State Consumer Disputes Redressal Commission
B. Nishar Banu,Sivaganga District. vs M/S. Abt Industries Ltd., Madurai - 18. & ... on 22 October, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A. B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II FA.455/2007 & F.A.486/2007 (Against the order in O.P.340/2004 on the file of DCDRC, Madurai) DATED THIS THE 22th DAY OF OCTOBER 2010 COMMON ORDERF.A.455/2007
B. Nishar Banu, | Appellant / Complainant W/o. I. Babu, | Door No.3-A, Melur Road, | Sivaganga Taluk, | Sivaganga District. | Vs.
1. M/s. ABT Industries Ltd., | Automobile Division, | Madurai - 18. | 1 & 2 Rspds/OPs. |
2. The General Manager, | ABT Industries Ltd., | Coimbatore. | The appellant as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to supply a brand new vehicle to the complainant in lieu of the defective vehicle supplied and of the same model, to pay Rs.5 lakhs for compensation with 12% interest per annum and to pay the cost. The District Forum party allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.17.05.2007 in C.C.340/2004.
This appeal coming before us for hearing finally on 30.09.2010, upon hearing the arguments of the counsels on eitherside and perused the documents, written submissions as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellant/Complainant : M/s.V.Raghavachary, Advocate.
Counsel for the R1 & R2/OPs. :
Mr.P. Ravishankar Rao, Advocate.FA.486/2007
1. M/s. ABT Industries Ltd., | Automobile Division, | Madurai - 18. | Appellants/OPs. |
2. The General Manager, | ABT Industries Ltd., | Coimbatore. | Vs. B. Nishar Banu, | Respondent / Complainant W/o. I. Babu, | Door No.3-A, | Melur Road, | Sivaganga Taluk, | Sivaganga District. | Counsel for the Appellants/OPs. :
Mr.P. Ravishankar Rao, Advocate.
For the ResptComplainant : Served Absent.
This appeal coming before us for hearing finally on 30.09.2010, upon hearing the arguments of the appellant and perused the documents, written submission of the appellant as well as the order of the District Forum, this commission made the following order:
M. THANIKACHALAM J. PRESIDENT
1. The complainant and the opposite parties in O.P.340/2004, on the file of District Consumer Disputes Redressal Forum, Madurai, are the appellants in F.A.455/2007 and F.A.486/2007 respectively.
2. The parties are referred as arrayed in the complaint.
3. The complainant, who is running a School by name Mother Teresa Matriculation School at Sivaganga, had placed an order with the first opposite party for the purchase of new TATA 709 Model of bus chassis on 31.05.2003.
Pursuant to that order, paying a sum of Rs.5,18,689/- availing finance from TATA Finance Ltd., paid the amount and took delivery of the chassis. The Chassis was given to one M/s.M.R.Body Building, who informed that the chassis was not bus chassis, whereas, it is truck chassis only, further informing it may not suit for building a bus. The complainant having no option, requested M/s.M.R.Body Builders, to build a bus body, thereby, spent considerable amount.
When the bus was taken for registration, the Assistant Registering Authority, Madurai refused to issue R.C. on account of change of chassis.
3. The complainant, due to unfair trade practice practiced by opposite parties, unable to run the bus, thereby, she incurred monetary loss as well financial strain, in paying EMI to Tata Finance Ltd., Madurai.
The act of delivering truck chassis, instead of bus chassis clearly amounts to deficiency in service, which is further strengthened from the fact, refund of a sum of Rs.18,169/-. Because of the non-registration of the vehicle, the bus is lying idle in the School compound, causing considerable loss, inflicting mental agony, for which, the opposite parties should be held responsible. Thus, alleging, a complaint came to be filed to supply a brand new vehicle in lieu of the defective vehicle, supplied as well for a sum of Rs.5 lakhs as general damages and compensation with interest.
4. The opposite parties opposed the claim, admitting the sale of chassis, inter alia, contending that the complainant is not a consumer and therefore, the case is not maintainable, that as ordered by the complainant, LMT Cowl Chassis was supplied, which was taken possession without any protest, that if the complainant had really intention of buying bus chassis, at least when it was informed by the body builder, they should have returned the chassis, which they failed and that at any point of time, they have not committed any deficiency in service, thereby, prayed for the dismissal of the complaint, denying other averments also.
5. The District Forum based upon the documents, which disclosed a Truck chassis was sold, as if, bus chassis, came to the conclusion, that there was deficiency in service, as well unfair trade practice and that because of the conduct of the opposite parties, the complainant was unable to get the vehicle registered and run the same, for the purpose of school, thereby, incurred loss also. Thus concluding, a direction came to be issued, against the opposite parties to supply a new bus chassis vehicle, to the complainant, taking back the truck chassis vehicle already supplied, paying a further sum of Rs.18,169/-, till such time, directing to pay interest at 9% per annum on the sale amount of Rs.5,18,689/- from 1.6.2003 till the new chassis is supplied with cost of Rs.3,000/-, as per the order dated 17.05.2007, thereby, giving grievance to both the parties, resulting two appeal as said above.
6. The complainant under Ex.A1, paying a sum of Rs.5,18,689/- purchased a chassis-Cowl Chasssis-Turbo on 31.5.2003. This document itself describes the chassis as truck chassis since we find under the Column Model SFC7009 E -TC. Having purchased a truck chassis, probably knowing also, as revealed by the documents, she left the chassis for bus body building, with M/s.M.R.Body Building. As pleaded in Para 5 of the complaint itself, the complainant was informed that the chassis was not the bus chassis, whereas, it was truck chassis and building a bus body may not be technically suitable. At least immediately after this information, the complainant would have returned the chassis to the opposite parties, requesting them to delivery the bus chassis, really she had intended to purchase a bus chassis, which she failed. Not only that, by spending amount, a bus body was built up in the truck chassis and when the vehicle was taken for registration, the Assistant Registering Authority rightly refused to register the vehicle, as bus, that too considering the fact that it is intended to use for taking the school boys. Thereafter, realizing that the bus cannot be run, accusing the opposite parties, as if, they alone had committed deficiency in service, in not providing bus chassis, though she demanded, they delivered only truck chassis, which should be construed as deficiency. True, if the complainant had intended to purchase bus chassis, placed order, whereas, opposite parties delivered truck chassis, describing as bus chassis, then that should be undoubtedly, construed as negligent, unfair trade practice and deficiency in service also. As revealed by the documents, in our considered opinion, in this case, both the parties are equally guilty, more so, the opposite parties had committed unfair trade practice and in this view, we should endorse the finding of the District Forum.
7. The learned counsel for the opposite parties would contend that the complainant had placed an order only for truck chassis the same was delivered and because of the same alone, excess amount collected also, returned to the TATA Finance Company, thereby, they have not committed any unfair trade practice or deficiency in service, which is opposed.
8. As indicated above, Ex.A1 says, TC probably truck chassis. It is not the case of the opposite parties "Cowl Chassis and Turbo" is classified as bus chassis. Thus, it is made clear, that only a truck chassis was given to the complainant, instead of bus chassis. The intending purchase, by the complainant was to run school bus and therefore, we can say safely to some extent, she should have ordered only the bus chassis, which can be seen from other documents also. Ex.A4 is Form-21 issued by the first opposite party dated 31.5.2003, wherein, the class of vehicle is mentioned as "MMV.G.V.(Bus Chassis)", thereby, showing that they have sold only the bus chassis, which is not the case in Ex.A1. In Ex.A5 also, the opposite parties have mentioned while addressing the complainant, that they have supplied bus chassis, which reads "Our Supply of one No.TATA SFC-709/38 Bus Chassis". Since the amount collected by them was in excess, because of the fact, truck chassis was supplied, they have refunded a sum of Rs.18,169/- to TATA Finance Ltd., since they have financed for the vehicle. Admittedly also, when the vehicle was taken for registration after body building the authority concerned refused to register the vehicle, since a bus body was built up over Truck chassis. Thus, the document issued by the opposite parties itself, established without any shade of doubt that the opposite parties having supplied truck chassis, labeling or naming the same as bus chassis, should be construed as unfair trade practice, leading to deficiency in service also.
Because of this fact, the complainant was unable to run the vehicle. The District Forum, taking into account, the above proved fact, as rightly directed the opposite parties, to supply a new bus chassis, taking back the old truck chassis, in which finding, we are unable to find any error, warranting our interference. When this proved fact was pointed out, which cannot be assailed, the learned counsel for the opposite parties, very fairly conceded, that they are willing to supply new bus chassis, provided the old chassis namely truck chassis is returned to them, in which claim, we cannot find fault, which is the order of the District Forum also.
8. The original price for the chassis was Rs.5,18,689/-. After realizing the cost difference between the bus chassis and truck chassis, admittedly, a sum of Rs.18,169/- was returned, to the financier from whom the complainant availed financial assistance.
Therefore, a direction has been issued, by the District Forum that the complainant should pay a sum of Rs.18,169/- being the difference in the then price, to the opposite parties, in which conclusion also, we cannot find any error.
9. Admittedly, because of the non-registration of the vehicle, it was not utilized, thereby, depriving monetary benefit also. Further, the complainant should pay interest, EMI to the financier. This would have been avoided, if the complainant was diligent, when M/s.M.R. Body Building had informed to the complainant that the truck chassis will not suit for building a bus, due to technical and engineering reasons. Ignoring the said advise, probably considering the less cost, under false hope that the bus built over truck chassis, can be registered, the complainant also committed deficiency or mistake and taking into account, though not said so, the District Forum directed the opposite parties, to pay interest at 9% per annum, on the sale amount of Rs.5,18,689/- from 01.06.2003 till the new chassis is supplied. In this approach of the District Forum, we are unable to find any error but while concluding the amount, we feel, the District Forum had committed an error, which should be rectified. Even as admitted in Para 7, which is proved by the document also, on 25.7.2003, a sum of Rs.18,169/- was refunded, which amount should be deducted, from the total sale price and for the balance alone, the complainant is entitled to claim interest. As seen from Ex.A1, the total considerable of chassis was Rs.5,18,689/- If the above said amount is deducted, the price of chassis would be Rs.5,00,520/-. For this amount alone, the complainant, is entitled to interest not more than that and accordingly the order of the District Forum is to be modified.
10. The learned counsel for the appellant though filed an appeal, questioning the order of the District Forum, by going through the memorandum of appeal grounds, we are unable to say positively, what is the relief sought for?
For the deficiency committed, in order to rectify the same, an appropriate direction has been issued. The first prayer itself reads "to supply a brand new vehicle in lieu of the defective vehicle supplied" means, the complainant should return the defective vehicle supplied, than they are entitled to a new bus chassis, which stands to reason also to accept. The complainant cannot retain the truck chassis, and at the same time, for the same money, she cannot claim a bus chassis also, as contended in ground 3 of the appeal memorandum. When the complainant was granted interest or in other words or when the opposite parties are directed to pay interest for the sale price, that will compensate the compensation and there cannot be extra compensation, as claimed in the complaint, estimating at Rs.5 lakhs without any basis. As pointed out by us supra, for the loss or mental agony if any suffered by the complainant, she is also equally responsible and such a person is not entitled to claim, exorbitant compensation by filing this appeal, without any merit.
Hence, we find no merit in the appeal preferred by the complainant, namely in F.A.455/2007.
F.A.455/200711. In the result, the appeal is dismissed. No cost.
F.A.486/200712. In the result, the appeal is allowed in part, modifying the order of the District Forum, directing the opposite parties, to pay interest as ordered by the District Forum, for Rs.5,00,520/- instead of Rs.5,18,689/-. Time for return of the truck chassis and for supply of new bus chassis, is fixed as four months. If the complainant fails to return the truck chassis and take new bus chassis, as agreed before us, the interest ordered shall seize to run from the date of default and it is clarified, in that case, the opposite parties are liable to pay interest only upto the time fixed, then without further interest, new Bus chassis can be delivered, as and when old truck chassis returned, as ordered. No order as to cost in this appeal.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Motors/fm