IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday, the 29th day of July, 2017
Filed on 17.01.2015.
Present
1) Smt. Elizabeth George (President)
2) Sri. Antony Xavier (Member)
3) Smt. Jasmine D (Member)
in
CC/No.22/2015
Between
Complainant: Opposite parties:
Sri.Hussain 1. The Manager
S/o Muhammed TATA Motors Ltd
Navas Bhavan Regional Office, 14th floor
Thamarakulam.P.O Canberra Towers , UB City-24
Alappuzha. Vittal Mallya Road Bangluru- 560001
Karnataka.
2. The Manager
Popular Mega Motors India Ltd
(Co-operative Office), Trinity Towers
Chattangattu road, Palarivattom
Cochin-682025
3. The Manager
Popular Mega Motors India Ltd
(Commercial Vehicle Dealer)
VIII/123A, Kappakkada
Punnapra north
N.H.47, Alappuzha-688004
O R D E R
SMT. JASMINE D. (MEMBER)
The case of the complainant in short is as follows:-
The complainant purchased a TATA SFC 909 BSIII/38 CLB model vehicle from 3rd opposite party manufactured by the 1st opposite party to earn his lively hood . Complainant purchased the vehicle after availing a loan from TATA Motors Finance Ltd and also sold his old vehicle and also pledged some gold ornaments to procure the initial payments. Before running 2000kms the vehicle gives some trouble to the complainant. The tyre of the vehicle burst due to overheating of the housing. The complainant approached the 3rd opposite party many times with the same complaint. The 3rd opposite party replaced the tyre many times but the defect persisted. The vehicle was returned to the complainant after replacing the tyre most of the times it take nearly 10 days and the complainant sustained huge financial loss due to the non plying of the vehicle. On several occasions the complainant had to purchase tyre from outside and for which he had spend more than 96000 rupees. The complainant purchased the said vehicle to earn his livelihood and he is the only bread winner of the family. But now the complainant is not in a position to remit the even monthly instalments of the loan due to the imperfection of the vehicle. Legal notice was issued to opposite party on 11/11/2014 requesting for replacement of the vehicle. Thereafter the 3rd opposite party informed the complainant to handover the vehicle to the 3rd opposite party on 3/1/2015 and the returned the same on 8/1/2015 and charged an amount of Rs.10861/-. But the same defect continued. Before running 40kms after the said repairing the tyres were again burst. Now the complainant could not use the vehicle and the act of the opposite parties caused much mental agony inconvenience and financial loss to the complainant . hence filed this complaint seeking replacement of the vehicle along with compensation and cost.
2. Version of the 1st opposite party is as follows:-
Complaint is not maintainable. The complainant has no case that there is deficiency in service on the part of the 1st opposite party this opposite party is unnecessary made a party to the proceedings. It is pertinent to state that the relationship between this opposite party and the second opposite party is of principal to principal and this opposite party is in no way liable or responsible for the alleged transactions between the complainant and the second opposite party. The complaint is hence liable to be dismissed for mis-joinder of unnecessary party. It is submitted that the warranty offered on every vehicle, manufactured by this opposite party, is subject to the terms & conditions of the warranty as contained in the operator’s service book. Under the circumstances, the complainant cannot claim services as per the terms and conditions of the warranty policy as a matter of right. This opposite party is instructed to state that the complainant is using the vehicle for transporting sand. It is pertinent to state here that the GVW of the vehicle as per design is 9050kg. However the complainant is transporting 230 cub of sand dust which would be 11 tone of the payload. The unladen weight of the vehicle as per the registration certificate is 3430kg. Thus total GVW carried is 14430kg., which is way above the specified GVW of 9050kg. In order to carry the additional load the complainant has modified the spring leafs by adding 5 numbers of leafs. On account of the complaint regularly plying the vehicle with excess load than prescribed, it is only but natural that the tyres fitted to the vehicle would brust. It is submitted that there is no defect much less any manufacturing defect in the vehicle purchased by the complainant. For the same reason this opposite party is in no way liable or responsible to replace the vehicle or refund its price. The complainant is further not entitled either in law or on facts to seek replacement of his vehicle or for refund of its price. He has made the said claim without any bonafides and with ulterior motives. Hence there is no deficiency in service on the part of the opposite party the complaint may be dismissed.
3. Version of the opposite parties 2 & 3 are as follows:-
Complaint is not maintainable. The complainant is not a consumer the subject matter of the complaint is a commercial vehicle and the same is used for commercial purpose and hence the complaint maybe dismissed. The vehicle was being subject to over loading quiet often the vehicle is being used for carrying construction materials including quarry products the maximum capacity of goods that can carry 5.5 tons, where as the vehicle was used to carry double of the said permissible load. In order to facilitate the over loading the complaianant had added spring leaf to the suspension which is amounting violation of the warranty conditions. The said alteration was done only for the purpose of carrying more loads than prescribed by load. The allegation of the complainant that he had spend Rs. 96000/- towards tyres and the opposite party liable to reimburse the same is unsustainable the opposite parties are ready to repair the vehicle subject to terms and conditions of the warranty from the service history. On January 2015 shows that the vehicle has already done 27061kms and which indicates that the vehicle was being put to use on regular basis. There is no deficiency in service on the part of the opposite party and opposite party 2 & 3 are not liable to compensate the complainant. Hence the complaint may be dismissed.
4. Complainant was examined as PW1 and documents Ext.A1 to Ext.A26 were marked. RW1 and RW2 were examined the side of the opposite party and documents Ext.B1 to Ext.B4 were marked.
5. . Considering the allegation of the complainant and contention of the opposite parties the Forum has raised the following issues:-
- Whether there is any deficiency in the service of the Opposite Parties?
- Whether the complainant is entitled to get the relief and cost?
6. Issues 1 and 2:-
The case of the complainant is that the complainant had purchased the vehicle from the 3rd opposite party manufactured by the 1st opposite party.The complainant is the only bread winner of the family purchased the vehicle earn his livelihood with great expectation.The specific case of the complainant is that the tyre of the said vehicle burst frequently and this is due to some inherent defect of the vehicle.Admittedly the complainant purchased the vehicle on 6/11/2013 and according to the complainant within one year he has replaced the tyres six times.And the complainant is entrusted to the vehicle to the 3rd opposite party for repairing many times and each times the opposite party had taken more than 10 days to repair and return the vehicle.Hence he could not ply the vehicle and thereby he sustained loss of income and failed to remit the monthly instalments of the loan. The complainant sustained much mental agony and huge financial loss and due to the recurring defect of the vehicle hence filed this complaint.The main contention of the opposite party is that the vehicle was carrying load more than capacity fixed by the manufacturer and tyre burst due to the over loading of the vehicle.
7.Fromthe documents it can be seen that the vehicle was entrusted to the opposite party for a number of times and the tyres were replaced the tyre 6 times within a year.The documentproduced by the complainant would show that tyre of the said vehicle was burst immediatelyfor 2 months from the date of purchase and thereafterthe tyreswere replaced 6 times within a year and the same was evidenced from Ext.A6,Ext.A9, Ext.A16, Ext.A18 and Ext.A19.According to the complainant the vehicle supplied by the opposite parties is defective and he could not use same.The complainant who is a poor driver purchased by the vehicle with great expectations to earn his livelihood.According to the complainant the opposite parties failed to rectify the defect no the vehicle therefore he needs to replacethe vehicle.The main contention of the opposite parties is that the complainant carry over loads in his vehicle and the tyre burst because of over loading and in order to substantiate the same that they produced Ext.B1 issued by the United Granites an Metals dtd.1/1/2015. It is pertinent to note that Ext.B1 was issued on 1/1/2015 but before thatthe complainant had replaced the tyre6 times therefore we cannot say that the tyres burst due to over loading as contented by the opposite party. More over the credibility of the said documents has not been proved.Furthermore Ext.B2 shows that within one year from the date of purchase the complainant had approached service centre 12 timesfor various complaints.Complainant purchased the vehicle after spending a huge amount, but the vehicle started giving problems to the complainant one after the other.The complainant sought for replacement of the vehicle, but no inherentor recurring defect of the vehicle was proved.In the absence of an expert opinion we can’t direct the opposite parties to replace the vehicle as sought by the complainant.But it is true that the complainant has sustained much mental agony inconvenience due to the repeated defect of the vehicle.Admittedly the tyre of the vehicle burst many times.According to the complainant opposite parties failed to find the root cause of the frequent bursting of tyres and the same is not rectified so far.So they have committed deficiency in service and are liable to compensate the complainant for the mental agony inconvenience and loss sustained.
In the result the complaint is allowed partly, the opposite parties are directed to pay an amount of Rs. 20000/- (Rupees Twenty thousand only) to the complainant as compensation.Opposite parties are further directed Rs.2000/-(Rupees Two thousand only) towards cost.The order shall be complied within one month from the date of the receipt of this order.
Dictated to the Confidential Assistant transcribed by him corrected by me an pronounced
in open Forum on this the 29th day of July, 2017.
Sd/-Smt. Jasmine D (Member)
Sd/-Smt. Elizabeth George (President)
Appendix:-
Evidence of the complainant:-
PW1 - Hussain.M(Witness)
Ext.A1 - Sale Agreement
Ext.A2 - Order booking Form
Ext.A3 - Copy of RC Book
Ext.A4. - Pawn Ticket dtd. 26/11/2013
Ext.A5 - Loan payment schedule.
Ext.A6 - Replacement award dtd.25/1/2014
Ext.A7 - Copy of Job order dtd. 17/4/2014
Ext.A8 - Tax invoice dtd.9/7/2014.
Ext.A9 - Original bill dtd. 25/8/2014
Ext.A10 - Copy of Job Order dtd. 7/4/2014.
Ext.A11 - Tax invoice dtd.08/4/2014
Ext.A12 - Tax invoice dtd.05/3/2014.
Ext.A13 - Tax invoice dtd. 22/1/2014
Ext.A14 -
Ext.A15 - Inventory Check list dtd.12/4/2014.
Ext.A16 - Original bill of Grace tyres dtd. 18/7/2014.
Ext.A17 - Sales bill dtd. 5/11/2014.
Ext.A18 - Copy of Complaint docket dtd. 16/9/2014.
Ext.A19 - Sale Bill dtd. 6/11/2014.
Ext.A20 - Regd. Letter dtd 22/11/2014
Ext.A21 - Copy of License Details
Ext.A22 - Receipts
Ext.A23 - Receipts
Ext.A24 - Proforma Invoice.
Ext.A25 - Cash Sales dtd 4/2/2015.
Ext.A26 - Cash Sales dtd. 7/3/2015.
Evidence of the opposite party:-
RW1 - Mathew Zacharia(Witness)
RW2 - R. Anil kumar(Witness)
Ext.B1 - Sale Bill dtd.1/1/2015.
Ext.B2 - Service History
Ext.B3 & B4 - Photographs & report.
//True copy//
By Order
Senior Superintendent
To
Complainant/Opposite parties/SF
Typed by: Br/-
Comped . by:
