KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 736/2018
JUDGMENT DATED: 24.01.2020
(Against the order in C.C. 168/2013 of CDRF, Kasaragod)
PRESENT :
SRI. T.S.P MOOSATH : JUDICIAL MEMBER
SRI. RANJIT. R : MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANTS:
- M/s. Tata Motors, Towers 2 A and B, 20th Floor, 84-Senapathi Bapat Marg, Jupitar Mills Compound, Eliphin Stone Road (West), Mumbai-400 013.
- K.V.R. Dream Vehicles Pvt. Ltd., Naimarmoola-Panalam, Alampady Post, Kasaragod Taluk.
(By Advs. V. Krishna Menon & S. Reghukumar)
Vs.
RESPONDENT:
Gopalakrishna Aggithaya, S/o Narayana Aggithaya, Kumaramangala House, Bela Post, Kasaragod Taluk.
(Party in person)
JUDGMENT
SRI. T.S.P. MOOSATH: JUDICIAL MEMBER
The opposite parties in C.C. No. 168/2013 of the Consumer Disputes Redressal Forum, Kasaragod, in short, the District Forum, have filed this appeal against the Order passed by the District Forum by which they were directed to replace all defective parts of the vehicle of the complainant as pointed out in Ext. C1, to pay compensation of Rs. 50,000/- and Rs. 5,000/- to the complainant.
2. The averments contained in the complaint are, in brief, as follows: The complainant has purchased a TATA SUMO GOLD bearing Registration No. KL.14 M-171 from the 2nd opposite party for his self employment purpose in June 2012. The 1st opposite party is the manufacturer of the vehicle. It is stated that right from beginning the vehicle was not free from defects. There existed a scratch on the right side. At that time the 2nd opposite party consoled that it would be cured during the first service. But it was not done. Also on the date of purchase there existed a sound in steering. Earlier the 2nd opposite party has not attended the said defects. Later the 2nd opposite party has replaced the steering rode. But after a short period the above defects developed to a further extent and the complainant could not operate the steering properly and while driving the steering was vibrating, due to which the complainant was unable to drive smoothly. At the time of service the 2nd opposite party has fixed some rubber materials in order to clear the vibration but the defects continued. Also the fuel gauge of the vehicle is not functioning properly which shows wrong readings. There is a vibration in the gear box. The 2nd opposite party did not attend the above defects and rectify the same in spite of repeated requests made by the complainant and the defects still exist. It is stated that at the time of final service on 03.05.2013 the complainant pointed out the defects to the 2nd opposite party, but no use. Later the 2nd opposite party promised the complainant that they would take the vehicle to their Kannur showroom for service at their own costs. And they asked the complainant to take the vehicle to them. And accordingly the complainant took the vehicle and produced before the 2nd opposite party on 05.06.2013. On that day the Manager of Kannur showroom was present. The vehicle was kept with the 2nd opposite party for service, but even after two days service all the defects continued as such. The complainant requested the 2nd opposite party to replace the defective parts of the vehicle, but not complied with. The opposite parties are very negligent in tendering service to the complainant. It is stated that all the above mentioned defects are come to notice during the warranty period. The above defects are caused due to manufacturing defects in the vehicle. Because of the above defects the complainant has constrained to cancel several long trips and thereby sustained huge monitory loss apart from mental agony and hard ships. There is gross negligence and deficiency of service and unfair trade practice on the part of opposite parties and they are jointly and severally liable to compensate. Hence this complaint is filed for a direction to the opposite parties to replace the defective parts of the vehicle. Also for a direction to the opposite parties to pay an amount of Rs.1,50,000/- to complainant as damages and Rs.5000/- towards the cost.
3. The 1st opposite party filed version raising the following contentions. The complaint is baseless and it is not maintainable against the 1st opposite party. The vehicle is of highest quality and the complainant purchased the same after being satisfied with the conditions of the vehicle and its performance. There is no merit in the complaint. There is no basis in the allegation of the complainant that owing to recurring complaints he had been deprived of the vehicle facility for a long period. As on 31.12.2013 the vehicle has covered 49496 Kms and this would clearly show that the complainant had been satisfactorily using the vehicle and the allegation to the contra is with the intention to mislead the Forum. The complainant is not entitled for the relief as prayed for.
4. The 2nd opposite party filed version raising the following contentions. The 2nd opposite party denies the entire allegations of the complainant. It is stated that the periodical services have been rendered to the complainant and the 2nd opposite party was attending and servicing the vehicles very diligently and periodically. There is no reason for attributing any deficiency of service. There is no reason for any mental agony, worries, or monitory loss as alleged. There is no merit or bonafides in the complaint and it is filed as an experimental one. Therefore the complaint is to be dismissed with compensatory cost to the opposite party.
5. The complainant was examined as PW1 and Exts. A1 to A5 series were marked on his side. No oral evidence was adduced by the opposite parties and Ext. B1 was marked on their side. Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order. Aggrieved by the order passed by the District Forum, the opposite parties have filed the appeal.
6. Heard both sides. Perused the records. There is no dispute to the fact that the complainant purchased a Tata Sumo Gold vehicle from the 2nd opposite party, manufactured by the 1st opposite party. It is alleged by the complainant that right from the beginning there were complaints to the vehicle and it was informed to the 2nd opposite party. They had done some repair works, but the same complaints continued. He approached the 2nd opposite party to rectify the defects. Even though they have done some repair works the same complaints continued. On further demands made by the complainant to the 2nd opposite party they failed to attend his complaint. So the complainant has filed the complaint against the opposite parties. It is alleged by the complainant that because of the defects of the vehicle he could not use the vehicle properly which he purchased for eking his livelihood by self employment. The opposite parties denied the allegations of the complainant and they contended that the vehicle had run about 49496 km as on 31.12.2013 and it shows that the complainant had been using the vehicle. The 2nd opposite party had done free services to the vehicle of the complainant and they had attended all the complaints made by the complainant regarding the vehicle. An expert commissioner was appointed from the court at the instance of the complainant and he filed Ext. C1 report in which he had noted the defected of the vehicle of the complainant. Considering the report of the commissioner the District Forum has passed the impugned order.
7. The counsel for the appellant submitted that Ext. B1 will show that the 2nd opposite party had done the service of the vehicle of the complainant without charging any amount and the complaints of the complainant regarding the vehicle were attended. The vehicle was purchased by the complainant in June 2012 and he had been using the vehicle and the vehicle had run amount 49496 km as on 31.12.2013. The commissioner inspected the vehicle on 14.03.2014 and noted the damages. In these circumstances the direction of the District Forum to the opposite parties to remove the defective parts of the vehicle as noted in Ext. C1 is unjustified. The respondent/complainant who appeared in person submitted that the complaints noted by the commissioner to the vehicle and stated in Ext. C1 report were with the vehicle from the very beginning and he had intimated those facts to the 2nd opposite party. PW1 deposed that within 3 days of the purchase of the vehicle he had noted that there was unusual sound and vibration to the steering of the vehicle. Whenever the vehicle was taken to the 2nd opposite party pointing out the complaints of the vehicle they used to repair the same and after that for one or two days there will be no complaints. Thereafter the same complaints occurred. Ext. A5 series, job sheets issued by the 2nd opposite party to the complainant shows that the statement made by PW1 is correct. It is stated by the complainant that on repeated demands the 2nd opposite party failed to rectify the defects of the vehicle and so he had filed the complaint. PW1 admitted that he had been using the vehicle, but according to him he was not able to attend long trips demanded by the customers because of the defects of the vehicle. The complainant was examined as PW1 on 09.06.2015. PW1 deposed that till that time the vehicle had run 92000 kms. So it shows that the complainant had been using the vehicle even though there are defects to the vehicle and the case of the complainant is that since there are defects in the vehicle he could not attend long trips as demanded by the customers and he has suffered financial loss. The main complaint of the complainant was regarding the sound and vibration of the steering, vibration of the dash board and that the fuel gauge was not working properly. From Ext. A5 series it can be seen that the complainant had made those complaints within a few months of the date of purchase of the vehicle from the 2nd opposite party. In these circumstances it cannot be found that the defects occurred to the vehicle was because of the use of the vehicle, running so many kilometers and using for months. As found by the District Forum some of the defects to the vehicle seem to be manufacturing defects. It is the case of the opposite parties that the defects of the vehicle of the complainant were rectified. But from Ext. C1 report it can be seen that those defects still exist. Considering the fact that the complainant had been using the vehicle for years and the vehicle had run a considerable distance the direction of the District Forum to remove all defective parts of the vehicle as pointed out by the commissioner in Ext. C1, free of cost, to the satisfaction of the complainant is not justified. It is to be noted that in Ext. C1 report it is not stated which are the parts to be removed and the commissioner has only noted the defects of the vehicle by taking test drive of the vehicle. In these circumstances we consider that the direction made by the District Forum to the opposite parties is to be modified. The District Forum found that the defects of the vehicle still exists and because of that the complainant is unable to use the vehicle properly and because of that complainant sustained monetary loss and there is deficiency in service on the part of the opposite parties and they are liable to answer for that. We consider that there is no reason/ground to interfere with the said finding.
8. In Ext. C1 report the answers to question Nos. 1 to 4 are regarding the sound and vibration of the steering, vibration of the dash board and that the fuel gauge was not working properly. From Ext. A5 series it can be seen that the complainant has made those complaints to the 2nd opposite party within a few months of the purchase of the vehicle. It cannot be found that those defects occurred because of the use of the vehicle by the complainant for several months. So the opposite parties are liable to rectify those defects free of cost. In Ext. C1 in answer to question No. 5 it is stated by the commissioner that he found oil leakage through oil sump packing. PW1 deposed that the said defect was noted by him within few months of purchase of the vehicle and he has intimated that fact to the 2nd opposite party. Ext. B1 shows that the 2nd opposite party had done the service of the vehicle of the complainant free of cost. PW1 admitted that the vehicle had undergone 15 services by the 2nd opposite party. So naturally if there was oil leakage the 2nd opposite party would have rectified the same, otherwise the complainant could not use the vehicle for such a long time and to such a long distance as stated by PW1. So it has to be considered that the said defect might have occurred to the vehicle during the extensive use of the vehicle. In Ext. C1 report in answer to question No. 6 it is reported by the commissioner that 4 tyres found resoled condition and front left and right door inside bottom side found rusty condition. Since the complainant had been using the vehicle for a long time and the vehicle had run a considerable length the opposite parties are not liable to rectify those defects free of cost and to rectify the defects noted as answers to question Nos. 5 & 6 in Ext. C1 report the complainant has to pay the charges for the same to the opposite parties. The opposite parties are liable to rectify the defects as noted by the commissioner in Ext. C1 as answers to question Nos. 1 to 4. So the order passed by the District Forum is to be modified to that effect. We do so.
9. The District Forum directed the opposite parties to pay Rs. 50,000/- as compensation and Rs. 5,000/- as costs to the complainant. The counsel for the appellant submitted that in the complaint the complainant has only sought for Rs. 25,000/- as compensation, but the District Forum has directed the opposite parties to pay compensation of Rs. 50,000/-. On going through the records it is seen that in the original complaint the compensation claimed by the complainant was Rs. 25,000/-, but it was later amended to Rs. 1,50,000/-. We consider that the compensation and costs ordered by the District Forum is to be modified/reduced to Rs. 22,000/- and Rs. 3,000/- respectively. We do so.
In the result, the appeal is partly allowed. The Order passed by the District Forum is modified as follows: Appellants/opposite parties are directed to rectify the defects of the vehicle of the complainant noted/reported by the commissioner in Ext. C1 as answers to question Nos. 1 to 4 within one month from the date of receipt of the copy of this judgment, failing which they are liable to pay Rs. 30,000/- to the respondent/complainant. The appellants/opposite parties are directed to pay Rs. 22,000/- as compensation and Rs. 3,000/- as costs to the respondent/complainant.
Parties are directed to suffer their respective costs.
At the time of filing of the appeal, the appellants had deposited Rs. 25,000/-. The respondent/complainant is permitted to obtain release of the said amount, filing proper application, to be adjusted/credited towards the amounts ordered as compensation and costs.
T.S.P MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
BEENA KUMARY. A : MEMBER
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