BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 31/12/2011

Date of Order : 10/12/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 731/2011

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :-

The complainant is a driver by profession. The complainant purchased a Mahindra Gio Compact truck from the 2^nd opposite party on 01-01-2011 for Rs. 1,73,000/-. One year warranty was provided for the vehicle. The vehicle was purchased for earning his livelihood by means of self-employment. The vehicle started showing several complaints including gear box complaint, rear axle complaint, engine oil leakage, reverse gear complaint gear oil leakage etc. the gear box was replaced. Due to axle complaint, the vehicle was towed to the service centre 4 times. The vehicle was taken for repairing on several occasions. But the same defects repeated, evenafter such repairing works. Finally, the vehicle returned to the complainant on 01-12-2012. That is 10 days after entrustment for replacing the axle. Eventhough the defects occurred within the warranty period, they collected Rs. 750/-. The recurring defects of the vehicle is due to some substantial manufacturing defect of the vehicle. The failure to rectify the defects evenafter repeated repairing work would show that the defects could not be rectified by normal repairing. Due to the recurring defects, the complainant failed to generate any income. Thus, he defaulted the vehicle loan repayment for the last 5 months. The EMI is Rs. 5,930/-. Thus, the complainant is entitled for the refund of the price of the vehicle Rs. 1,73,000/- along with interest at the rate of 12% p.a. and Rs. 1,00,000/- as compensation for the financial loss, mental agony and hardships suffered due to the recurring defects of the vehicle. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The complainant is not a consumer, since the complainant purchased the vehicle for commercial purpose. The transaction between the opposite parties are on principal to principal basis. The 1^st opposite party never had any transaction with the 1^st opposite party and the complaint is not maintainable against the 1^st opposite party. There was one complaint of the gear box, which was sorted out by replacing the complete gear box assembly under warranty. There is no recurring defects or substantial manufacturing defect in the vehicle. The standard warranty for the vehicle is for one year or 60000 Kms., whichever occurs earlier from the date of delivery of the vehicle. There is no deficiency in service on the part of the 1^st opposite party. The complainant is not entitled to get any of the reliefs as prayed for.

3. The 2^nd opposite party filed a separate version raising the very same contentions that of the 1^st opposite party.

4. The complainant was examined as PW1 and Ext. A1 was marked on his side. Ext. B1 was marked on the side of the 1^st opposite party. Neither oral nor documentary evidence was adduced by the 2^nd opposite party. The expert commissioner's report was marked as Ext. C1. Heard the learned counsel for the parties.

5. The points that arose for consideration are as follows :-

1. Whether the complainant is a consumer within the scope of the Consumer Protection Act?

2. Whether the complainant is entitled to get refund of the price of the vehicle with interest from the opposite parties?

3. Whether the opposite parties are liable to pay compensation to the complainant?

6. Point No. i. :- According to the complainant, he purchased the vehicle in question for earning his livelihood by means of self-employment. The opposite parties vehemently contended that the complainant has purchased the vehicle for commercial purpose. Apart from the above contention of the opposite parties in their version, nothing is before us to discard the averments of the complainant that he has purchased the vehicle for earning his livelihood by means of self-employment. Therefore, this point is found against the opposite parties.

7. Point No. ii. :- It is not in dispute that the complainant purchased the vehicle from the 2^nd opposite party on 01-01-2011, which was manufactured by the 1^st opposite party evidenced by Ext. A1 receipt. According to the complainant, time and again, he had to approach the 2^nd opposite party to get the various defects of the vehicle repaired. The complainant maintains that the recurring defects of the vehicle is due to the inherent manufacturing defects of the vehicle. So, the complainant is entitled to get refund of the price of the vehicle from the opposite parties. The learned counsel for the complainant relied on a decision rendered by the Hon'ble National Consumer Disputes Redressal Commission in Tata Engineering Locomotive Company Ltd. and Another Vs. Subhash Ahuja and Another II (2013) CPJ 743 (NC).

8. The opposite parties vehemently and vigorously contended that the vehicle is free from any manufacturing defect and they have attended to the vehicle as and when the complainant approached them for the rectification of the defects. The opposite parties relied on a decision rendered by the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Another 2006 KHC 624 (SC). It is to be noted that neither party did produce the terms and conditions of the warranty in this Forum. During evidence, the complainant who was examined as PW1 deposed that repeatedly he had to approach the 2^nd opposite party to rectify the various defects of the vehicle during the warranty period and thereafter. At the instance of the complainant, an Expert Commissioner was appointed by this Forum. The report of the expert commissioner was marked as Ext. C1 without demur. The expert commissioner in Ext. C1 categorically stated that the vehicle is free from any manufacturing defect. However, the learned Expert Commissioner noted the following defects of the vehicle in Ext. C1 :-

“1. Present condition of the gear box, rear axle and engine of the vehicle supplied to the complainant.

2. Present defects of the mini truck supplied to the complainant especially with respect to the engine, gear box and axle.

Engine

a. Heavy rusting of the outside parts of the engine (Rocker arm cover, crank case, engine mountings, exhaust pipe, engine cover, starter motor casing, fuel injection pump casing).

b. Loose connection and crack in the main fuel over flow pipe.

Gear Box (Trans axle)

a. Rusted mounting bracket and mounting screws.

b. Hard shifting of gears.

Rear axle (Drive Shafts)

Nil

3. Whether the defects if any, can be rectified by normal repairing.

The above mentioned defects can be rectified by normal repairing.

4. The reason for the defect of the vehicle, that is whether due to manufacturing defect.

The defects mentioned are not due to manufacturing defects.

5. Other matters to be pointed out by the complainant at the time of inspection.

Nil.”

The report of the Expert Commissioner goes to show that the above defects can be rectified by normal repair. Therefore, in view of the pronouncement of the Hon'ble Apex Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Another (Supra), we are of the considered opinion that the complainant is entitled to get the defects of the vehicle repaired as per the report of the Expert Commissioner in Ext. C1.

9. Point No. iii. :- By relying on the decision rendered by the Hon'ble National Commission in Tata Engineering Locomotive Company Ltd. and Another Vs. Subhash Ahuja and Another II (2013 CPJ 743 (NC), the complainant contended that the complainant is entitled to get compensation for the deficiency in service on the part of the opposite parties. It is to be noted that the complainant had to run from pillar to post to get the defects of the vehicle repaired during the warranty period and even thereafter. Naturally, he had to suffer lot of inconveniences and mental agony due to the deficiency in service on the part of the opposite parties. We award a compensation of Rs. 10,000/- to the complainant.

10. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall jointly and severally rectify the defects of the vehicle as reported by the Expert Commissioner in Ext. C1 to the satisfaction of the complainant.

2. The opposite parties shall jointly and severally also pay Rs. 10,000/- (Rupees Ten thousand only) to the complainant towards compensation for the mental agony and inconveniences caused to the complainant.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 10^th day of December 2014.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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