KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 320/2017

JUDGMENT DATED: 30.10.2024

(Against the Order in C.C. 36/2015 of DCDRC, Alappuzha)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

M/s R.F. Motors Pvt. Ltd., Near Kerala Water Authority, Thiruvampadi P.O., Alappuzha represented by its Manager.

(By Adv. G.S. Kalkura)

                                                Vs.

RESPONDENTS:

1. Varghese Rajan P., Paratharackal House, Muhamma P.O., Alappuzha, represented by Power of Attorney holder Rajan.

2. Managing Director, Tata Motors, Jeevan Thara Building, 5 Sansadmarg, New Delhi-110 001.

(By Adv. V. Krishna Menon & Adv. S. Reghukumar for R2)

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the 1^st opposite party, the 1^st respondent is the complainant and the 2^nd respondent is the 2^nd opposite party in C.C. No. 36/2015 on the files of the District Consumer Disputes Redressal Commission, Alappuzha (for short “the District Commission”).

2. The 1^st respondent/complainant filed a complaint against the appellant and the 2^nd respondent alleging deficiency in service and unfair trade practice.  The 1^st respondent/complainant purchased a Tata Sumo Grande-Ext vehicle from the appellant on 10.07.2009.  The 1^st respondent used to take the vehicle to the appellant for periodical check-up.  On 30.07.2014 also, the 1^st respondent took the vehicle to the service center of the appellant for the check-up of the vehicle, including the timing belt.  The appellant, after check-up, handed over the vehicle to the 1^st respondent and the 1^st respondent was made to believe that the appellant had done all the check-up requested by the 1^st respondent.  However, on 18.08.2014, while the 1^st respondent was driving the vehicle towards Mallappally route, the vehicle abruptly stopped.  The vehicle was shifted to Focuz Automobiles Services Ltd., Thekkemala and it was found that the vehicle was stopped due to the breaking of the timing belt.  The 1^st respondent had to spend Rs. 40,220/- (Rupees Forty Thousand Two Hundred and Twenty only) in the service center.  In the said circumstances, the 1^st respondent alleged deficiency in service on the part of the appellant and the 2^nd respondent.  Accordingly, the 1^st respondent claimed the purchase price of the vehicle or a new vehicle.  The 1^st respondent also claimed compensation and also the amount spent by the 1^st respondent for the repairing of the vehicle. 

3.  The appellant/1^st opposite party filed version admitting the purchase of the vehicle by the 1^st respondent/complainant.  It was contended by the appellant that every equipment or machine wears down due to use and age.  The warranty period of the said vehicle was only for two years, which expired long back.  At the time of the alleged incident, the vehicle was more than five years old.  Therefore, the vehicle did not have any warranty.  It is true that the appellant conducted the check up of the brake, leaf spring bushes and timing belt of the vehicle on 30-07-2014.  At the time of check up, the timing belt was checked and found in good condition.  The vehicle was delivered on 01.08.2014 in good condition.  If the timing belt was broken, it was not due to any mechanical defect of the said timing belt.  The timing belt did not have any mechanical defect at the time of the last service by the appellant.  The timing belt might have been damaged due to other causes like water pump jamming, tension and idler wheel jamming, entry of external particles and the rough use of the vehicle through rough and bad roads.  During the period of the alleged incident, there was flood in Alappuzha-Changanasseri road and hence the said road was not suitable for vehicular traffic.  The 1^st respondent frequently drove the vehicle through the flooded road which led to the timing belt being broken.  At the time when the vehicle was brought to the service center of the appellant for general check-up, the condition of the timing belt was good enough to run and the 1^st respondent took delivery after being fully satisfied with the vehicle.  There was absolutely no deficiency in service or unfair trade practice on the part of the appellant.

4.  The 2^nd respondent, who is the manufacturer of the vehicle, filed separate version contending that there was no manufacturing defect as alleged in the complaint.  Various tests being done before delivering the vehicle are also explained in the version.

5.  The power of attorney holder of the 1^st respondent was examined as PW1 and Exhibits A1 to A8 series were marked for the 1^st respondent/complainant.  RW1 was examined for the appellant and RW2 was examined for the 2^nd respondent.  After evaluating the evidence, the District Commission found that there was deficiency in service on the part of the appellant.  However, the District Commission found that there was no deficiency in service on the part of the 2^nd respondent.  The District Commission directed the appellant to pay Rs. 30,000/- (Rupees Thirty Thousand only) as compensation and Rs. 2,000/- (Rupees Two Thousand only) as costs to the 1^st respondent.  Aggrieved by the said order, this appeal has been filed. 

6.  Heard.   Perused the records.  

7.  It is not disputed that the 1^st respondent/complainant purchased the Tata Sumo vehicle on 10.07.2009 from the appellant.  The said vehicle was manufactured by the 2^nd respondent.  The contention of the 1^st respondent/complainant is that the 1^st respondent approached the appellant on 30.07.2014 for the periodic check-up.  The 1^st respondent requested the appellant to check-up the timing belt of the vehicle as well.  Accordingly, the appellant checked up the brake, timing belt etc. and delivered the vehicle on 01.08.2014.  The further contention of the 1^st respondent is that the vehicle abruptly stopped on 18.08.2014, while the 1^st respondent was travelling towards Mallappalli, because the timing belt was broken. 

8.  The 1^st respondent alleges that the timing belt was broken due to mechanical defect.  However, the appellant and the 2^nd respondent would contend that the timing belt had no mechanical defect at all.  The appellant would further contend that on 01.08.2014, when the vehicle was delivered to the 1^st respondent after its service, the timing belt was in good condition.  However, thereafter, the 1^st respondent had driven the vehicle along the roads having water logging. 

9.  When PW1 was cross-examined, PW1 admitted that he had driven the vehicle along water-logged road on 18.08.2014. Even though it was contended that the timing belt was broken due to mechanical defect, no expert was examined to prove the same. The first respondent also did not produce the report of any expert to prove that the timing belt had any mechanical defect. In the absence of any convincing evidence, it is not possible to enter into a finding that the timing belt was broken due to any mechanical defect.  The appellant had contended that the 1^st respondent had frequently driven the vehicle along the water logged road, which led to the breaking of the timing belt.  PW1 in his cross-examination had admitted that the vehicle was driven along water-logged road. 

10.  The 1^st respondent contended that the vehicle stopped abruptly while he was driving the vehicle on 18.08.2014.  It was further contended by the 1^st respondent that the vehicle was immediately shifted to Focuz Motors Service Limited for service.  PW1 reiterated the above contentions in the proof affidavit as well. Exhibit A5 is the bill issued by Focuz Motors Service Limited, which would show that the vehicle was taken to the service center on 12.08.2014 and the vehicle was delivered from the service center, after repairing, on 18.08.2014.  If Ext. A5 is accepted as true, that would lead to the irresistible inference that the vehicle stopped abruptly immediately after the service by Focuz Motors Service Limited on 18.08.2014.  However, no explanation was given by PW1 in this regard.  There is no contention that when the vehicle was checked up on 30.07.2014 in the service center of the appellant, the appellant had changed the timing belt and the said timing belt was broken during his journey on 18.08.2014.  The only contention is that even though the appellant had stated after check up that the timing belt was in good condition for running, the timing belt was broken while the 1^st respondent was driving the vehicle towards Mallappalli on 18.08.2014.  RW1 had categorically stated that when he had delivered the vehicle on 01.08.2014 to the 1^st respondent after check up, the timing belt was in good condition.  The vehicle was then more than five years old.  There could be wear and tear of the vehicle.  The timing belt was broken probably due to the driving of the vehicle along the flooded road by the 1^st respondent as contended by the appellant and sated by RW1.  RW2 also categorically stated that the timing belt had no mechanical defect.  That apart, no document is available on record to indicate that the vehicle had any mechanical defect.  Since the 1^st respondent/complainant had alleged that the timing belt had mechanical defects, it was the primary duty of the 1^st respondent to prove that the timing belt was having mechanical defect, for which the opinion of the expert was necessary.  However, in this case, no evidence is available on record to prove that the timing belt had mechanical defects.  Even the person who had issued Ext. A5 bill was also not examined.  The District Commission had rightly found that there was no deficiency in service on the part of the 2^nd respondent, which would mean that there was no mechanical defect as alleged in the complaint. No appeal has been filed against the said finding of the District Commission and hence, the said finding has been final.  In the absence of any evidence, we are not in a position to hold that the timing belt had any mechanical defect as alleged by the 1^st respondent.  In the said circumstances, we are of the view that the District Commission was not justified in holding that there was deficiency in service on the part of the appellant. Having gone through the relevant inputs, we are of the considered view that the order passed by the District Commission directing the appellant to pay compensation and costs cannot be sustained and consequently, we set aside the same. 

In the result, this appeal stands allowed, setting aside order dated 31.12.2016 passed by the District Commission as against the appellant in C.C. No. 36/2015 and the complaint as regards the appellant stands dismissed.  In the circumstances of the case, there is no order as to costs.

The statutory deposit made by the appellant shall be refunded to the appellant, on proper acknowledgment. 

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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