R. Lakshminarasimha Rao, Incharge President The complainant is the appellant in F.A.No.1003 of 2013 whereas the opposite party no.1and2 are the appellants in F.A.No. 981 of 2012. Both appeals are directed against the same order passed by the District Forum. The parties are referred to, as they are referred in the complaint.
The complainant purchased TATA ACE magic vehicle bearing registration number AP 24TV-0854 on hire purchase agreement with the opposite parties no. 3 and 4. The complainant paid an amount of Rs.99,960/- as down payment and availed finance for an amount of Rs.3,02,000/- from the opposite party no.3. The loan amount was repayable in 35 installments @Rs.10,400/- and an amount of Rs.12,090/- for the first installment. The vehicle was delivered to the complainant on 28.11.2011. The complainant got registered the vehicle as contract carriage with registration number AP 24 TV 0854 and obtained permission for contract carriage.
The complainant submitted that he purchased the vehicle on obtaining loan and one week after he purchased the vehicle, he had taken it to the opposite party no.2 with complaint of consumption of heavy diesel and as the problem persisted, he had taken the vehicle to the opposite party no.2 on 27.01.2012 and the opposite party no.2 had sent it to its branch at Vijayawada for the purpose of repairing the vehicle. The respondent submitted that the vehicle is the only source of his income and he had to pay the loan amount and salary to the driver by availing loan.
The first opposite party resisted the claim on the premise of it being not the manufacturer of the vehicle and it denied purchase of the vehicle by the complainant on availing loan. It admitted the problem reported and rectification thereof for the first time and denied handing over the vehicle to it on 27.01.2012. The opposite party submitted that the complainant had sent the vehicle to Vijayawada on 29.02.2012 and as the problem of the vehicle was reported within warranty period, the repairs were undertaken free of cost.
The opposite party no.2 submitted that as there was shortage of stock of ASSY CYL HEAD Wo VALVES it had to get them from Tata Motors Manufacturing Factory, Mumbai and meanwhile the complainant got issued notice dated 14.02.2012 on receipt of which the opposite party no.2 informed the complainant the cause for the delay and the complainant accepting the cause for the delay, admitted for repairing of the vehicle within 15 days therefrom. The opposite party no.2 repaired the vehicle on 29.02.2012 and requested on telephone the complainant to take back the vehicle and the complainant with malafide intention did not turn up to take back the vehicle.
The opposite party no.2 submitted that the complainant got registered the vehicle as contract carriage and as such he is not a consumer and he has not filed any document to show that he has no source of livelihood other than the income on the vehicle. The opposite party no.2 submitted that there is no manufacturing defect in the vehicle and there is no deficiency in service on its part.
The opposite party no.3 contended that the complainant is not a consumer insofar as the claim is concerned against it and it submitted that it has financed the vehicle and as the complainant became chronic defaulter, the opposite party no.3 issued notice informing its intention to repossess the vehicle. The opposite party no.3 submitted that it is not concerned with the transaction between the complainant and the opposite parties no.1 and 2 and it prayed for dismissal of the complaint in view of the complainant not seeking any relief against it.
The opposite party no.4 proceeded exparte.
The complainant in support of his case, filed his affidavit and relied on Exs.A1 to A7 and opposite party Nos. 1 and 2 filed affidavit of its Asst. General Manager and relied on Exs.B1 and B2.
The District Forum allowed the complaint on the premise of the mere fact that the registration of the vehicle as contract carriage does not throw out the complainant from the ambit of consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and it held that had the opposite party no.2 repaired the vehicle on 29.02.2012 it would have issued notice to the complainant seeking him to take back the vehicle. The District Forum directed the opposite party no.1 and 2 to replace the vehicle with a new vehicle and pay a sum of Rs.20,000/- towards compensation with interest @9% p.a. thereon and costs of Rs.2,000/-.
Feeling dissatisfied with the amount awarded as compensation, the complainant has filed appeal for enhancement of compensation from Rs.20,000/- to Rs.50,000/- on the premise of his suffering loss of income in view of manufacturing defect in the vehicle and he sought for allowing the complaint against the opposite parties no.3 and 4 as well.
The opposite parties no.1 and 2 have filed appeal contending that the true manufacturer of the vehicle is M/s TATA Motors Limited was not made a party to the complainant and the appellant being not a manufacturer of the vehicle cannot be directed to replace the vehicle and also pay compensation of Rs.20,000/-. The District Forum has not appreciated the fact that on 02-2-12 the vehicle was sent to Vijayawada by the complainant and on the same day the job card was opined and most of the defective parts were replaced and due to non availability of the stock of Assembly Cylinder Head WO valves which were to be brought from manufacturer i.e. from Mumbai it took some time for repair and hence there was delay in repairing the vehicle and the vehicle was delivered on 29-2-2012 in perfect condition.
Thepoints for consideration are:
i) Whether the complainant is consumer?
ii) Whether the vehicle suffered manufacturing defect?
iii) Whether the respondents rendered deficient service?
iv) To what relief?
POINTS NOs.1 to 3: The opposite parties no.1 and 2 had contended that the complainant had purchased the vehicle for commercial purpose and as such the complaint is not maintainable before the Consumer Forum. The complainant has stated that he availed loan from the opposite party no.3 and 4 for purchase of the vehicle and the income on the vehicle is only source of his livelihood. The opposite parties no.3 and 4 admitted financing for purchase of the vehicle. The District Forum opined that the amount borrowed for the purpose of purchasing the vehicle would weigh when balanced with the fact of registration of the vehicle as contract carriage. The District Forum observed :
œThe demand of OP-1 that the complainant has to prove that he has no other source of income, to get out of the rigour of Section 2(1)(d)(ii) and to withdraw himself from the definition of commercial consumer and that he should have filed proof that he had no other source of income except on the vehicle, amounts to demand a person to establish a negative factor which is impossible and is unknown to the law of evidence. Since it is OP-1 that intends to brand the complainant as a commercial consumer, he has to prove the said assertion. To establish the same, OP-1 merely relies on the fact that the complainant got registered the vehicle as a contract carriage. The complainant may be running the contract carriage for his livelihood. The mere fact that he runs contract carriage cannot ip-so-facto lead to a presumption that he is not a consumer but a commercial consumer. The very fact that he obtained the loan for purchasing a small vehicle would show that he is a man with no finance and his effort is only to procure a small vehicle to run it for his livelihood. Therefore, the complainant is not a commercial consumer, but he is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act? .
The complainant has impleaded the opposite parties no.3 and 4 which are financiers of the vehicle and his statement that his source of income on the vehicle in question is the source of his livelihood coupled with the fact of sanction of loan for purchase of the vehicle by the opposite parties No.3 and 4 would establish the income on the vehicle as the source of livelihood of the complainant. Therefore, the contention of the opposite party no.2 that the complainant is not consumer and the complaint is not sustainable.
The disputes between the parties are in regard to the problems the vehicle TATA ACE MAGIC 7 Seator BS-II posed within one year of its purchase. The complainant purchased the vehicle on 28.11.2011 from the second opposite party. The complainant complained of excess fuel consumption by the vehicle within one week of its purchase and admittedly the second opposite party attended to the problem and handed over the vehicle to the complainant.
The complainant has stated that on 27.01.2012 he had taken the vehicle to the second opposite party which had sent it to its Vijayawada branch for repairing the vehicle whereas the second opposite party submitted that the complainant on his own accord had taken the vehicle to the opposite party no.1. There is no convincing reason for the second opposite party to disown the fact of receiving the vehicle for second time for repairing it and even when the vehicle was taken to it for the first time; the second opposite party had sent the vehicle to its Moosapet workshop as it could not be repaired at its LB Nagar workshop. The statement of the second opposite party that the complainant had taken the vehicle to the opposite party at Vijayawada is incorrect more so in the circumstances where the opposite party no.2 shouldered the responsibility for the delay in getting the vehicle repaired till 29.02.2012.
A perusal of the job card would show that the vehicle covered a distance of 10504 kms.
As the Assay Cyl. Head Valves are covered by the terms of the warranty, the first opposite party replaced them with new Assay Cyl Head Valves. The job card dated 02.02.2012 would show the service carried out and the parts replaced are Cylinder head Assembly valves etc., and the job card was closed on 29-2-2012. The District Forum allowed the complaint opining that though there is no manufacturing defect in the vehicle, the complainant visited the opposite parties for several times for small repairs or general service and lost his time and money and that there might be some problems still persisting in the vehicle which need be addressed by the opposite parties.
It is settled law that the vehicle can be ordered to be replaced only on proof thereof by the purchaser of the vehicle as to the inherent or manufacturing defect. The complainant though contended that there was manufacturing defect in the vehicle, he had not paid much focus on the aspect and did not examine any expert to the effect. As such the relief for replacement of the vehicle cannot be granted.
This Commission in œSri Gopal Auto Sotes Ltd and another vs Sri Neeripelli Veeranna and another? in F.A.No. 313 of 2011 decided on 15.10.2012 and The Managing Director, Hero Honda Motors and another vs Sri B.Srikanth? in F.A.No. 355of 2009 decided on 13.10.2009 dealt with the cases involving similar facts and circumstances.
B.Srikanths (supra) was a case where the motor cycle purchased by the complainant posed repeated problems such as noise while the vehicle is operated in second gear and generation of severe heat in the engine, silencer and brake pedal within 15 minutes of the vehicle put in motion. The service engineer conducted test drive after replacing spindle gear shifter, spring gear shit drum and compound shift stopper etc. It was found that there was no manufacturing defect in the vehicle. It was held:
œEven in the case of manufacturing defect of a vehicle, the vehicle in toto cannot be ordered to be replaced in view of the judgment of the Honble Surpeme Court in Maruti Udyog Ltd., Vs Susheel Kumar Gabtora reported in AIR 2006 SCC 1586 wherein the Supreme Court opined that warranty condition referred only to the replacement of the defective part and not of the car. In another case, the Honble National Commission held in M/s TELCO Ltd., another Vs. M.Moosa, 1986-94 page 1367 (NS) that the section 14(1) of the Consumer Protection Act authorizes the forum to have the defects removed even if there are numerous defects which can be rectified and that it will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects appear which can be rectified or defective part can be replaced.
In view of the aforesaid discussion and in the light of the judgment of the Honble Supreme Court we do not find the respondent entitled to the replacement of motor cycle or refund of its cost?
In œVeerannas case, the complaint was made as regards to low pick up, low battery performance and clutch plate related problems. The job cards were considered as to find out whether inherent defect is found in the vehicle. The cost of the parts not covered by the warranty were held to be borne by the complainant at paragraphs 15 and 16 of the order as follows:
œThe first appellant during the first servicing of the vehicle replaced parts charging Rs.1079/- and waived the amount as goodwill gesture. The warranty terms mentioned in the manual cover certain parts of the vehicle subject to proper use and correct handling of the vehicle with exception to normal wear and tear of the components. The warranty will not apply in the following circumstances:
1. If all free services/paid services/oil top-ups are not availed from the authorized Hero Honda workshops. As per their recommended schedule.
2. If Hero Honda recommended engine oil SAE-10W 30 SJ Grade (JASO MA) is not used.
3. To normal wear and tear components including but not limited to) brake shows, clutch shoes, bulbs, electrical wiring, filter, spark plug, fasteners, shims, washer, oil seals, gaskets, rubber parts, bush rubber bellows, plastic parts breakage and wheel rim for misalignment bend.
4. If additional wheel(s) is are fitted and/or any other modification carried out/accessories fitted other than the ones recommended by Hero Honda
5. If Super Splendor motorcycle has been sued in any competitive events like races or rallies or for any commercial purposes as taxi etc.
6. To any damage on motorcycles painted surface cropping due to industrial pollution or other external factors.
7. For normal phenomenon like noise, vibration, oil seepage etc., which do not affect the performance of the Motorcycle.
8. To any damage caused due to usage of improper oil/grease, non-genuine parts.
9. If any defect crops or repairs needed as a result fo using adulterated fuel.
10. If any maintenance/repairs required due to bad road conditions or misuses of Super Splendor motorcycle.
11. If any defect crops or repairs needed as a result of Super Splendor Motorcycle meeting to some accident.
12. For consumables like oil, grease, gasket etc., to be used during free services and/or warranty repairs..
13. To any part of Super Splendor motorcycle which has been tampered or got repaired at unauthorized outlet.
14. For Super Splendor motorcycle not used in accordance with the guidelines given in the owners manual.
16. In terms of œwarranty? it is mandatory for the first respondent to avail all the free services as per the recommended schedule. Any defect observed in the motorcycle during the period of warranty and the part considered to be the cause of the defect, the second appellants obligation is restricted to repair or replace such part subject to the condition that such defect is not resulted due to improper driving or misuse of the vehicle?
In ?Maruthi Udyog Ltd vs Sushil Kumar Gabgotra? reported in 2006(1) CPC 652 SC, the Honble Supreme Court held that in case of manufacturing defect only the vehicle can be directed to be replaced or refund of the cost of the vehicle can be ordered.
The ratio in the aforementioned decision is squarely applicable to the facts of the case on hand. In the case on hand, the respondent sought for replacement of the motor cycle and the District Forum has found manufacturing defect in the vehicle without there being an iota of evidence pointing out the manufacturing defect in the vehicle in question. The facts of the case in F.A.No. 355 of2009 and F.A.no.313 of 2011 are being similar in nature where the purchaser of the motor cycle could not prove any manufacturing defect in the vehicle, we are inclined to set aside the relief for replacement of the vehicle.
The District Forum ought to have directed the opposite parties no. 1 and 2 to check the vehicle and attend to the problems without charging money from the complainant. The District Forum awarded a sum of Rs.20,000/- towards compensation and interest thereon. This Commission does not find the award of interest justifiable when compensation is granted. Interest awarded as such, is liable to be set aside. The complainant has not shown any reasons or adduced evidence in support of his claim that he is entitled to enhancement of compensation and for allowing the complaint against the opposite parties no.3 and 4 even where no relief is claimed against them. The appeal filed by the complainant, as such is liable to be dismissed.
In the result, the appeal, F.A.No.981/2012 filed by the opposite parties no.1 and 2 is allowed modifying the order of the District Forum. The opposite parties no. 1 and 2 are directed to check the vehicle, TATA ACE MAGIC 7 seator BS-II bearing registration number AP-24tv-0854 of the complainant and pay an amount of Rs.20,000/- to the complainant towards compensation and an amount of Rs.2,000/- towards costs. The appeal, F.A.No.1003/2013 is dismissed. There shall be no separate order as to costs. Time for compliance four weeks.