KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 132/2014

JUDGMENT DATED: 12.12.2024

PRESENT:

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

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

COMPLAINANT:

Baiju, S/o Lakshmanan, Uppukandathil House, Vattappara P.O., Idukki.

(By Adv. C.S. Rajmohan)

                                                Vs.

OPPOSITE PARTIES:

1. M/s Mahindra Construction Equipment, Mahindra & Mahindra Limited, Gateway Building, Appollo Bunder, Mumbai-400 001.

(By Adv. Sunil C.G., Adv. Saji Mathew and Adv. Narayan R.)

2. Keracon Equipments Pvt. Ltd., VI/784 B, Seethys Tower, Seaport, Airport Road, Vallathol Junction, Thrikkakkara, Cochin-682 021.

(By Adv. Lal K. Joseph and Adv. Suja Madhav)

3. The Branch Manager, Mahindra Finance, Building No. 11/782, A4, Flayidathu Shopping Complex, Adimali P.O., Adimali.

(By Adv. Abhishek R.V.)

JUDGMENT

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

The complainant purchased one Maheendra Earth Master (herein after referred to as “vehicle”) from the 2^nd opposite party, which was manufactured by the 1^st opposite party, for the purpose of his livelihood as he was an unemployed youth.  The price of the said vehicle was Rs. 22,40,000/- (Rupees Twenty Two Lakh Forty Thousand only).  The complainant availed a loan for an amount of Rs. 20,00,000/- (Rupees Twenty Lakh only) for purchasing the vehicle, from the 3^rd opposite party, who is the sister concern of the 1^st opposite party.

 2.  It is contended that from the very next day of the purchase itself, the complainant noticed many major defects on the vehicle.  The complainant started using the vehicle on 18.01.2012.  Due to an inherent manufacturing defect, it was very difficult to operate the vehicle.  Due to the inadequacy of weight in the front portion, the vehicle used to go upwards and due to that defect, the front tyres also used to go upwards in hilly area and uneven surface, causing loss of control over the vehicle.  Due to the above defects, three accidents occurred.  In the third accident, the vehicle fell into a ditch having 200 ft depth.  The stabilizer legs and the front lock bucket were not functioning properly.  The mileage was also very low.  Inner stabilizer legs were worn out completely and due to this, the vehicle was shivering and twisting excessively.  The brake of the vehicle was not working properly.  The complainant sustained huge financial loss, by compensating the third parties, who met with the accident.  Hydraulic hose connecting the pump and outer was broken several times and due to this, the vehicle had become idle.  The vehicle was having manufacturing defect.  As the vehicle was having manufacturing defect, it was dangerous to ply the vehicle. The complainant entrusted the vehicle with the 2^nd opposite party on many occasions for rectifying the defects.  However, the 2^nd opposite party was not able to rectify the inherent manufacturing defects.  There was also no authorized service center to rectify the defects.  The spare parts are also not available in the market.  This would amount to deficiency in service and in the said circumstances, the complainant claimed reimbursement of the purchase price of the vehicle with interest from the date of purchase.  The complainant further requested for a direction to the opposite parties 1 and 2 to reimburse the loan amount, availed by the complainant from the 3^rd opposite party for purchasing the vehicle, to the 3^rd opposite party. The complainant also requested to pass an order directing the opposite parties 1 and 2 to recall all the similar vehicles as it is not roadworthy.  The complainant further requested to pay an amount of Rs. 5,00,000/- (Rupees Five Lakh only) as compensation for the mental agony and costs. 

3.  The 1^st opposite party filed version contending that there was no occasion for the complainant to have direct contact with the 1^st opposite party in any manner whatsoever.  The complainant is a Government contractor and the said vehicle was for the commercial purpose employing expert drivers and hence the present complaint is not maintainable as the complainant does not come under the definition of ‘consumer’ as defined under the Consumer Protection Act, 1986.  The allegation that the complainant sustained loss on various grounds is absolutely false.  The allegation that the vehicle met with many accidents by itself would establish that the vehicle was being used in an improper manner by the complainant.  The expense, if any, might have occurred due to the misuse of the vehicle by the complainant.  The allegation that the stabilizer legs and front load bucket are not functioning properly is absolutely false.  The further allegation that the vehicle cannot be driven properly is falsely raised.  The vehicle is not having any manufacturing defect as alleged in the complaint.  The poor performance of the brake system maybe due to the worn out friction plate or driven plate or insufficient pressure of hydraulic fluids in the brake circuit.  The vehicle was used for 1387.8 hours as on 25.07.2014 even though the vehicle was poorly serviced.

4.  The 2^nd opposite party filed version identical to that of the version filed by the 1^st opposite party. 

5.  The 3^rd opposite party is the financier of the vehicle.  He also contended that the vehicle did not have any manufacturing defect. The 3^rd opposite party supported the contentions of the other opposite parties on all material aspects.  However, the 3^rd opposite party is only a financier and hence his contentions are not relevant for the adjudication of the issue in this case. 

6.  Before filing the present complaint, the complainant filed a complaint before the District Consumer Disputes Redressal Commission, Idukki, (for short ‘the District Commission’) on 09.07.2013. On 30.09.2014, the District Commission directed to return the complaint for presentation before the appropriate commission, on finding that the District Commission had no pecuniary jurisdiction to entertain the complaint.  Accordingly, the present complaint was filed. 

7.  PW1 was examined and Exhibits P1 to P4 were marked for the complainant.  DW1 was examined and Exhibit D1 was marked for the 1^st opposite party.  Exhibit P1 is the cash bill for the purchase of the vehicle.  Exhibit P1 contains the sale certificate of the vehicle as well.  Exhibit P2 series contain service reports.  Exhibit P3 is the order passed by the District Commission, permitting the complainant to withdraw the complaint for filing the complaint before the appropriate authority.  Exhibit P4 is the report filed by the expert who had inspected the vehicle. Exhibit D1 is the copy of the complaint filed before the District Commission.

8.  Heard both sides and perused the records.

9.  The points that arise for consideration are:

1. Whether the vehicle has any manufacturing defect?
2. Whether there is any deficiency in service on the part of the opposite parties as alleged in the complaint?
3. Reliefs and costs?

10.  For the sake of convenience and to avoid the risk of repetition, these three points shall be considered together. 

11.  Points (i) to (iii):

It is not disputed that the complainant purchased the vehicle (Maheendra Earth Master) from the 2^nd opposite party, who is the authorized dealer of the 1^st opposite party, the manufacturer.

12.  The complainant would contend that the said vehicle had major defects from the very next day of the purchase of the vehicle itself and hence the complainant found it very difficult to operate the vehicle.  The complainant would allege that the vehicle had inherent manufacturing defects and hence it is not worth for excavation works.  Due to the lack of weight in the front portion, the machine would go upwards and as a consequence, the front tyres would also go upwards in hilly areas and uneven surfaces, causing loss of control over the vehicle.  The stabilizer legs were not functioning properly to hold the vehicle firmly on the ground.  The front load bucket was not holding steadily.  The brake system would not function if the front portion was moved upwards.  Due to the said reason, the vehicle met with many accidents.  Once the vehicle fell into a ditch having 200 ft depth due to the inherent manufacturing defect.  The mileage is also very low.  The inner stabilizer legs were worn out completely.  Consequently, the machine was shivering and twisting excessively.  The hydraulic hose connecting the pump and the outer was broken several times and due to this, the vehicle became idle.  The scarcity of spare parts made the life of the complainant in peril.  The complainant on several occasions entrusted the vehicle with the 2^nd opposite party to rectify the defects.  But the 2^nd opposite party was not able to rectify the inherent manufacturing defects.  There is also no authorized service center to rectify the defects and do the services.  The spare parts are not available in the market.  This amounts to gross negligence and deficiency in service. 

13.  The opposite parties 1 and 2 would contend that there was no manufacturing defect as alleged by the complainant.  All the systems of the vehicle, including the brake system, were functioning properly.  The spare parts are also available in the market.  The defects alleged by the complainant occurred due to the wear and tear of the vehicle as there was no periodic service of the vehicle. 

14.  Exhibit P2(a)(i) would show that the vehicle was taken to the workshop by the complainant on 18.01.2012, which was on the next day of purchase of the vehicle.  Exhibit P2(a)(i) would further show that the rear door lock complaint, improper working of diesel tank cap, oil leaking, engine valve block etc. were the problems attended on that day. The vehicle was again taken to the workshop on 20.01.2012 as is evident from Exhibit P2(c). On 24.01.2012 also, the vehicle was taken to the workshop as is evident from Exhibit P2(b)(i).  The slow operation of excavator, mileage checking and stabilizer shaking were the problems attended in the workshop on that day.  The vehicle was also taken to the workshop on 23.04.2012 as is clear from Exhibit P2(d).  At that time, the stabilizer ram oil leaking and excessive shake of the excavator side were the problems attended in the workshop. 

15.  Exhibit P4 is the report filed by the expert appointed by the District Commission when the complaint was pending before that Commission.  Exhibit P4 report was marked without any objection before this Commission.  The expert noted in Exhibit P4 report that the brake system of the vehicle was not working satisfactorily.  The stabilizer legs were having poor performance and it used to generate vibration to the equipment while working on stabilizer.  In normal slopped terrain, the bucket attached to the front loader assembly used to lift upwards while operating the rear side attached excavator.  The automatic lifting of the front loader was very rigorous while operating the excavator to swing from right to left.  The problem of automatic lifting of the front loader was getting increased while the equipment was working in slopped terrains.  The expert had further reported that the poor brake system might be due to the worn out friction plate or driving plate.  The insufficient pressure of hydraulic fluids in the brake circuit might have also caused poor performance.  As regards the poor performance of the stabilizer, the expert was of the opinion that the said performance might be due to the worn out wear pad or worn out internal and external strip or worn out tube.  As per Exhibit P4 report, the defect on the front loader could be avoided by increasing the counter weight of the equipment. 

16.  The opposite parties 1 and 2 would contend that the defects noted by the expert were due to the wear and tear of the vehicle.  They also contended that the vehicle was used for more than 10000 hours.  However, the reading noted by the expert was 1387.8 Hrs.  No material is available on record to show that the vehicle was operated more than 1387.8 Hrs.  Since no objection was filed to Exhibit P4 report of the expert, the said report has to be accepted. 

17.  There is no material before the Commission to indicate that the vehicle in question did not have the defects reported by the expert in Exhibit P4 report.  Exhibit P2 series would show that the vehicle was having frequent problems in respect of the stabilizer and excavation operation system.  Even on 24.01.2012, when the vehicle was taken to the work shop, the vehicle was having stabilizer shaking as per Exhibit P2(b)(i).  Exhibit P4 report submitted by the expert would also show that the vehicle was still having problem with the stabilizer.  The excavator problem was also there as per Exhibit P2(b)(i).  In Exhibit P4 report also, there was problem with the front loader.  On 23.04.2012, the vehicle was taken to the workshop again as per Exhibit P2(d).  Then also, the vehicle was having stabilizer ram oil leaking and shake on the excavator side.  It is true that the vehicle was used for 1387.8 Hrs.

18.  The learned counsel for the opposite parties submitted that the defects noted in Exhibit P4 report were caused when the vehicle fell into a ditch having 200 ft depth and hence the opposite parties were not responsible for the defects noted by the expert.  The 2^nd opposite party admitted in the version that the vehicle did not sustain damage even to a single part due to the fall into the ditch having 200 ft depth and that the vehicle functioned properly even thereafter.  In view of the above admission, the submission in this regard cannot be sustained.

19.  Exhibit P4 report is silent as to whether the defects noticed by the expert were manufacturing defects or not.  The complainant contended that the complainant had taken the vehicle to the workshop of the 2^nd opposite party on so many occasions.  However, they could not rectify the defects.  Even though the complainant alleged that there was manufacturing defect, no material is available to prove the same.  It is settled law that it is the duty of the complainant to prove, through an expert, that the vehicle had manufacturing defects.  However, the manufacturer and the dealer were also duty bound to explain about the real problem due to which the defects noted by the expert occurred.  It is contended by the complainant that the vehicle was purchased for the purpose of excavation.  However, it is borne out from the evidence of PW1 coupled with Exhibits P4 and P2 series that due to the problems in the brake system, stabilizer legs system and the front loader system, the complainant was not in a position to use the vehicle in an effective manner to make maximum utility out of the said vehicle.  The 2^nd opposite party was not prepared to rectify the defects despite repeated requests by the complainant. 

20.  The shivering of the stabilizer, the problem on the front loader system and the poor braking system ought to have been rectified by the 2^nd opposite party.  Some of the said defects were seen even from the time of purchase itself as is evident from the evidence on record.  The complainant had also a contention that the spare parts were not available in the market and hence the 2^nd opposite party could not rectify the defects.  The further contention of the complainant is that there was no authorized workshop for repairing the vehicle.  Having gone through the relevant inputs including Exhibit P2 series and Exhibit P4 report, we are of the view that both the 1^st and the 2^nd opposite parties were duty bound to rectify the defects of the vehicle.  However, the opposite parties 1 and 2 did not incline to rectify the defects.  If any part had to be replaced, that ought to have been done by the 2^nd opposite party with the help of the 1^st opposite party.  However, that was also not done. 

21.  From the evidence on record, it can be seen that the vehicle was having defects as noted in Exhibit P4 report, though there is no material to show that the said defects were manufacturing defects.  Since opposite parties 1 and 2 did not rectify the defects despite repeated requests, there was deficiency in service on their part in this regard.  It is contended by the complainant that on 09.07.2013 when Exhibit D1 complaint was filed before the District Commission, the vehicle was having warranty.  The above said contention was reiterated by PW1 in his evidence as well.  The said fact is not disputed by the opposite parties.  Therefore, it can be safely held that the vehicle was having warranty during the period when the cause of action for the complaint had arisen. 

22.  Since the complainant had taken a contention in Exhibit D1 complaint that the complainant was a Government contractor, the complaint was not maintainable as the transaction was a commercial transaction, contended by the opposite parties 1 and 2.  However, PW1 clearly stated that the purchase of the vehicle from the opposite parties 1 and 2 was to earn his livelihood, as the complainant was an unemployed youth.  In the said circumstances, the contention in this regard cannot be sustained. 

23.  Having gone through the relevant inputs as discussed above, we are satisfied that there was deficiency in service on the part of the 1^st and the 2^nd opposite parties in rectifying the defects of the vehicle purchased by the complainant from the 2^nd opposite party as per Exhibit P1 bill.  In the said circumstances, they are liable to rectify the defects and hand over the vehicle to the complainant in a roadworthy condition.  The complainant had sustained mental agony and financial loss as the vehicle was purchased by the complainant with an expectation that the said vehicle could be used profitably for his livelihood.  However, due to the defects, the vehicle could not be operated with its full efficiency.  In the said circumstances, the complainant had naturally sustained loss as contended by the complainant.  Therefore, the opposite parties 1 and 2 are liable to pay compensation to the complainant. The 3^rd opposite party is only a financier against whom no relief is sought for in this complaint.  Therefore, we are not inclined to pass any order against the 3^rd opposite party.  That apart, the 3^rd opposite party was not responsible for the defects in the vehicle purchased by the complainant. 

In the result, this complaint stands allowed on the following terms:-

1. the opposite parties 1 and 2 are directed to repair the vehicle and hand over the same to the complainant in a roadworthy condition within 30 days of receipt of this judgment, failing which the opposite parties 1 and 2 shall jointly and severally pay Rs. 5,00,000/- (Rupees Five Lakh only) to the complainant on the expiry of the said 30 days, for the purpose of repairing the vehicle by the  complainant.  If not paid within the period as directed above, the amount of Rs. 5,00,000/- (Rupees Five Lakh only) shall carry an interest @ 9% per annum till realization.
2. the opposite parties 1 and 2 are jointly and severally directed to pay compensation of Rs. 1,00,000/- (Rupees One Lakh only) and costs of Rs. 10,000/- (Rupees Ten Thousand only) to the complainant within 30 days of receipt of this judgment.
3. if the compensation is not paid within 30 days from the date of receipt of this judgment, it shall carry interest @ 9% per annum from the date of default till realization. 

All Interlocutory Applications stand closed. 

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

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APPENDIX

I.       COMPLAINANT’S WITNESS:

          PW1  - Baiju U.L.

II.      COMPLAINANT’S DOCUMENTS:

P1     - Copy of the retail invoice dated 17.01.2012 and Sale Certificate

P2 series      - Copy of service reports

P3     - Copy of the order in CC. No. 227/2013

P4     - Copy of commission report

III.     OPPOSITE PARTY’S WITNESS:

          DW1 - Gomathi Vinayagam

IV.     OPPOSITE PARTY’S DOCUMENTS:

D1     - Copy of complaint filed before the District Commission, Idukki

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

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