Oral Order: (S. Bhujanga Rao, Member)
This appeal arose out of the order dt.02.11.2012 of the Dist. Consumer Forum at Tirupati made in C.C.No.76/2011 filed by the appellant alleging deficiency in service on the part of the respondents/opp.parties for selling defective vehicle to the complainant and also failed to do service in time.
The appellant is the complainant and the respondents are the opp.parties in C.C.No.76/2011. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is that on 07.09.2009, the complainant approached the opp.party no.1, who is the dealer of opposite party no.2, to purchase a four wheeler. The opposite party issued brochure containing salient features of the vehicle GAMA Classic DT and quotation, to the complainant. The complainants bankers State Bank of Hyderabad, Hyderabad branch sanctioned loan to the complainant, for purchase of the vehicle and the payments were made by his bankers directly to opposite party no.1. The complainant got issued legal notice on 07.11.2009 to opposite parties 1 and 2 with complaints and manufacturing defects of the vehicle, for which opposite party no.1 replied with vague and reckless answers. The opposite party no.1 refused to refund the money of Rs.7,61,900/- spent towards the purchase of the vehicle, as required by the complainant.
Subsequently, the complainant took delivery of the vehicle on 15.12.2009 and collected Rs.5000/- from the complainant towards insurance, treating the vehicle as commercial category, instead of personal one. There is patent difference in mentioning the horse power from that of the brochure and also there is absence of Turbo Inter Cooler as specified in the brochure. After taking delivery of the vehicle, the complainant noticed that there is failure of brakes, vibration, wobbling and skidding of the vehicle and the same was complained to opposite parties 1 and 2 on 25.7.2010. On 25.10.2010, the brake lever of the vehicle was broken on the road , while it was in operation. The vehicle was not worth to run on the road. Opp.party no.5 refused to attend the vehicle service on 26.5.2011 when the complainant approached him with the vehicle. There are several defects in the vehicle, which are mentioned in the complaint. The old vehicle sold by opposite party no.1 is totally defective and dangerous and not worth running on the road safely.
The complainant has undergone mental torture, fear of danger to his life and frequent problems like repairs to vehicle. Three years warranty period for the vehicle is still subsisting. Hence the complainant filed the complaint seeking for return of the vehicle cost in addition to the damages towards his mental agony, Rs.19 lakhs in total, from the opp.parties 1 and 2.
Resisting the complaint, the opposite party no.1 dealer filed written version denying the material allegations made in the complaint and contended that the complainant purchased the vehicle, from them for commercial purpose only. Hence the complainant does not come under the purview of the Consumer as defined in Sec.2(1)(d) of the Consumer Protection Act,1986. Opposite parties 1 and 5 are the authorised dealers of opposite party no.2 manufacturing company. The dealers are independent entities and they manage the sale and after sale services. The relationship between the manufacturer and dealer is on a principal to principal basis, i.e. dealings between the company and the dealer are not that of principal and agent. The vehicle does not have any manufacturing defect and large number of vehicles are sold through out India and performing satisfactorily. Therefore, the complaint is liable to be dismissed with costs.
Opposite party no.2 filed separate written version denying all the material allegations made in the complaint and contended that the complainant is not a Consumer within the meaning of the Act. There is no privity of contract between this opposite party and the complainant. The vehicle was delivered in good condition to the complainant, at the time of purchase, without any manufacturing defects. The problems alleged are due to lack of proper maintenance of the vehicle and improper driving habits, rough road conditions, use of adulterated or impure quality of oil and fuel etc. This opposite party cannot be held responsible for the alleged problems. The complainant failed to avail all free services which are mandatory for proper maintenance of the vehicle, due to his failure the alleged problems might have resulted. The vehicle does not have any manufacturing defects. The complaint is therefore liable to be dismissed.
Opp.party no.4 filed his written version contending that after scrutiny of the application and collecting required fee, the file was referred to the Motor Vehicle Inspector to get the vehicle inspected. After thorough verification of the particulars like Engine number, chassis number mentioned in Forms 20 and 21 issued by the dealer, as they tallied, the Motor Vehicles Inspector certified for its registration. Accordingly, the vehicle was registered with registration no.AP 28 CD 3549. The complaint is liable to be dismissed against this opposite party as it is devoid of merits.
The opposite party no.5 filed separate written version contending that this opposite party is an authorised dealer for Force Motors, who manufactures the motors under the name and style of opposite party no.2. This opposite party is not a necessary party to the complaint. The defects mentioned in the complaint are not manufacturing defects, since the complainant had checked the vehicle prior to his purchase and after thorough verification only, the complainant purchased the vehicle. This opposite party has not committed any deficiency in service against the complainant. The complaint is therefore liable to be dismissed against this opp.party.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A11. On behalf of opposite party no.2 evidence affidavit was filed and Exs.B1 to B5 were marked. The report of the expert was marked as Ex.A12.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaint in part directing the opposite parties 2 and 5 to pay a sum of Rs.10,000/- towards compensation for deficiency in service . The complaint against opp.parties 3 and 4 is dismissed as frivolous with costs of Rs.2,000/- each. The complaint against opposite party no.1 is also dismissed.
Aggrieved by the said order, the complainant filed the above appeal questioning the validity and the legality of the order of the District Forum urging several grounds.
We heard the counsel for both the parties and perused the entire material on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
Opposite party nos.1 and 5 are the dealers and opposite party no.2 is the manufacturer of Force Motors. The complainant purchased the subject vehicle from opposite party no.1. These facts are not in dispute.
Opposite party no.3 is an Automotive Research Association of India (ARAI) and is a Central Government approved agency. Nothing is alleged against opposite party no.3 in the complaint. Absolutely, opposite party no.3 has no connection with the present dispute. Opposite party no.4 is a registering authority of Hyderabad wherein the subject vehicle was registered as A.P. 28 CD 3549, after verification of engine number and chassis number etc. but registering authority has no power to cancel the licence of the dealer as alleged by the complainant. Infact, the Consumer Fora have no jurisdiction to direct any authority to cancel the licence of the dealer, under the provisions of the Consumer Protection Act. Under these circumstances, in our considered view the opposite parties 3 and 4 are not necessary and proper parties to the complaint. The District Forum therefore rightly dismissed the complaint against opposite party nos.3 and 4. We do not wish to interfere with the said order.
The contention of the complainant is that he approached opposite party no.1 to purchase a four wheeler and opposite party no.1 have furnished one brochure containing the salient features of the vehicle Gama Classic DT and quotation. He agreed to purchase the same and obtained bank loan. But there was delay in delivering the vehicle. At the instance of the complainant, finally, the opposite party no.1 delivered a sub standard vehicle and he was forced to take the sub-standard vehicle. The opposite parties 1 and 2 admitted that the complainant purchased Gama vehicle on 15.12.2009 and took delivery of the same. If it is a sub standard vehicle, nothing prevented the complainant to refuse to take delivery of the vehicle. There is no reason as to why the complainant kept quiet without taking any action against the opposite parties 1 and 2 till the date of filing of the complaint i.e. 21.11.2011. Therefore, we do not find any irregularity and illegality in the observation made by the District Forum that having purchased the sub standard vehicle and having took delivery of the same, and having used it for some years, the complainant cannot be permitted to contend that a sub standard vehicle was delivered to him and he was forced to receive the same.
The main contention of the complainant is that after taking delivery of the vehicle, complainant noticed that there is failure of brakes, vibration, wobbling and skidding of the vehicle, that the brake level of the vehicle was broken on the road while it was in operation. The complainant has mentioned the complaints regarding the vehicle in his complaint, which are as follows:
1. Power steering “hard
2. Air conditioning “ expose to engine heat
3. Seat Belts “ no seat belts for 2nd row
4. Parking brake “congested space
5. A.C.Blower-fitted causing inconvenience to the cabin seater
6. Colour peeling- all over the body
7. Door handle “difficult to open
8. Brake lever-prone to breaking on the road several times.
9. Diesel Tank Hose Pipe “frequently leakages
10. Wiper blades “ do not wipe rain water
11. Air bags “ no air bags at all in the vehicle and
12. Proper breaking system “ wobbling and skidding.
The opposite parties 1, 2 and 5 denied the above case of the complainant and contended that from the record maintained by them, it is clear that the complainant has used the said vehicle continually and failed to avail all free services, which are mandatory for proper maintenance of the vehicle. The failure on the part of the complainant, to avail such mandatory free services, might have resulted in the alleged problems. Further, as per Clause no.13 of the terms and conditions of the warranty, the warranty claim will not be entertained, in case of failure to avail free services. Thus the complainant has forfeited the warranty of the said vehicle, due to his own failure to avail free services. They further contended that whenever the complainant brought his vehicle, the opposite party no.2 through their dealers have attended the said vehicle and provided services, and even replaced parts as a gesture of good will. Thus there is no deficiency in service on the part of the opposite parties.
In view of the contentions of both the parties, the burden lies on the complainant to prove that by the date of delivery of the vehicle, the above said defects were in existence and that these defects could be due to manufacturing defects. To substantiate his case, the complainant got the vehicle examined by Dr.G.Bhanodaya Reddy, Asst. Professor, Dept. of Mechanical Engineering, College of Engineering, S.V.University. The said expert examined the vehicle and issued a report on 11.7.2012, which is marked as Ex.A12. In the said report, the expert has given his opinion with regard to 15 points. Point nos.1 to 12 are identical to point nos.1 to 12 mentioned in the complaint.
As could be seen from Ex.A12, the expert opined that the performance of the power steering is satisfactory, excepting some sort of humming noise at two (left and right) extreme ends, i.e. when steering wheel is rotated completely to any one side. He opined that the said problem is not a serious problem. According to the expert, the performance of air conditioning is satisfactory. He found that the seat belts are provided for the front seats, but not for the rear seats. The contention of the opposite parties is that seat belts are not mandatory for the second row of the seats, of the category of the subject vehicle. The complainant has not placed any evidence to show that the seat belts are mandatory for the second row of seats. Therefore, the complainant has no right to demand the opposite parties 1 and 2, to provide seat belts for the second row of the seats of the vehicle.
Regarding parking brake, the expert observed and opined that location of parking brake is such that it is little inconvenient to reach (approach) and it is not effective i.e. the vehicle was moving on a slant road, even after the parking brake is applied. This defect in our considered opinion to be attended by the opposite parties 1 and 2. Regarding A.C. blower, the expert opined that the location of A.C. blower under a dash board is not inconvenient to passenger and does not need serious concern. The expert found pealing of the colour at one location spread over an area of approximately 4 sq.c.mts.(four square centi meters) and rust formation on the body at few locations. The Expert observed that the door handle of the drivers door is broken and opening the door from outside is not possible.
Regarding brake lever, the expert opined that the present condition of the brake lever is satisfactory. Regarding diesel tank hose pipe, the expert observed that the hose pipe through which fuel is supplied to the fuel tank (while filling fuel in petrol bunk) was broken (got cut). As a result, probably during fuel filling, fuel might have spilled out and lot of black colour dust was accumulated near fuel tank. Regarding wiper blades, the expert observed that the wiper blade liner have gone hard and on creating noise during application and also that their performance is pure as they are not wiping out water from the windshield (glass) surface. The expert observed that air bags are not provided and the performance of brake was satisfactory from the vehicle point of view ( i.e. vehicle stopping without wheel skidding),but the vehicle is pulling to right side when brake is applied which is slightly serious an issue. With regard to points 12, 13 and 15, the expert observed in the negative.
It is an admitted fact that the complainant purchased the vehicle and obtained the delivery of the same on 15.12.2009 and since then the complainant had been using the same , that is, the complainant used the vehicle for nearly two years. It is the contention of the opp.parties that the complainant failed to avail all free services, which are mandatory for proper maintenance of the vehicle and due to his failure, the alleged problems might have resulted. The complainant has not denied the above contention of the opposite parties. He did not place any evidence on record to disprove the above contention of the complainant.
Under these circumstances, we are of the view that problems like leakages of hose pipe, pealing of colour, hardening of the wiper blades are common. Having regard to the defects noticed by the expert professor while examining the vehicle, we are of the view that there are no manufacturing defects in the vehicle. Infact the complainant failed to prove that there are manufacturing defects in the vehicle. However, there are some mechanical defects, which can be rectified. As could be seen from the impugned order, the District Forum has considered all the aspects of the case and passed the impugned order. We do not find any illegality and irregularity in the order passed by the District. Hence the appeal fails.
In the result, the appeal is dismissed confirming the impugned order of the District Forum. However, in the circumstances of the case there shall be no order as to costs.