Ramkrishna Vs. M/S. Kailash Agencies Private Limited and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1148476
CourtMaharashtra State Consumer Disputes Redressal Commission SCDRC Aurangabad
Decided OnFeb-10-2014
Case NumberFirst Appeal No. 1243 of 2008 In Complaint Case No. 197 of 2006
JudgeTHE HONOURABLE MR. S.M. SHEMBOLE, PRESIDING JUDICIAL MEMBER & THE HONOURABLE MR. K.B. GAWALI, MEMBER
AppellantRamkrishna
RespondentM/S. Kailash Agencies Private Limited and Others
Excerpt:
k.b. gawali, member: 1. this appeal is filed by the original complainant against the judgment and order dated 31.12.2007 passed by the district forum, aurangabad in consumer complaint no.197/2006, whereby the complaint came to be dismissed. the respondents are the original opponents. for better understanding appellant is hereinafter termed as the œcomplainant? whereas, the respondent no.1 which is a dealer of the eicher motors is hereinafter termed as the œdealer? and respondent no.2 which is a manufacturing company of eicher motors is hereinafter termed as œopponent manufacturing company? and respondent no.3 which is a finance company is hereinafter termed as œopponent finance company?. 2. the factual aspects of this case in a nutshell are that, the complainant had purchased eicher motors from the opponent dealer as manufactured by opponent manufacturing company as on 22.12.2004 and the same was registered having registration no.mh.20.a.a.9250. it was submitted that for purchasing this eicher truck a loan of rs.6,00,000/- was availed from the opponent finance company. it was further contended that the said truck was purchased for earning the livelihood of his family. it is the case of the complainant that since the day the said truck was purchased it had a problem of over eating and the same was brought to the notice of the general manager shri. jain of the opponent dealer. he had accordingly assured that at the time of servicing the problem of over eating would be removed. that, due to the over eating there were other problems associated with it i.e. excess consumption of fuel and less average etc. he further contended that although the said truck was given for repairs the problem of overeating was not removed. that, despite repeated repairs of the vehicle in question the problem of overeating associated with other problems was persisted. that, on 16.07.2005 when the vehicle was taken for servicing with opponent dealer, the companies representative i.e. service engineer namely shri. g. mahesh was also present and after repairs of the said vehicle under his supervision he assured that the problem of overeating would not be there. but the said problem was not removed. he therefore contended that, since the purchase of the vehicle due to defects, he could not make business from the vehicle till the date of filing of complaint i.e. almost fifteen months and hence he had to pay the installments of loan for the said period amounting to rs.2,56,335/- from other sources. thus alleging that by selling said defective vehicle to him, the opponent dealer as well as the opponent manufacturing company have committed deficiency in service and filed the consumer complaint before the district forum seeking directions against them to refund him cost of the vehicle i.e. rs.7,33,379/- and the compensation towards loss of his business i.e. rs.2,56,335/-, total being of rs.9,09,114/- along with interest @ 12% p.a. etc. 3. the opponent dealer as well as manufacturing company appeared before the forum and contested the claim. it was contended that the complaint filed by the complainant was false and baseless. it was denied that there was any defect of overeating as well as loading capacity or average with the vehicle. it was contended that free service of the vehicle was done regularly and no such defect was found. it was alleged that due to adulterated diesel used by the complainant the average running of the said vehicle could have affected. that, on 16.07.2005 when the complainant had brought the said vehicle with the opponent dealer it was observed that the cam-plate of the vehicle found damaged which was due to the use of adulterated diesel. there was no any manufacturing defect in the vehicle. thus it was contended that complaint was baseless, be dismissed. 4. the district forum after going through the record and hearing the parties has dismissed the complaint. the district forum has obtained the technical report from aurangabad which was submitted on 23.08.2007. it was observed from the said report that, the unleaded weight of the vehicle was found more than the weight which was given by the opponent no.1 and 2. it is further observed by the district forum that after replacing the fuel injection pump the average consumption of diesel and the pickup power was improved and found satisfactory as admitted by the complainant. it is further observed by the district forum that the said vehicle was repossessed by the finance company for default of repayment of loan and no documentary evidence regarding the repayment of loan of rs.2,30,216/- was produced by the complainant on record. it is further held by the district forum that the alleged defects of the vehicle i.e. overeating and excess consumption of fuel etc. has not been proved and however considering the technical defects in the vehicle the complaint has been partly allowed by the district forum and accordingly the impugned judgment and order is passed, whereby the opponent dealer and the manufacturing company have been directed to pay a lump sum compensation of rs.15,000/- to the complainant. 5. aggrieved by the said judgment and order the present appeal is filed in this commission for the enhancement of the compensation. adv. shri. chitnis was present for the appellant and adv. shri. k. b. jadhav was present for the respondent no.2. however, none was present for respondent no.1 i.e. dealer, his counsel shri. p.b. patil was also absent. however, proxy adv.shri. s. g. bhosle was present for respondent no.1. we heard both counsel finally and appeal was adjourned for judgment. 6. the learned counsel shri. jayant chitnis, appearing for the appellant submitted that the vehicle purchased by the complainant had the inherent manufacturing defect in it and therefore the manufacturing company had stopped the manufacturing of the said model of the vehicle within a period of less than one year of its introduction. he further submitted that due to its over eating the driving of the vehicle was to be stopped in between for cooling the engine. the nut bolts were required to be changed. that, the vehicle showed huge noise. there was more consumption of diesel and had poor pick up etc. and therefore contended that the district forum without considering the evidence placed by the complainant before it has awarded only a meager amount of rs.15,000/-. hence he requested to allow the appeal and grant the relief as prayed for by the complainant in its complaint. 7. on the other hand, learned counsel shri. k. b. jadhav appeared for opponent manufacturing company submitted that there was no any manufacturing defect in the alleged vehicle and it had a good performance. he submitted that the job cards of the servicing of the said vehicle also shows recording over eating etc. he further submitted that the appellant company not raise story in appeal and it is contested in the original complaint. hence he submitted there being no substance in appeal the same be dismissed with cost of rs.10,000/-. 8. we have carefully gone through the papers, such as copies of the complaint, written version filed by the opponent dealer and the manufacturing company, job cards report of the rto, valuation certificate of the surveyor shri. v. s. gandhi, impugned judgment and order and the written notes of arguments. 9. the main point which come up for our consideration is whether the complainant has proved that there was any alleged manufacturing defects in the vehicle. from the perusal of the complaint it appears that the complainant had main complaint about the vehicle was of overheating. this problem of over eating had given rise to other problems like excess consumption of diesel, less pick up power and less average of the vehicle etc. as alleged by the complainant. however there is no any cogent evidence placed on record by the complainant to prove that there was any manufacturing defect in the said vehicle. as contended by the opponent dealer and the manufacturing company problem of overheating or excess consumption of diesel might be because of excess loading and using of adulterated diesel in the vehicle. in absence of any cogent evidence on record regarding the manufacturing defect in the said vehicle, the above said contention of the opponent dealer /manufacturing company can not be accepted. 10. it is further to be noted that from the perusal of the job card dated 14.04.2005, 02.06.2005 and 11.08.2005 nowhere the problems of overeating or excess consumption of diesel is mentioned. even in the appeal memo in para-5 it is mentioned by the complainant that the vehicle when empty, the same could be driven very smoothly and without any problem. however when the vehicle of full load, it had slow pickup and not in a position to run smoothly on the hilly regions and ghats particularly. further he has mentioned that the vehicle otherwise has good performance on plain roads or with lesser load. it indicates that there was no inherent manufacturing defect in the vehicle. it is also pertinent to note that the complainant has filed œvaluation certificate? obtained by shri. v.s. gandhi, authorized surveyor and loss assessor, govt. of india dated 12.10.2006 which also mentions that overall condition of the vehicle was good and maintained properly. 11. in view of the aforesaid facts and observations we find that the allegations of the complainant regarding manufacturing defect in the said vehicle has not been proved. however since due to the alleged technical problems by over eating, excess consumption of diesel etc. the complainant had to bear some cost of repair causing physical, mental and financial harassment to him and hence the district forum has rightly awarded the amount of compensation of rs.15,000/-. the claim of the complainant for refund of the entire cost of the vehicle etc. is not at all justified. hence there being no substance in appeal the same requires to be dismissed by confirming the impugned judgment and order passed by the district forum. 12. in the result, we pass the following order.order 1. the appeal is dismissed. 2. no order as to cost.
Judgment:

K.B. Gawali, Member:

1. This appeal is filed by the original complainant against the judgment and order dated 31.12.2007 passed by the District Forum, Aurangabad in consumer complaint No.197/2006, whereby the complaint came to be dismissed. The respondents are the original opponents. For better understanding appellant is hereinafter termed as the œcomplainant? whereas, the respondent No.1 which is a dealer of the Eicher Motors is hereinafter termed as the œdealer? and respondent No.2 which is a manufacturing company of Eicher Motors is hereinafter termed as œopponent manufacturing company? and respondent No.3 which is a finance company is hereinafter termed as œopponent finance company?.

2. The factual aspects of this case in a nutshell are that, the complainant had purchased Eicher Motors from the opponent dealer as manufactured by opponent manufacturing company as on 22.12.2004 and the same was registered having registration No.MH.20.A.A.9250. It was submitted that for purchasing this Eicher Truck a loan of Rs.6,00,000/- was availed from the opponent finance company. It was further contended that the said truck was purchased for earning the livelihood of his family. It is the case of the complainant that since the day the said truck was purchased it had a problem of over eating and the same was brought to the notice of the General Manager Shri. Jain of the opponent dealer. He had accordingly assured that at the time of servicing the problem of over eating would be removed. That, due to the over eating there were other problems associated with it i.e. excess consumption of fuel and less average etc. He further contended that although the said truck was given for repairs the problem of overeating was not removed. That, despite repeated repairs of the vehicle in question the problem of overeating associated with other problems was persisted. That, on 16.07.2005 when the vehicle was taken for servicing with opponent dealer, the companies representative i.e. service engineer namely Shri. G. Mahesh was also present and after repairs of the said vehicle under his supervision he assured that the problem of overeating would not be there. But the said problem was not removed. He therefore contended that, since the purchase of the vehicle due to defects, he could not make business from the vehicle till the date of filing of complaint i.e. almost fifteen months and hence he had to pay the installments of loan for the said period amounting to Rs.2,56,335/- from other sources. Thus alleging that by selling said defective vehicle to him, the opponent dealer as well as the opponent manufacturing company have committed deficiency in service and filed the consumer complaint before the District Forum seeking directions against them to refund him cost of the vehicle i.e. Rs.7,33,379/- and the compensation towards loss of his business i.e. Rs.2,56,335/-, total being of Rs.9,09,114/- along with interest @ 12% p.a. etc.

3. The opponent dealer as well as manufacturing company appeared before the Forum and contested the claim. It was contended that the complaint filed by the complainant was false and baseless. It was denied that there was any defect of overeating as well as loading capacity or average with the vehicle. It was contended that free service of the vehicle was done regularly and no such defect was found. It was alleged that due to adulterated diesel used by the complainant the average running of the said vehicle could have affected. That, on 16.07.2005 when the complainant had brought the said vehicle with the opponent dealer it was observed that the cam-plate of the vehicle found damaged which was due to the use of adulterated diesel. There was no any manufacturing defect in the vehicle. Thus it was contended that complaint was baseless, be dismissed.

4. The District Forum after going through the record and hearing the parties has dismissed the complaint. The District Forum has obtained the technical report from Aurangabad which was submitted on 23.08.2007. It was observed from the said report that, the unleaded weight of the vehicle was found more than the weight which was given by the opponent No.1 and 2. It is further observed by the District Forum that after replacing the fuel injection pump the average consumption of diesel and the pickup power was improved and found satisfactory as admitted by the complainant. It is further observed by the District Forum that the said vehicle was repossessed by the finance company for default of repayment of loan and no documentary evidence regarding the repayment of loan of Rs.2,30,216/- was produced by the complainant on record. It is further held by the District Forum that the alleged defects of the vehicle i.e. overeating and excess consumption of fuel etc. has not been proved and however considering the technical defects in the vehicle the complaint has been partly allowed by the District Forum and accordingly the impugned judgment and order is passed, whereby the opponent dealer and the manufacturing company have been directed to pay a lump sum compensation of Rs.15,000/- to the complainant.

5. Aggrieved by the said judgment and order the present appeal is filed in this Commission for the enhancement of the compensation. Adv. Shri. Chitnis was present for the appellant and Adv. Shri. K. B. Jadhav was present for the respondent No.2. However, none was present for respondent No.1 i.e. dealer, his counsel Shri. P.B. Patil was also absent. However, proxy Adv.Shri. S. G. Bhosle was present for respondent No.1. We heard both counsel finally and appeal was adjourned for judgment.

6. The learned counsel Shri. Jayant Chitnis, appearing for the appellant submitted that the vehicle purchased by the complainant had the inherent manufacturing defect in it and therefore the manufacturing company had stopped the manufacturing of the said model of the vehicle within a period of less than one year of its introduction. He further submitted that due to its over eating the driving of the vehicle was to be stopped in between for cooling the engine. The nut bolts were required to be changed. That, the vehicle showed huge noise. There was more consumption of diesel and had poor pick up etc. and therefore contended that the District Forum without considering the evidence placed by the complainant before it has awarded only a meager amount of Rs.15,000/-. Hence he requested to allow the appeal and grant the relief as prayed for by the complainant in its complaint.

7. On the other hand, learned counsel Shri. K. B. Jadhav appeared for opponent manufacturing company submitted that there was no any manufacturing defect in the alleged vehicle and it had a good performance. He submitted that the job cards of the servicing of the said vehicle also shows recording over eating etc. He further submitted that the appellant company not raise story in appeal and it is contested in the original complaint. Hence he submitted there being no substance in appeal the same be dismissed with cost of Rs.10,000/-.

8. We have carefully gone through the papers, such as copies of the complaint, written version filed by the opponent dealer and the manufacturing company, job cards report of the RTO, valuation certificate of the surveyor Shri. V. S. Gandhi, impugned judgment and order and the written notes of arguments.

9. The main point which come up for our consideration is whether the complainant has proved that there was any alleged manufacturing defects in the vehicle. From the perusal of the complaint it appears that the complainant had main complaint about the vehicle was of overheating. This problem of over eating had given rise to other problems like excess consumption of diesel, less pick up power and less average of the vehicle etc. as alleged by the complainant. However there is no any cogent evidence placed on record by the complainant to prove that there was any manufacturing defect in the said vehicle. As contended by the opponent dealer and the manufacturing company problem of overheating or excess consumption of diesel might be because of excess loading and using of adulterated diesel in the vehicle. In absence of any cogent evidence on record regarding the manufacturing defect in the said vehicle, the above said contention of the opponent dealer /manufacturing company can not be accepted.

10. It is further to be noted that from the perusal of the job card dated 14.04.2005, 02.06.2005 and 11.08.2005 nowhere the problems of overeating or excess consumption of diesel is mentioned. Even in the appeal memo in para-5 it is mentioned by the complainant that the vehicle when empty, the same could be driven very smoothly and without any problem. However when the vehicle of full load, it had slow pickup and not in a position to run smoothly on the hilly regions and ghats particularly. Further he has mentioned that the vehicle otherwise has good performance on plain roads or with lesser load. It indicates that there was no inherent manufacturing defect in the vehicle. It is also pertinent to note that the complainant has filed œvaluation certificate? obtained by Shri. V.S. Gandhi, authorized Surveyor and Loss Assessor, Govt. of India dated 12.10.2006 which also mentions that overall condition of the vehicle was good and maintained properly.

11. In view of the aforesaid facts and observations we find that the allegations of the complainant regarding manufacturing defect in the said vehicle has not been proved. However since due to the alleged technical problems by over eating, excess consumption of diesel etc. the complainant had to bear some cost of repair causing physical, mental and financial harassment to him and hence the District Forum has rightly awarded the amount of compensation of Rs.15,000/-. The claim of the complainant for refund of the entire cost of the vehicle etc. is not at all justified. Hence there being no substance in appeal the same requires to be dismissed by confirming the impugned judgment and order passed by the District Forum.

12. In the result, we pass the following order.

ORDER

1. The appeal is dismissed.

2. No order as to cost.