Full Judgment
SHRI. M.V. VISWANATHAN: JUDICIAL MEMBER
The appellant herein was the complainant and respondents were the opposite parties in CC No. 78/2006 on the file of CDRF, Wayanad, Kalpetta. The above complaint was filed alleging deficiency of service on the part of the opposite parties in supplying a vehicle chasis with manufacturing defects. The opposite parties entered appearance before the Forum below and filed written version denying the alleged deficiency of service. They contended that the warranty for the vehicle was provided by the manufacturer of the vehicle and that the complaint filed without impleading the manufacturer as a party is bad for non-jointer of necessary parties. They also denied the case of the complainant regarding manufacturing defect. Thus, the opposite parties prayed for dismissal of the complaint.
2. Before the Forum below, the complainant was examined as PW1 and Manager of the Financier of the vehicle was examined as PW2. The expert Commissioner who examined the vehicle and submitted C1 Commission report was examined as CW1. The Manager of the first opposite party was examined as OPW1. No documentary evidence was adduced from the side of the opposite parties. On an appreciation of evidence on record, the Forum below dismissed the complaint by finding that there was no deficiency in service on the part of the opposite parties. Aggrieved by the said order dated 31st March 2009 passed by CDRF, Wayanad in CC No. 78/2006, the present appeal is preferred.
3. We heard both sides. The learned Counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on C1 Commission report and the oral testimony of CW1, the Expert Commissioner. He pointed out the hydraulic jack provided for the disputed vehicle and submitted that instead of wipro jack the opposite parties supplied the vehicle fitted with an expro jack. On the other hand, the learned Counsel for the respondents/opposite parties supported the impugned order passed by the Forum below and submitted that the complaint was filed after the lapse of one year and the expert examined the vehicle at a time when the vehicle had covered a distance of 93990 km. He further submitted that no complaint was preferred by the complainant till the issuance of the lawyer notice on 19-11-2005. Further, submitted that there is nothing on record to substantiate the case of the appellant/complainant regarding manufacturing defect. Thus, the respondents prayed for dismissal of the present appeal.
4. The appellant/complainant purchased the vehicle with chasis No. V 6262 from the first opposite party through the second opposite party on 30-03-2005. The complaint in CC No. 78/2006 was filed on 10-03-2006. ie after the lapse of one year from the date of purchase of the vehicle chasis. The appellant/complainant has got grievance with respect to the construction of the body of the said chasis. Admittedly, the aforesaid body was built by one Kalpaka Body Builders, Malappuram. There is nothing on record to show that the respondents/opposite parties had any role in the construction of body for the said vehicle. The complainant could not adduce any reliable evidence to fasten liability or responsibility on the respondents/ opposite parties with respect to the construction of body for the said vehicle chasis. Thus, the allegation regarding the defects in the bodybuilding cannot be attributed against the respondents/opposite parties.
5. The appellant/complainant has got a case that the vehicle chasis was having manufacturing defects. The complainant has also got an expert report. The Assistant Motor Vehicle Inspector, Kalpetta was deputed as the expert who conducted the inspection of the vehicle on 21-12-2007. In C1 Commission report it is specified that at the time of his inspection the vehicle had covered a distance of 93990 km. The expert was examined before the Forum below as CW1. On an appraisal of the testimony of CW1 with his C1 Commission report would not give any indication regarding manufacturing defects. The expert Commissioner has categorically reported that the material used for the disputed vehicle was the same material used for other vehicles of the same type. The expert was not in a position to test the quality of the material used for the platform. But, there is nothing in C1 report to show that the chasis was built with inferior quality materials. The expert has also reported about the careless use of the vehicle and the damage caused to the vehicle by the aforesaid careless use. He has also reported that cracks could be seen welded at two places and there was another crack near the hinges of the tipping body and the same was also welded and repaired. But, it is not reported that those cracks were developed due to any manufacturing defect. Thus, in effect C1 report would not support the case of the appellant/complainant that there was manufacturing defect in the vehicle chasis. So, the Forum below is perfectly justified in holding that there was no deficiency of service on the part of the opposite parties.
6. The appellant/complainant failed to produce the warranty for the said vehicle. There is no whisper in the complaint regarding the warranty period for the vehicle. On the other hand, the first opposite party dealer of the vehicle would contend that there was no such warranty for the vehicle and what was guaranteed was only free service for the first year or 52000 km whichever is earlier. Thus, the complainant has also failed to prove the warranty for the disputed vehicle chasis which was supplied by the opposite parties. It is also to be noted that the manufacturer of the vehicle Swaraj Mazda has not been impleaded in this case. It is for the manufacturer to answer the alleged manufacturing defect. But, the complainant was not prepared to implead the manufacturer of the vehicle. Thus, the complaint in CC No. 78/2006 was also bad for non-joinder of necessary party namely, the manufacturer of the vehicle chasis.
7. The appellant/complainant has got a case that the opposite parties failed to provide hydraulic jack of the tipper manufactured by Wipro. But instead of wipro hydraulic jack the opposite parties supplied âExpro make hydraulic jack for the vehicle chases. A11 invoice issued by the opposite parties would show that the appellant/complainant was entitled to get wipro make hydraulic jack for the tipper. Thus, the failure to provide wipro jack would amount to deficiency of service. It is to be noted that it is for the manufacturer to supply wipro hydraulic jack and the said failure can be a deficiency of service on the part of the manufacturer. Moreover, the appellant/complainant had no complaint regarding the hydraulic jack provided for the tipper till he issued A2 lawyer notice in November 2005. It is further to be noted that the hydraulic jack of the tipper was found working smoothly. In Ext.C1 report, it is reported that the hydraulic jack of the tipper is âexpro make and is working smoothly at the time of inspection. The appellant/complainant has got a case that the hydraulic jack will not be working smoothly when the tipper is loaded with goods. But the expert was not asked to get the working of the hydraulic jack tested by loading goods. Thus, the available material would show that the hydraulic jack provided for the tipper has been working smoothly and without any complaint. The appellant/complainant has not adduced any evidence to show that the cost of the expro make hydraulic jack is lower than that of the wipro make hydraulic jack. The appellant could not adduce any evidence regarding the price difference or the actual loss suffered by him. Thus in all respects, it can be held that there was no deficiency of service on the part of the opposite parties who are the dealers of the vehicle.
8. There is no acceptable evidence on record to show that the respondents/opposite parties failed to render services to the complainant while the vehicle was produced for effecting service. There is also nothing on record to show that service charge was collected from the complainant for the free services. Thus, in effect the respondents/opposite parties rendered effective services being the dealers and service center of the manufacturer. The Forum below is justified in passing the impugned order by holding that there was no deficiency in service on the part of the opposite parties. The present appeal deserves, nothing but dismissal.
In the result, the appeal is dismissed. The impugned order passed by the Forum below is confirmed. There will be no order as to cost.