National Consumer Disputes Redressal Commission, New Delhi

Consumer Case Studies

Consumer Disputes Redressal Commission Maharashtra State

First Appeal No. 638/2000 in Consumer Complaint No. 472/1998 District Consumer Forum, Nashik

Date of Filing: 24/03/2000

Date of Order: 13/05/2008

Automotive Manufacturers Ltd, 108, Bazar Ward, Kurla (W), Mumbai - 400 070

- Appellant (Org. O.P. No. 2)

Versus

1) Shri Ravindra Fulchand Agarwal, R/s 24, Awadhut Wadi, A/P Navapur, Distt - Dhule

- Respondent No. 1 (Org. Complainant)

2) M/s Ashok Leyland Ltd, represented by DGM (Service), Anna Salai, Nandanam, Chennai - 600 035

- Respondent No. 2 (Org. O.P. No. 1)

First Appeal No. 638/2000 in Consumer Complaint No. 472/1998 District Consumer Forum, Nashik

Date of Filing: 13/04/2000

Date of Order: 13/05/2008

M/s Ashok Leyland Ltd, Anna Salai, Nandanam, Chennai - 600 035

- Respondent No. 2 (Org. O.P. No. 1)

Versus

1) Shri Ravindra Fulchand Agarwal, R/s 24, Awadhut Wadi, A/P Navapur, Distt - Dhule

- Respondent No. 1 (Org. Complainant)

2) Automotive Manufacturers Ltd, 108, Bazar Ward, Kurla (W), Mumbai - 400070

- Appellant (Org. O.P. No. 2)

First Appeal No. 638/2000 in Consumer Complaint No. 472/1998 District Consumer Forum, Nashik

Date of Filing: 27/03/2000

Date of Order: 13/05/2008

Shri Ravindra Fulchand Agarwal, R/s 24, Awadhut Wadi, A/P Navapur, Distt - Dhule

- Appellant (Org. Complainant)

Versus

1) DGM (Service), Ashok Leyland Ltd, Anna Salai, Nandanam, Chennai - 600 035

- Respondent No. 1 (Org. O.P. No. 1)

2) Works Manager, Automotive Manufacturers Ltd, Nashik Branch, MIDC, Plot No. P-1-12, Addl. Nashik Indl Area, Ambad, Nashik - 422 010

- Respondent No. 2 (Org. O.P. No. 2)

Corum:

          Mr Justice B B Vagyani, Hon'ble President
          Mr P N Kashalkar, Hon'ble Judicial Member
          Smt S P Lale, Hon'ble Member

Important Point

Replacement of any major part can be ordered only when the part is not serviceable or reparable.

Order

By this common judgment, we are disposing off the three connected appeals filed by aggrieved O.P. No. 1, aggrieved O.P. No. 2 and the Complainant himself against the judgment passed by the District Forum, Nashik whereby, by an award dated 15/2/2000 passed in complaint No. 472/1998, both the opponents were directed to replace the chassis of the disputed vehicle belonging to the Complainant within two months and also directed to pay amount of Rs. 5,000/- for deficiency in service, Rs. 1,000/- as cost. Obviously, Complainant has filed appeal for enhancement of the amount and other two opponents have filed the appeals for getting quashed the said judgment.

This judgment has been delayed considerably on account of the fact that, after hearing the arguments, we had reserved the three appeals for orders and thereafter all the three files went missing. We, therefore, requested Appellant in Appeal No. 668/2000 to give new set of files of all the three appeals. Accordingly, on 7/4/2008, he gave new set of files and it is for this reason the disposal of these three appeals was delayed obviously for the reasons not within our control.

Facts giving rise to the filing of these three appeals may be summarised as under.

Mr Ravindra Agrawal, resident of Awadhutwadi, at and post Navapur, District Dhule had filed Consumer Complaint No. 472/1998 alleging deficiency in service on the part of M/s. Ashok Leyland Limited and Works Manager of Automotive Manufactures Limited, M.I.D.C. Nashik Industrial Area, Nashik. According to the Complainant, he was educated unemployed. He decided to start his own business. O.P. No. 2 is the authorized dealer of M/s Ashok Leyland Limited, O.P. No. 1 is the manufacturer of Ashok Leyland 'Cargo 709 vehicle. Complainant purchased one such vehicle from O.P. No. 2 from Nashik for Rs. 4,94,390/- on 4/3/1997. There was warranty of 18 months for the said vehicle from the date of sale or up to kilometer of 1,50,000 whichever is earlier. He noticed that in December 1997, chassis of the vehicle had cracked. He, therefore, intimated the O.P. No. 2 who repaired the chasis temporarily after consuming fifteen days period. He was charged bill of Rs. 1,087/- by O.P. No. 2 for the said repairs. Again, in the month of July 1998, Complainant noticed that other side of chassis had cracked. Again, he intimated the cracking of the chassis to O.P. No. 2. He brought the vehicle at Nashik at the service centre of the O.P. No. 2. He gave letter in writing for the cracks found in the chassis. The vehicle was kept in the workshop of O.P. No. 2 for a pretty long time and on 19/9/1998, he was ultimately given back the delivery of the vehicle after carrying out necessary repairs but he was required to pay Rs 9,000/- to O.P. No. 2 for those repairs. Thus, according to the Complainant, the vehicle remained idle for two and the half months in the workshop of the O.P. No. 2.

According to the Complainant, when he was taking the vehicle from Nashik to Navapur after taking delivery second time, the vehicle halted on the road due to air lock and it remained idle on the road up to 25/9/1998. Air pressure pipe of vehicle was damaged and it was not available with the opponents. The said air pressure pipe was not made available to the Complainant till filing of the complaint. Thus, Complainant came to the conclusion that vehicle was having manufacturing defects. Complainant therefore suffered heavy loss due to manufacturing defect in the chassis and in the body of the said vehicle. He complained that O.P. No. 2 authorised dealer of O.P. No. 1 Ashok Leyland did not give service up to the mark. His behaviour with the consumer was not proper. Entire repairs were required to be carried out during the period of warranty. Therefore, Complainant sought damages of Rs. 1,94,000/- as compensation for the loss suffered by him. He pleaded that OPs are also liable to change the entire chassis of the vehicle at their cost and expenses. They are also liable to pay compensation for the harassment he was subjected to. He, therefore, filed consumer complaint with the prayers about compensation, entire change of chassis, about reimbursement of loss suffered by him, damages and Rs. 5,000/- as cost.

O.P. No. 1 Ashok Leyland filed written statement and contested the complaint. It submitted that the relief's claimed by the Complainant were beyond the pecuniary limits of the Forum. It denied each and every allegation made against it and its dealer. It pleaded that Complainant cannot be said to be Consumer within a meaning of Sec 2(1)(d) of the Consumer Protection Act, 1986. He was using the said vehicle for commercial purpose for earning profit and, on this ground, the consumer complaint should be dismissed with cost. O.P. No. 1 further pleaded that vehicle had undergone three free services in the service centre of O.P. No. 2, its authorised dealer at Nashik. The vehicle was inspected as per guidelines recommended by O.P. No. 1 Ashok Leyland Limited and it was confirmed that said vehicle was free from any manufacturing defects. On 10/12/1997, cracked side member of the vehicle was replaced free of charge under warranty purely on goodwill basis. However, amounts of Rs. 1,087/- and Rs. 3,850/- were charged only for consumable items and not for warranty items. The replacement was made at the request of the Complainant. Thereafter, vehicle was not reported to have any major problem during the month of February 1998 as alleged by the Complainant.

O.P. No. 1 Ashok Leyland Ltd further pleaded that vehicle was again brought at the service centre of O.P. No. 2 on 6/7/1998 with a complaint of side member crack now at the right hand side. Considering that vehicle was being subjected to poor operating conditions, the right side member was duly fitted with external flitches and by reinforcing the frame. This was unique requirement and special kits had to be procured. Therefore, frame was temporarily repaired to keep the vehicle on road. In the meanwhile, servicing was done, door lock was rectified and worn clutch disk was replaced at the Complainant's request at the cost of Rs. 4,833/-. At that time also, they had charged Complainant with non-warranty items and labour charges. The OP No. I pleaded that the allegation of the Complainant that his vehicle remained idle for two and half months is totally false. In the course of repairs, they had also changed air pressure pipe. According to O.P. No. 1, the problems suffered by the Complainant were not due to manufacturing defects but arose due to operational flaws. The repairs undertaken to the vehicle were bound to take some time, as defects were uncommon. In any event, warranty of O.P. No. I was confined to replacing or repairing the damaged parts only. The incidental costs and labour charges were required to be borne by the Complainant even during warranty period. The company therefore pleaded that complaint should be dismissed with cost, being vexatious, frivolous and speculative in nature.

O.P .No. 2 Automotive Manufacturers Limited also contested the complaint. It pleaded that it is authorized dealer of O.P. No. 1 and it also gives servicing to the vehicles manufactured by O.P. No. 1 Ashok Leyland Limited. But, O.P. No. 2 categorically stated that it did not give warranty to the Complainant in respect of any part of the vehicle. It is simply a coordinating agency between buyers of Ashok Leyland vehicles and manufacturer of the vehicle i.e. O.P. No. 1. It pleaded that it is in no way connected with the manufacturing process of the vehicle and therefore complaint should not be entertained against it. It further pleaded that it had given good service to the Complainant as and when he complained of any drawbacks in the vehicle. It also gave free servicing to the Complainant. On each and every time, proper service was given to the Complainant by O.P. No. 2. It specifically denied Complainant's allegation that vehicle remained idle from 6/7/1998 to 25/9/1998.

It further denied that vehicle of the Complainant was off the road for business from 22/7/1998 to 2/9/1998 and in fact during this period, vehicle had run for 24,225 Km. So, claim of the Complainant for the loss of business is totally baseless and misleading. Therefore, it prayed that complaint should be dismissed with cost in limine.

10.

On the basis of documents, affidavits produced by rival parties and after hearing arguments of both the counsels, the learned District Forum in its impugned judgment and award gave finding that there was deficiency in service on the part of the OPs and therefore they were jointly and severally liable for changing the chassis and Complainant was also entitled to the cost of the proceedings. "The District Forum accordingly passed award as mentioned in para 1 of our judgment. These appeals of all the parties involved have arisen from the order of District Forum. First two appeals are filed for getting the order passed by the District Forum quashed in toto whereas original Complainant Mr Ravindra Agrawal filed Appeal NO.668/2000 for getting relief's not granted by the Forum below.

11.

We heard learned counsels for the rival parties and also Mr Ravindra Agarwal in person. We perused the impugned order passed by the Forum below. We have also gone through the job cards produced on record issued by Automotive Manufactures Limited, Nashik regarding the repairs carried out and servicing done to the vehicle in question. There is no dispute between the parties about purchase of Ashok Leyland Cargo vehicle by Mr Ravindra Agarwal. There is no dispute that this vehicle in question was given free servicing. The moot question is whether vehicle of the Complainant was having inherent manufacturing defects in its chassis. According to the Forum below, there was manufacturing defect in the chassis and therefore Forum was pleased to direct both the original OPs to change the whole chassis of the vehicle of the Complainant and to pay him Rs. 5,000/- as compensation and Rs. 1,000/- as cost. But according to us, there was no manufacturing defect of any kind in the vehicle in question supplied to the Complainant. Manufacturing defect by its very inherent nature must be such that vehicle in question is not able to ply at all. If the vehicle had covered distance of more than 40,000 kms, then such a vehicle cannot be said to be having manufacturing defect at all. From the job cards placed on record on 16/4/1997, vehicle had covered a distance of 7,619 kms. Then on 29/5/1997, vehicle had covered distance of 15,407 kms. On 4/2/1998, vehicle had covered distance of 49,299 kms and on 6/7/1998 vehicle was brought having mileage reading of 70,310 kms then on 2/9/1998, it had covered mileage of 94,585 kms. This would clearly go to show that vehicle was not having any inherent manufacturing defect and vehicle was not at all idle as alleged by the Complainant. Twice or thrice servicing was done, repairs were carried out, deficiencies and drawbacks pointed out by the Complainant were attended to promptly. The left side chassis member was fully replaced at one time and at another time, right hand side chassis was also replaced. Besides, in the course of the servicing, on perusal of job cards produced on records, we are finding that O.P. No. 2 on behalf of O.P. No. 1 had done everything which could be done by an authorised service centre. In the circumstances, direction given by the Forum below to both the opposite parties to again replace chassis of the Complainant's vehicle is totally appearing to be uncalled for and unwarranted in law. When both the sides of the chassis were replaced in the course of servicing at the instance of the Complainant and when other parts found to be defective or replaceable were also replaced by O.P. No. 2 as authorised dealer of O.P. No.1, we fail to understand why learned District Forum directed OPs to again replace new chassis for the benefit of the Complainant.

12.

Any replacement of major part can be ordered by the Forum in a consumer action only when that part is not serviceable or repairable at all. What is repairable, what is serviceable cannot be directed to be replaced totally unless there is inherent manufacturing defect. A machine or chassis in the instant case cannot be directed to be replaced totally. Otherwise, we will be the helping unscrupulous persons like Complainant to get favourable orders despite there being no deficiency in service or no manufacturing defects in the vehicle in question. Thus, we are of the firm view that impugned order passed by the District Forum, Nashik directing both the opposite parties to change chassis of the vehicle of the Complainant is per se bad in law and cannot be allowed to sustain in law. We hold that there has been no deficiency in service on the part of O.P. No. 1 and 2. The fault if any, lies with the Complainant in operating the vehicle in question. If the Complainant is plying the vehicle putting more goods than its intake capacity permits, then the chassis of such vehicle is bound to develop cracks because of heavy load put on the vehicle. So, whatever defects were reported by the Complainant to both the OPs, they were due to overloading of the vehicle by the Complainant. It was the operational hazard and not the manufacturing defect of the chassis in question and it is for this reason we are inclined to allow appeals filed by Ashok Leyland Limited (O.P. No. 1) and Automotive Manufacturers Limited (O.P. No. 2) to quash and set aside the award passed by the District Forum, Nashik in Consumer Complaint No. 472/1998. Consequently, the appeal preferred by Mr Ravindra Agarwal deserves to be dismissed. Hence, the following order.

Order

Appeal No. 638/2000 filed by Automotive Manufacturers Limited (O.P. No. 2) and Appeal No. 776/2000 filed by Ashok Leyland Limited (O.P. No. 1) are hereby allowed.

Order of the District Forum, Nashik passed in Consumer Complaint No. 472/1998 dated 15/2/2000 is quashed and set aside. The complaint stands dismissed.

Appeal No. 668/2000 preferred by Mr Ravindra Agrawal (Original Complainant) for the relief not granted by the Forum below is also dismissed.

Parties are left to bear their own costs.

Copies of this order be sent to the parties free of charge.

(Smt S P Lale)
Member

(P N Kashalkar)
Judicial Member

(B B Vagyani)
President