State Consumer Disputes Redressal Commission
The M D M/S V E Commercial Vehicles ... vs K Rameshan on 17 December, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.550/2014 JUDGMENT DATED 17/12/2015 PRESENT: SMT. A. RADHA : MEMBER SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER APPELLANTS: The Managing Director, M/s. VE Commercial Vehicles Ltd., 102, Industrial Ara, No.1, Pithampur-454 775, Distt. Dhar (M.P), India. The Managing Director, M/s. PSN Automobiles (P) Ltd., Punnapra North Panchayat, Paravoor, Alappuzha-688 014. (By Advs: Menon & Menon) Vs RESPONDENT: Sri. K. Ramesan, Lakshmivilasam, North Aryadu P.O., Alappuzha. (By Adv: M.P. Ajayan) JUDGMENT
SMT. A. RADHA : MEMBER Appellants are the opposite parties in C.C.No.150/2013 on the file of CDRF, Alappuzha who came up in appeal.
2. The case of the complainant is that the complainant purchased an Eicher 10.80 Tipper from the opposite party on 8/10/2010. Immediately after purchase the vehicle displayed some sort of hiccups running which was corrected by the 2nd opposite party. Each and every time similar problems cropped up and the opposite parties assured that the impairment of the vehicle would be soon rectified. On 5/4/2013 while carrying washed up sand from Muvattupuzha the vehicle broke down on the road which was taken to the 2nd opposite party. The estimated repairing cost was Rs.1,57,311/-. The opposite party demanded huge amount for repairing charges. The complainant sustained monetary loss as well as mental agony and hence filed this complaint seeking direction to repair the vehicle free of cost and also for compensation of Rs. 4 Lakhs.
3. The 1st opposite party filed version stating that the complainant is not a consumer and no deficiency in service on the part of opposite party. The complaint is bad for mis-joinder of unnecessary party. The purchase of Eicher Tipper is admitted. The vehicle of the complainant was towed on 5/4/2013 to the workshop of the 2nd opposite party due to a brake down. It is stated that the complainant failed to adhere to the directives in the Operator's Manual. The vehicle had over run and got damaged owing to the breakage of tappet. The push rods, camshaft and connecting rods also got damaged and the subsequent damage to the engine was due to the usage of vehicle. The complainant is not entitled to the benefits of the warranty and he is entitled only for repairs to be carried on payment basis. The complainant had not carried out periodical service at authorized service centers of the opposite party and that also does not entitle the complainant to the benefits of warranty. As a gesture of goodwill the opposite party reduced Rs.30,000/- towards repairing charges and instructed the complainant to remit 50% of the repair charges as advance. The complainant refused to pay or take delivery of the vehicle from the opposite party. On 27/5/2013 the 2nd opposite party issued a letter to remove the vehicle from the workshop as it was occupying valuable space in the workshop. The opposite party is not liable or responsible to compensate the complainant. No relief sought by the complainant is entitled and it is beyond the scope of the jurisdiction of Consumer Forum.
4. The 2nd opposite party also took the same contentions raised by the 1st opposite party with regard to the term of complainant as 'consumer' and the contention of mis-joinder of unnecessary party. The complainant purchased the vehicle after being convinced of the performance and expressing satisfaction. The brake down on 5/4/2013 and towing the vehicle to the workshop of the opposite party admitted. The complaint to the engine had occurred on account of complaint of improper, rash and negligent use of the vehicle. The vehicle was used to over run and resulted in the damage to the engine and breakage of tappet. The complainant is not entitled to the benefits of warranty. It is also pointed out that the complainant had not carried out the periodic services at authorized service centers of 1st opposite party. The estimated repair charges was Rs.1,57,311/- and the opposite parties were ready to give a reduction of Rs.30,000/- in repair charges and informed the complainant to deposit 50% of total cost of repair charges in advance which was refused by the complainant and left the vehicle at the premises of the opposite party. The complainant had not accorded sanction for carrying out the repairs on payment basis after depositing 50% of the estimated repair charges. The complaint is filed with malafide intention and this opposite party is in no way liable to compensate the complainant. The complainant is not entitled for any relief sought in the complaint and the complaint is only to be dismissed.
5. The evidence consisted of the oral testimony of complainant as PW1 and documents were marked as Exbts. A1 and A2. The expert commissioner was examined as CW1 and the commission report was marked as Exbt. C1, on the part of opposite party RW1 and RW2 were examined. On appreciation of evidence and documents the District Forum allowed the complaint and directed the opposite parties to repair the vehicle free of cost and also to pay compensation of Rs.5,000/- and Rs.2,000/- as cost of proceedings, this was challenged in appeal.
6. The counsel for the appellant argued that the alleged defect is not a manufacturing defect. On brake down of the vehicle the vehicle was brought to the service centre of the appellant and on inspection noticed that the complaints to the engine had occurred due to over run. The over run happens by shifting the gears while driving down a slope without slowing the vehicle. In such cases the valves and cylinder block get damaged owing to the breakage of the tappet. The push rods, camshaft and connecting rods also get damaged whereby the entire engine would get damaged. As the damage caused to the engine of the vehicle was on over run the repairs could be carried out on payment basis only. The respondent is not entitled for the benefits of warranty. It is also pointed out by the counsel that prior to the brake down on 5/4/2013, the respondent had not carried out the periodic service at authorized service centers of the 1st appellant. This also results in the denial of benefits under warranty. The estimated repair charges was Rs.1,57,311/- out of which Rs.30,000/- was reduced as a gesture of goodwill and on payment of the 50% of repair charges the appellant agreed to cure the defect for which the respondent was not amenable. Even on 27/5/2013 the respondent had not informed the consent to repair the vehicle nor the respondent paid 50% of the repair charges in advance and as such the appellant could not carry out the repair works of the damaged vehicle. The report of the expert commissioner cannot be admitted as nothing was inspected by the commissioner personally. Hence the findings regarding the condition of engine by the commissioner were refuted by the appellants. It is argued that as per the decision of the Hon'ble Supreme Court reported in AIR 1999 SC 3318 an expert commissioner is expected to furnish data and materials in support of his conclusion. In the instant case, the report does not disclose that the expert commissioner had produced any data or material in support of the conclusion. As the periodic services were not carried out in the authorized service centers of the appellant during the warranty period, the appellants are entitled to reject the claim for benefit of warranty. In the event of violation of an express condition of warranty the party is not entitled to subsequent claim benefit of warranty. No material is produced to prove otherwise. It is settled position of law that in order to claim compensation onus is on the complainant to prove the alleged loss in that regard. Moreover the vehicle in dispute had over weight of M-sand being around 7 tones instead of 4 tones to be carried out by the vehicle. Hence the violation of condition of warranty does not entitle the complainant to claim benefits of warranty.
7. Resisting the arguments, the counsel for the respondent submitted that the Eicher Tipper vehicle purchased in 2010 was for the purpose of livelihood of the complainant. On 25/4/2012 while the vehicle was carrying washed M-sand the vehicle had brake down in the middle of the road and had to tow the vehicle to the 2nd opposite party's service station. The engine of the vehicle collapsed due to manufacturing defect and the estimated repair charges given by the opposite party was Rs.1,57,311/-. At the time of accident the vehicle was having valid warranty. The appellants demanded 50% of the estimated cost of repair in advance in order to carry out the repair of the vehicle. It is the definite case of the respondent that the vehicle was having valid warranty and insisted to charge free rectification of the vehicle. The respondent is entitled to get the vehicle repaired free of cost. The respondent sustained monetary loss and mental agony. Hence the allegation of the complainant against the appellant is deficiency in service and it is to be compensated properly. The allegation of the opposite party that the respondent had not carried out periodical service is not proved by the appellants and for that reason the respondent cannot be denied of the benefits of warranty. The reason for the defect in the engine was caused due to over run is not proved by the appellants. The other allegation raised by the appellant is with regard to the over load of the vehicle which caused the damage to the engine. This contention was raised only at the time of cross examination of the complainant. Hence the appellants failed to prove such contention against the complainant's vehicle. The expert commissioner arrived at a conclusion that the defect of the engine was occurred due to manufacturing defect. The vehicle was kept in the open air since 5/4/2013 till date. Now the body of the vehicle is fully corroded and it requires patch work. Besides the 6 tyres of vehicle also perished and became useless. It is also a herculean task for the complainant to test and obtain fitness certificate. Hence the appellants are liable to rectify the defects and also entitles for the compensation and cost of proceedings.
8. We have heard both the counsels extensively and had gone through records. It is an undisputed fact that Eicher Tipper vehicle of the complainant brought down on 5/4/2013 and the vehicle was brought for repair to the service station of the appellants. As per the report of the expert commissioner the engine got damaged and it is a manufacturing defect. Now to the question of warranty the vehicle purchased in 2010 and the vehicle is having warranty of 36 months for the engine. The violation of the condition is one of the reasons raised by the appellant in order to charge the payment of repair charges. The respondent had not carried out the periodical services at the authorized centers of the appellant before 5/4/2013 which denies the benefits of warranty. Moreover the over run and overweight are the two reasons stated for exclusion for the complainant to avail repair free of cost. The report of the commissioner clearly states that the damage caused to the engine is due to the manufacturing defect. The commissioner inspected the vehicle in the presence of the appellants and at the time of visit the engine assembly of the vehicle was in dismantled condition. It is asserted that proper maintenance were carried out by the RC owner, the complainant. It is also confirmed by the commissioner that 150 cubic ft ie. 4 tone of M sand was in the tipper at the time of accident. Hence the other allegations of the appellant having over weight do not find any place in denying the claim of the complainant. At the time of the delivery the terms and conditions of Eicher motor provided 3 year free warranty of engine assembly. Considering the fact we have no hesitation to find that the vehicle is having manufacturing defect and the appellants are liable to rectify the defects free of cost. Hence we find no ground to interfere with the order passed by the Forum Below.
In the result, appeal dismissed and we uphold the order passed by the Forum Below. The order is to comply within 30 days on receipt of the copy of this order.
The office is directed to send a copy of this order to the Forum Below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.550/2014
JUDGMENT DATED 17/12/2015
Sa.