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Aboobacker v/s M/s. Savari Automobiles, East Nadakkavu, Eranhipalam & Another

    Appeal.No. 137 of 2015

    Decided On, 03 October 2017

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN
    By, PRESIDENT & THE HONOURABLE MR. V.V. JOSE
    By, MEMBER

    For the Appellant: P.C. Padmaja, Advocate. For the Respondents: ----------



Judgment Text

S.S. Satheesachandran: President

Complainant is the appellant. His complaint claiming compensation for deficiency of service, financial loss and mental agony against the opposite parties, two In number, after enquiry, was dismissed by the District Forum, Kozhikode. Aggrieved he has filed this appeal.

2. Complainant purchased a Bajaj Tempo four wheeler pick up van manufactured in the year 2007 by the second opposite party, hereinafter referred to as the manufacturer, through its dealer, the first opposite party. According to him, purchase was made paying Rs14504/- in cash directly and Rs.two lakhs availing a loan from Muthoot Leasing and Financial Limited. He purchased the vehicle for his livelihood, but could not ply it more than 500 to 750 kms because of inherent manufacturing defects. Vehicle used to stop all of a sudden causing lot of inconvenience and financial loss and he had to unload the goods and provide alternate vehicle for transportation of goods. Complainant took the vehicle to service centre operated by first opposite party on many occasions to carry out the repair works. Still complainant was unable to ply the vehicle atleast for a day since the engine oil clotted and even the steering box was damaged because of poor quality of materials used for manufacturing the vehicle. The first opposite party had expressed his inability to cure the defects as it was a manufacturing defect noticed in vehicles of that type. Complainant on the allegations as aforesaid alleging that he has suffered huge financial loss claimed Rs.50000/- as compensation, Rs.240540/- towards cost of vehicle, Rs.1,00,000/- for mental agony and Rs.1,00,000/- for loss of earning.

3. Second opposite party/manufacturer alone filed a version disputing the claims of the complainant. There was no principal-agent relationship between second opposite party and first opposite party, the vehicle sold to the complainant was in good condition without having any manufacturing defects, complaints alleged by complainant could be due to several other reasons beyond the control of manufacturer or dealer, and no claim was made within the warranty period, were the objections of this opposite party.

4. The evidence consisted of PW.1 and A1 to A3 for the complainant and RW1 and B1 for second opposite party. Expert Commissioner who carried out inspection of the vehicle was examined as CW.1 and his report was marked as C1. The Forum after hearing both sides and appreciating the materials on record concluding that there was no deficiency on the part of second opposite party, dismissed the complaint, and hence this appeal by the complainant.

5. We heard the counsel of both sides and perused the records of the case.

6. We are surprised to note that the Forum was totally misguided in appreciating the facts and circumstances involved in the case with reference to the materials produced by both sides. The Forum has proceeded as if the first opposite party even after substitution of service through publication remained absent and was set exparte. Perusal of the records and order sheet of the Forum would disclose that order declaring first opposite party as exparte was set aside and he did contest the proceedings, but without filing a version. The Forum has found fault with the complainant for nonproducing receipts to show that he had paid total value of the vehicle. True he had produced only three receipts for lesser sums but not for the whole value of the vehicle. Nobody disputed his claim over his payment of full price for the vehicle purchased and infact it was not a matter in issue at all. His availing of financial loan and what was the amount financed to him also were of inconsequence of value. But the Forum viewed it as serious lacuna in accepting his case though no challenge thereof was canvassed by the contesting second opposite party. In evidence the expert commissioner (CW.1) has stated that the meter gage of the vehicle showed that it had covered more than 15000 kms, and, if it had covered 15000 kms without any interruption, according to the Forum, then the manufacturer could not be blamed holding there was manufacturing defect. Perusing the evidence of CW.1 we notice that CW.1 had not stated that the vehicle had covered 15000 kms. Even assuming that he had stated so it could not lead to an inference that such coverage was without interruption. What we notice is that when the complainant was examined, he was confronted during cross examination by second opposite party with an inspection report. Ext.B1, allegedly based on service provided to his vehicle, which indicated that the meter gage showed coverage of 15710 kms. The forum has also found fault with the complainant for keeping the vehicle idle for more than one year, without appreciating the facts established why he was constrained to keep it idle due to its manufacturing defects. In short there was total misappreciation of the facts and circumstances and evidence of the case by the Forum and it has resulted in passing of a wrong order negativing the claims of complainant.

7. What has been established from the evidence of the case and, infact, unequivocally conceded by the opposite parties is that the vehicle within the warranty period had six free services. Complainant could avail only 3 such free services. Service centre operated by the first opposite party was closed and no alternate service centre was provided he could not avail the remaining three free services. According to the complainant, he was forced to keep the vehicle idle due to its defects and absence of facility of a service centre to get it repaired. OPW.1, Manager of the second opposite party, has given evidence that after closing of service centre of first opposite party, its dealer, the manufacturer had entrusted service to another centre in Calicut. Complainant’s vehicle was provided only three out of six free services is not disputed. No documentary evidence was produced as to when services attended previously by the first opposite party was entrusted to a different centre. This witness had also admitted that 8 or 9 cases were pending before the Forum alleging manufacturing defects of vehicle of the same type purchased by the complainant. When he was questioned whether he had informed the complainant the change of service centre he would state that a board showing change was placed in the dealer’s shop and that an advertisement was also published in newspapers. No documentary evidence in support thereof was produced. This witness conceded that internal problems of first opposite party had led to change of its service centre to another firm.. Second opposite party had a quality control section and only after inspection and verification the vehicle was sold is the version of this witness to contend that the vehicle had no manufacturing defects. Ext.B1, allegedly, inspection report of vehicle prepared on service records, was not exhibited through this witness. He did not also refer that document in his evidence. Ext.P1 is stated to be a vehicle history affixed with seal of second opposite party and it refers to some service coupon details. Total kilometer coverage of the vehicle as per service coupon details after three services is shown to be 8154. There is nothing on record to show that the vehicle of complainant had covered 15000 kms as was assumed by the Forum erroneously without appreciating the evidence of the expert CW.1 and his answers to suggestive questions in his cross examination. It has been clearly established that the complainant was denied opportunity to have three free services for the vehicle out of the six free services guaranteed under the warranty, and he could not carry out the repairs of his vehicle due to the fault of manufacturer in not providing a service centre on closing of the previous service centre of the first opposite party. In such circumstances whether or not the vehicle had manufacturing in defects, it is crystal clear there was deficiency of service on the part of the manufacturer and the dealer in providing services to the vehicle as agreed to and undertaken in the warranty issued to the vehicle.

8. Vehicle was kept idle for nearly one year cannot be given too much significance in the given facts of the case where it is proved that no service centre was provided on closing of the service centre operated by the first opposite party. Nodoubt the defects of the vehicle might have multiplied when it was kept idle and stationary. A new service centre was provided in Calicut nearly one year after the closing of the service centre of the first opposite party as per Ext.C1 report. In fact as already indicated, second opposite party has not produced any material as to when a new service centre was opened after closing of the service centre operated by the first opposite party. First opposite party has not even filed a version to contest the claim of the applicant, leave alone explaining when it had closed its service centre and reasons, if any, for non providing of the remaining free services during warranty period to the complainant. Both opposite parties in the proved facts of the case ware culpable for deficiency of service and thus liable to compensate the applicant for the loss suffered by him.

9. The vehicle of the applicant was totally damaged after it was kept idle and stationary for one year as seen from Ext.C1 report. Case of the complainant that the vehicle had manufacturing defects has to be accepted when the opposite parties have not produced the service records other than Ext.B1 vehicle history. All free services guaranteed were not provided to the complainant’s vehicle and evidence would also show that other complaints over which for similar type were also pending before the forum alleging manufacturing defects.. Totality of the facts and circumstances presented as borne out by the evidence would prove that the vehicle purchased by the applicant had manufacturing defects and it got aggrevated due t

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o non-providing of proper services guaranteed by closing of the service centre of the first opposite party. 10. Complainant had carried out 3 free services over a period of time would indicate that the vehicle was plyng with whatever defects during such period. Ext.C1 report showed that the reading of the audometer was 15710 kms and in the absence of any other material we have to conclude that the vehicle had been in use and covered such period. Compensation payable to the applicant has to be determined taking into account the above aspects as well. 11. Reversing the Order of the forum dismissing the complaint we award the complainant compensation of Rs.one lakh realisable jointly and severally from the respondents for deficiency of service, financial loss and mental agony suffered by him with interest at 8% per annum from date of complaint till realization. Respondents are also liable to pay jointly and severally cost of Rs.25000/- to the complainant. Respondents to pay the sum within one month from the date of this judgment. Appeal is partly allowed as indicated above.
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