vehicle is due to defective starter motor and it was checked after checking the starter circuit, it was found that all the parts except starter motor are in a proper working condition. When operating the starter switch, only the starter solenoid switch was working but starter motor did not turn. Then it was tried with another fully charged battery but that it was in vain. No complaint other than starter motor defect was noted. The vehicle can start only by pushing. The vehicle is not in a condition for plying now due to starting trouble”.
So it is admitted by the opposite party himself that there was starting complaint and clutch complaint to the vehicle. PW1 admitted that the clutch complaint of the vehicle was cured and it never repeated after the service of the opposite party. So the staring complaint of the vehicle is still existing and eventhough the opposite party cured it several times, it was repeating. The opposite party delivered the vehicle with full satisfaction of the complainant's driver. But after that the same starting complaint repeats. It means that the vehicle is having a major complaint for the starter motor and Ext.C1 commission report also shows the same. But there is no other manufacturing defect or any other defects noticed in the vehicle other than the starting complaint. The complainant suffered a lot because of the starting complaint of the vehicle. The complainant several times informed the matter to the opposite parties. But the opposite parties never cured the same completely. So lawyer notice was issued to the opposite parties as per Ext.P19(series). But they never responded for the same. So we think that it is a gross deficiency from the part of the opposite parties. The complainant who is an age old widow engaged a driver to ply the vehicle for her livelihood, eventhough it was also used for the business purpose of his son. So we think that the vehicle is not using for a commercial purpose. The age old widow pawned her ornaments for repaying the vehicle loan because of the non-plying of the vehicle due to starting complaint.
As per the opposite party, opposite parties 1 to 3 are not liable for the proprietary parts of the vehicle as per Ext.R1(b). The starter motor is not at all having any warranty and the proprietary items were guaranteed by the manufacturing company. But the poor old lady who is the complainant may not be known about the manufacturer of each proprietary parts of the vehicle. It is the duty of the opposite parties to help the complainant to replace the proprietary parts which are having warranty from the manufacturing company. That was not done by the opposite parties 1 to 3 even the lawyer notice was issued to them. So the opposite parties must replace the proprietary parts which are having defects from the manufacturing company to the complainant and the opposite parties can get the amount or replace the parts from them. The complainant who has suffered a lot because of the starting complaint of the vehicle. The opposite parties themselves submitted that the starting complaint was repeated to the vehicle. PW2 also deposed that he left the vehicle because of the starting problem. The vehicle is having an income of Rs.1,300/- per day as per PW2. So severe mental agony and hardships caused to her because of the same. So we fix Rs.5,000/- as compensation for mental agony and hardships caused to the complainant.
Hence the petition allowed. The opposite parties 1 to 3 are directed to replace the starter motor of the complainant's vehicle or pay Rs.8,000/- to the complainant. The opposite parties 1 to 3 are also directed to pay Rs.5,000/- as compensation and Rs.2,000/- as cost of this petition within one month 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 30th day of April, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT. SHEELA JACOB(MEMBER)
Sd/-
SMT. BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - Lalichan Devasia
PW2 - Jijo Thomas
On the side of Opposite Parties :
DW1 - Rejith.R
DW2 - V. Harishkumar
Exhibits:
On the side of Complainant:
Ext.P1 - Photocopy of Pay in Slip dated 15.12.2009 for booking the vehicle
Ext.P2 - Photocopy of Receipt dated 17.12.2009 for Rs.1,37,935/- issued by the 2nd opposite party
Ext.P3 - Photocopy of Privilege Warranty issued by the opposite party
Ext.P4 - Photocopy of RC Book of the vehicle
Ext.P5 - Photocopy of the details of the privilege warranty issued by the opposite party
Ext.P6 - Photocopy of Retail Invoice dated 17.12.2009 issued by the opposite party
Ext.P7 - Photocopy of Free Service Coupon issued by the opposite party for the service of the vehicle at 1000 Kms
Ext.P8 - Photocopy of Free Service Coupon issued by the opposite party for the service of the vehicle at 6000 Kms
Ext.P9 - Photocopy of Free Service Coupon issued by the opposite party for the service of the vehicle at 8000 Kms
Ext.P10 - Photocopy of Free Service Coupon issued by the opposite party for the service of the vehicle at 1100 Kms
Ext.P11 - Photocopy of Free Service Coupon issued by the opposite party for the service of the vehicle at 12000 Kms
Ext.P12 - Photocopy of raper of diesel filer issued by the opposite party
Ext.P13 - Photocopy of Retail Invoice for Rs.385/- issued by the opposite party
Ext.P14 - Photocopy of unprinted bill dated 18.08.2010 for Rs.70/-
Ext.P15 - Photocopy of acknowledgement issued by the opposite party for receiving Rs.900/- as service charge on 16.08.2010
Ext.P16 - Photocopy of Retail Invoice for Rs.358/- issued by the opposite party
Ext.P17 - Photocopy of finance receipt dated 6.01.2011 for Rs.3,962/- issued by the opposite party
Ext.P18 - Photocopy of Driving Licence of PW2
Ext.P19(a) - Photocopy of lawyer notice dated 17.09.2010 issued by the complainant to the Ist opposite party with Postal AD Card and postal receipt
Ext.P19(b) - Photocopy of lawyer notice dated 17.09.2010 issued by the complainant to the 2nd opposite party with Postal AD Card and postal receipt
Ext.P19(c) - Photocopy of lawyer notice dated 17.09.2010 issued by the complainant
to the 3rd opposite party with Postal AD Card and postal receipt
On the side of Opposite Parties :
Ext.R1 - Service and Warranty Manual of the vehicle
Ext.R1(a) - Page No.17 of Ext.R1
Ext.R1(b) - Page No.21 f Ext.R1
Ext.R2 - Service Record of the vehicle
Ext.R3 - Photocopy of Parts Price List as on 6.03.2010, in which the price of diesel filter included
Ext.R4 - Operation and Maintenance Manual of the vehicle
Ext.R5 - Warranty Manual of the vehicle
Ext.R6 - Standard Insurance Scheme of the vehicle
Ext.R7 - Original rapper of diesel filter with packing date July 2009
Ext.R8 - Original rapper of diesel filter with packing date October 2010
Ext.R9 - Authorisation letter dated 11.11.2010 produced by DW2 in favour of the 3rd opposite party
