JITENDRA K. SHAH Vs. ASHOK LEYLAND LTD.

JUDGEMENT

(1.) THIS complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by the purchaser of motor vehicle type AL CARGO 1614.1 bearing Chassis No. RXR/200265 Engine No. QXH/071489 claiming relief of declaration that the vehicle AL CARGO 1614.1 Tipper manufactured by opponent No. 1 is defective vehicle and that the service rendered by the opponents suffer from the breach of warranty and deficiency in service; that the opponents be ordered to pay a sum of Rs. 5,41,218 to the complainant towards initial hire purchase price and 15 instalments paid to the opponents with interest at the rate of 15%; that the opponents may be ordered and directed to pay Rs. 2,42,360 towards loss of income incurred by the complainant due to detention of the vehicle by the opponent for 166 days with further interest of Rs.18,000 @ 15% on the said amount from 1.9.1998 to 28.2.1999 and further interest @ 15% on Rs. 2,60,360; that the opponents be ordered to pay a sum of Rs. 41,769 to the complainant towards the expenses incurred for repairs and parts replaced in the said vehicle; that the opponents be ordered to pay Rs. 19,409 towards insurance premium and road tax paid by the complainant; that the opponents be jointly and severally ordered to pay a sum of Rs. 2,00,000 towards compensation for mental agony and harassment and hardship caused to the complainant due to the defective vehicle sold and deficiency in service rendered to the complainant.

(2.) THE complainant purchased the vehicle manufactured by opponent No. 1 of type AL CARGO 1614.1 on 26.3.1997 for Rs. 7,51,830; that the warranty for the subject vehicle was 18 months from the date of purchase or 1,50,000 kms. whichever is less; that opponent No. 1 is a manufacturer of the vehicle; opponent Nos. 2 and 3 are dealers of opponent No. 1 at Ahmedabad and Rajkot respectively; opponent Nos. 4 and 5 are Financiers with whom hire purchase agreement was entered into by the complainant for raising finance for the purchase of the said vehicle; that the vehicle was booked through opponent No. 3; the vehicle was delivered by opponent No. 2 as the dealer of opponent No. 1 at Ahmedabad; that the complainant is hailing from middle class family and that the vehicle was purchased for the livelihood of the complainant on hire purchase basis and the vehicle was used as goods carriage for transporting material from one place to another; that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986; the obligation under the warranty is limited to either repair or replacement free of charge such parts of the vehicle which are deemed to be defective in the opinion of opponent No. 1 and shall not extend to consequential loss. Opponent Nos. 1 to 3 were expected to give proper service and in the event of breach, the same would amount to deficiency in service; that the complainant paid all necessary taxes and insurance premium; that after the purchase of the vehicle on hire purchase basis, on number of occasions during warranty period the vehicle was taken to the workshop of opponent No. 3 for repairs and rectifications of defects in the vehicle; that during the service rendered by opponent No. 3 it was found that the vehicle was having various defects; in fact front and rear springs, brackets were replaced; air cleaner assembly and gear box cross member were replaced. Since the vehicle was not functioning properly the pick up was also down. The average was low and engine was knocking. The defects which are stated to be inherent defects are stated in para 8(a) to (h) which pertain to hydraulic system, complete failure of clutch system, gear system was not functioning properly, propeller used to break on several times, despite modification done in the brakes, same was not functioning up to its maximum level and required repairs each and every time, the moment the vehicle starts, it gives a roaring noise shivering the whole cabin i.e. engine was knocking, crown pinion was not functioning in the month of July 1998. Same could not be replaced by opponents due to non -availability of said part at Rajkot and the vehicle could not function for 1 months, the Tipper Radiator assembly was not functioning properly as there was leakage in the radiator coolant due to which the engine remained hot, that lot of inconvenience and hardship was caused to the complainant because the vehicle delivered was itself suffering from inherent defects and the said defects were never rectified by opponents during warranty period; that during the warranty period, a bill of Rs. 41,769 was raised by opponent No. 3 towards repairs and part replacement in the vehicle; the complainant paid the amount of Rs. 14,202.80 towards said bill raised, dues to the tune of Rs. 27,567.20 has not been paid as the total bill raised by opponent No. 3 is disputed by the complainant as the vehicle was not repaired; that the complainant is entitled to free of charge replacement of parts as per the terms of the warranty; that the complainant is entitled to refund of Rs.14,202.80 paid by him as proper repairs were not made; that vide letter dated 28.8.1998 he informed opponent No. 5 to take back the vehicle on 'as is where is basis'; since there was no response, complainant vide letter dated 2.9.1998 pointed out that since the vehicle was causing operational problems due to manufacturing problems/defects, the vehicle is surrendered on 'as is where is basis'. At that time the vehicle was lying at the workshop of opponent No. 3 for repairs since three months; that opponent Nos. 4 and 5 demanded that if the complainant does not make payment of the instalments due up to June 1998 with additional interest thereon, opponent Nos. 4 and 5 would not take back the vehicle; the complainant having no alternative but to make said payment apprehending the opponents may initiate legal proceedings for recovery of balance instalments due under the hire purchase agreement the complainant made the payment for a sum of Rs. 1,17,928 with additional interest in the sum of Rs. 10,928 to opponent No. 5 by way of demand draft dated 1.9.1998; that the vehicle was surrendered on 1.9.1998 during the period of warranty and therefore the complainant is entitled to the refund of the total amount paid for the purchase of the vehicle on hire purchase basis and other expenses incurred. In para 13 of the complaint, expenses to the tune of Rs. 6,02,396 have been stated including the purchase price of the vehicle on hire purchase basis of Rs. 5,30,290; that the vehicle was brought on number of occasions to the workshop of opponent No. 3 for carrying out necessary repairs; that the vehicle was run to carry goods from one place to another at Ambuja Cement Company; that gross earning from the use of the vehicle is Rs. 4,22,215 approximately for the period of 12 months out of which the complainant could use the truck for 289 days due to defects. The gross earning in transport business does not provide a precise idea of the profit earned and on a rough and ready basis, the transport trade assumes that half of the gross earning are spent in running the truck and providing for depreciation; that the complainant was put to loss without any fault on his part. The complainant was earning gross income of Rs. 1,460 per day and the vehicle was detained for 166 days and therefore the complainant is entitled to Rs. 2,42,360; that out of the 15 such vehicle sold in Saurashtra area by the opponents, as per the information available to the complainant, approximately 10 vehicles have been seized by the opponents as they could not function due to defect in the vehicle. The said vehicles are lying at the workshop of the opponents. Thus, the complainant has claimed Rs. 10,74,189 as claimed in para 17 of the complaint; that due to the fault of the opponents, inconvenience and hardship have been caused to the complainant due to which the complainant had to suffer mental agony and harassment. On all these averments, the complainant has prayed for the reliefs enumerated in para 18 of the complaint.

(3.) OPPONENT No.1 vide reply Exh. 11 refuted the claim of the complainant stating that the complaint is not legal, proper and bona fide and liable to be dismissed; that the complainant has suppressed material facts and has not come with clean hands; that there are no lapses or omission or deficiency in service on the part of the opposite party; that the complaint involved does not come under Section 12 of the Consumer Protection Act. All the allegations made in the complaint are denied; that the complainant is not a consumer as defined under the Act since the vehicle has been purchased for commercial/business purpose and is not being operated by the complainant for the purpose of earning his livelihood. It is admitted that opponent No. 1 is manufacturer of Ashok Leyland Cargo range of vehicles and Ashok Leyland Cargo 1614.1 model is manufactured by opponent No. 1 and opponent Nos. 2 and 3 are the dealers of opponent No. 1 in the State of Gujarat; that warranty is provided by the manufacturers for removal of defects found in the vehicle within the warranty period. It does not offer any service so as to bring the complaint under the Act; that it was for the complainant to decide whether he should purchase the vehicle with financial assistance from the financiers - opponent Nos. 4 and 5; based on the financial arrangements made by the complainant with opponent Nos. 4 and 5, the complainant had made payment of the initial hire purchase money of Rs. 2,06.460 to opponent No. 2 for which stamped receipt No. 4502 dated 17.3.1997 was issued by opponent No. 2. On receiving clearance from the finance company of the complainant, the vehicle was delivered to the complainant on 26.3.1997 from Aslali Depot, outside Ahmedabad Municipal octroi limit of opponent No. 2. The allegations in para 7 of the complaint are denied stating that in fact the vehicle was called by opponent Nos. 1 and 3 at the workshop of opponent No. 3 for replacing the items stated in para 7 on a campaign basis for achieving better performance of the vehicle. That all these items were replaced not because there were defects but as advised above those parts were replaced as per the modification campaign to achieve better performance; that during any of the trips of the said vehicle to the workshop of opponent No. 3, there was no complaint about poor pick up or engine knocking; that the delivery of the repaired vehicle was taken by the complainant after satisfactory road test. The vehicle had reported at the workshop of opponent No. 3 on 14.4.1997 with the complaint of breakage of PTO cable and oil seal leakage which were attended to under warranty without charging any amount and was released on 18.4.1997 after satisfactory road test; that after seven months of the purchase of the vehicle, complaint relating to clutches was raised. That proves that the vehicle does not have any inherent complaint of clutch; that the complaint regarding clutch was attended for three times, gear slippage was reported by the complainant after nine months and only minor wear and tear items were replaced by opponent No. 13; that the clutch and the replacement of the cross member was not done for any complaint or performance of gear box but it was carried out as part of a modification campaign for which the complainant was not charged; that the complainant had never reported complaint of propeller shaft on any occasion. It is denied that modification on brake system was done; that there was no report for the complaint of functioning of the brake system; that the complainant has never complained about engine performance and as such no repair has been carried out in the engine; that the failure of crown wheel and pinion occurred on 9.8.1998 when the specified warranty of the manufacturers was already over and hence the replacement of crown wheel pinion could only be undertaken on chargeable basis; that the repair work could be taken on hand only on 17.7.1998 after receiving confirmation for replacement of chargeable parts of crown wheel pinion from the complainant. After completion of the job, the complainant was informed of the readiness of the vehicle duly repaired which was not collected by him for reasons best known to him. Subsequently, the said vehicle was repossessed by the finance company of the complainant for the default on the part of the complainant; that the complainant reported of non -functioning of the radiator assembly but the complaint was not due to any manufacturing defect but due to external blockage of radiator fins with mud and muck; cleaning of radiator was carried out by opponent No. 3 without charging any amount for the same; that it is evident that the vehicle did not have any inherent manufacturing defect when the delivery of the above vehicle was taken on 26.3.1997 by the complainant after his satisfactory inspection and it cannot be said that the defective vehicle was supplied by opponent Nos. 2 and 3. On the contrary, the complainant was extended service assistance every time he had approached opponent No. 3 for any service assistance every such time. As regards raising the bill of Rs. 41,769 during warranty it is stated that the said amount is towards cost of rubber parts, electricals, lubricants, gaskets, etc. which are not covered under warranty as per the stipulated warranty of the manufacturer and hence the complainant is supposed to make payment of all such consumables during service repairs. The opponents are not liable for the instalment payable by the complainant for the loan availed from his finance company as per the terms of finance agreement entered into between the complainant and his finance company. It is denied that the vehicle was having any manufacturing fault or defect and had operational problems due to which the vehicle is surrendered to opponent No. 3; that the subject vehicle is lying at the workshop of opponent No. 3 duly repaired on chargeable basis, charges which the complainant was not interested to pay and collect the repaired vehicle for reasons best known to him; that the statement of accounts dated 20.7.1998 include the bills covering the spares of normal wear and tear items purchased by the complainant across the counter of opponent No. 3 as well as the bills covering the consumable items, lubricants etc. which the complainant is required to pay as these are not covered under the warranty policy; that the subject vehicle was in the workshop of opponent No. 3 during the period 1.4.1977 to 31.3.1998 i.e. first year on 9 occasions and the total number of days the vehicle remained in the workshop is 42 when the complainant might not have used the vehicle. This included occasions when the subject vehicle was released after repairs on the same day; that the vehicle was brought to opponent No. 3 on 9.7.1998 for the first time after 1.4.1998. The vehicle was repaired and kept ready and the complainant was informed to pay the repair charges and collect the vehicle. However, the payment was not made and the vehicle was not collected till 30.8.1998 Hence, the retention of 90 days mentioned by the complainant is false. Loss of income claimed by the complainant is not admitted. It is denied that opponent No. 3 has not repaired the vehicle or was not able to rectify the defects or make proper repairs; that the allegations in the complaint are false, frivolous and with ulterior motive. The lapses in the preventive maintenance and operational aspect of the vehicle on the part of the complainant were brought to the notice of the complainant/his driver whenever the vehicle was sent for repairs to the workshop of opponent No. 3. Instead of taking proper precaution and following the guidelines given in the operator's manual provided by the manufacturer, the complainant continued using the vehicle not in line with the guidelines given to him from time -to -time. On these averments. opponent No. 1 prays for the dismissal of the complaint.