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Judgment
C.Viswanath, J
The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against Order passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as the "State Commission") in Appeal No. 28 & 58 of 2012 dated 14.08.2013.
In the Complaint Case, the Respondent/Complainant was the RC Owner cum permit holder of pucca route bus No. KL 56/A 1602, manufactured by Petitioner No.3/Opposite Party No.1, sold by Petitioner No.1/Opposite Party No.2 and serviced by Petitioner No.2/Opposite Party No.3. The vehicle was hypothecated with Muthoot Financiers and Rs.28,700/- had to be remitted every month. The Complainant stated that there was an inherent manufacturing defect with the vehicle, namely low mileage, huge smoke and less pulling, wobbling of the steering, heavy wear and tear for the front tyres of the vehicle, intermittent breaking of accelerator cable, tight gear lever, wearing of the break liner on one side, clutch disk damage and rear axle complaint. Through defects were attended by Petitioner No.2, the defects could not be rectified fully because of the inherent manufacturing defects. Due to the breakdown of the vehicle, the Complainant suffered a loss of Rs.8 lakhs. During the warranty period, the Complainant had to spend Rs.1,50,000/- on spare parts and repairing charges. The vehicle was sent in July 2009 for pump work and Petitioner No.2 could not rectify and the vehicle was got stranded on the road from 23.07.2009. The Complainant filed a Consumer Complaint and prayed for compensation for unfair trade practice and deficiency in service on the part of the Petitioners. She prayed for replacement of the vehicle with a new and defect free vehicle or payment of price of the vehicle, i.e., Rs.7,56,000/- with 18% interest from 29.02.2008 till payment. The other relief claimed was payment of Rs.8 lakhs for the loss incurred, Rs.1 Lakh towards compensation and cost of the proceedings.
Notice was served on the Petitioners. Petitioner No.2 filed written statement and Petitioners No.1 and 3 also adopted the same.The Petitioners admitted that the Respondent purchased the Eicher Passenger mini bus chassis 11.10, from Petitioner No.1 on 28.02.2008, which was manufactured by Petitioner No.3 and serviced by Petitioner No.2, branch cum service centre of Petitioner No.1 in Wayanad district. The Respondent was earlier having another bus which was also manufactured and sold by the Petitioners. The Respondent purchased new chassis by exchanging the above said old bus. The Petitioners had not given any assurance regarding the mileage of the vehicle since the same depended on usage, road condition and other circumstances. The vehicle chassis was sold to the Complainant on 28.02.2008 and the warranty period was for one year. The warranty period of the said vehicle was already over. The engine and gear box of the vehicle was having 3 years warranty, from the date of purchase, subject to conditions. It was true that Petitioner No.2 and 3 were hesitating to repair the said vehicle since the Respondent was always demanding free service even after the warranty period. The Respondent made a complaint of less pulling after completion of Rs.50,000/- kilometers. The Complaint was attended by the Petitioners forthwith. The Complaint on frequent breaking of accelerator cable was a body related one. This Complaint occurred due to the peculiarities in the body building. The gear lever tight if any, could be repaired at the cost of the Respondent, since the warranty period was over. The same could be cured by replacing its rubber bushes. The complaints that were reported during the warranty period were rectified by the Petitioners. It is true that the clutch disc of the vehicle was replaced 4 times and pressure plate replaced twice. The normal life of the clutch disc was about 40,000/- kilometers. Damage of the clutch disc and pressure plate also depended on the driving style and road conditions and usage of clutch. The complaints reported were promptly attended by Petitioner No.2 and there are no manufacturing defect in the vehicle, as alleged in the Complaint. The vehicle chassis supplied to the Respondent was free from all sorts of manufacturing defects, defects in material or workmanship. The Respondent may have paid labour charges or cost of spare parts which were not covered by the warranty conditions. The Respondent had not suffered any loss of income due to the vehicle sold by the Petitioners. The Respondent was not entitled for replacement or return of sale consideration with interest. The Complaints were due to the mishandling of the vehicle and due to natural wear and tear. The Legal notice received by the Petitioners was promptly replied mentioning the facts. The Respondent's request to exchange the battery with a bigger sized one, was also undertaken by the Petitioners free of cost as a customer goodwill gesture. The Petitioners replaced brake liner of the vehicle free of cost. The Petitioners replaced silencer pipe, clutch disc and pressure plates free of cost. Since the demand of the Respondent for life long free service was rejected by the Petitioners, the Respondent was inimical to the Petitioners, which led to the institution of a false complaint. The Respondent was not entitled to any relief as prayed. The above complaint was filed by suppressing material facts and raising false allegations, which were intended only to tarnish the goodwill of the Petitioners. Hence, it was prayed to dismiss the above Complaint with costs.
District Forum, vide order 31.10.2011, allowed the Complaint partly. It observed that the vehicle was having both manufacturing and other defects. The Respondent, therefore, had to spend Rs.34,867/- and also suffered other loss.The Petitioners sold the chassis having manufacturing defects to the Respondent. It was deficiency of service on the part of the Petitioners. The Petitioners were directed to replace the vehicle with a new one. If they failed to give a new vehicle, they were directed to pay Rs.6,63,250/- to the Respondent with 10% interest from 27.07.2009 till payment. The Petitioners were directed to pay Rs.50,000/- as cost and compensation to the Respondent. After payment or replacement with a new vehicle, the Petitioners could take back the old vehicle i.e. KL 56 A 1602, after completing the formalities.
Being aggrieved of the order passed by the District Forum, the Petitioners filed an Appeal before the State Commission. The State Commission, vide order dated 14.08.2013, partly allowed Appeal No.28/2012 and dismissed Appeal No. 58/2012 on the ground that the Petitioners admitted that the vehicle was having defects and most of the defects were cured during warranty period. It was an undisputed fact that the Respondent paid Rs.7,56,000/- and Rs.92,750/- was given as a discount, which is evidenced by the documents. Nothing was brought in evidence to show that the Petitioners committed any unfair trade practice upon the Respondent by selling the chassis of a lorry in place of a transport vehicle. The Respondent had not raised any contention or objection regarding this matter at the time of purchase. Hence, the Respondent could not raise such an allegation at a belated stage. It was clear from the documents that on several occasions, the vehicle was taken to the workshop and defects were rectified. It was also clear from the documents that the Respondent was compelled to cancel trips mid-way due to breakdown of the vehicle. Certainly this would cause mental agony and it was to be compensated. While considering the compensation, the State Commission considered the mileage covered by the vehicle. Once the Odometer was repaired, the last reading taken by the Commissioner was 96,074 kms. In this context, it relied upon to the decision of the Hon'ble Supreme Court in "Tata Engineering & Locomotive Co; Ltd. and another case" for a proportionate deduction for the use of the vehicle. It was of the considered view that the compensation awarded by the Forum below was to be deducted towards the use of the vehicle to Rs.1,25,000/- and the balance amount of Rs.5,38,250/- was to be paid to the Respondent. The said order was to be complied within 30 days on receipt of the copy of the order, failing which the Respondent was entitled to recover 12% interest from the date of the order.
Being aggrieved by the order passed by the State Commission, the Petitioners filed the present Revision Petition before this Commission.
Heard the Learned Counsel for the Petitioners and the Respondent. We have also carefully gone through the order of the State Commission and District Forum, as also the material placed on record.
The vehicle was purchased on 28.2.2008 for the livelihood of the Respondent/Complainant for a consideration from the Petitioner No.1. The husband/brother of the Respondent was handling the bus. The Respondent alleged manufacturing defect in the vehicle and repeated breakdown of the vehicle since its purchase, leading to loss of income due to cancellation of trips and keeping the vehicle idle for several months. Though defects were attended by Petitioner No.2, they could not be fully rectified. The Respondent had to spend Rs.1,50,000/- towards repairs and spare-parts during the warranty period.
The Petitioner stated that there was no manufacturing defect in the vehicle as alleged by the Complainant. The defects noticed were due to usage, normal wear and tear and road conditions. Non-adherence to the maintenance schedule, also contributed to the problems in the vehicle. There were many parts which were outsourced by the Petitioners and they could not be held responsible for the same. As and when defects/problems were brought to their notice, they were promptly attended. Items like clutch disc and pressure plate among others, were replaced free of cost as a gesture of goodwill to the Respondent. The expert, Motor Vehicle Inspector, inspected the vehicle twice, and opined that there were mechanical and other defects in the vehicle.
It is very clear from the above, that the vehicle had repeated defects/problems during the course of usage. The Petitioners did attend to them, but not to the complete satisfaction of the Respondent and hence the Complaint. The recurring complaints in the vehicle led to loss of income due to keeping the vehicle idle, cancellation of trips etc., which affected the livelihood of the Respondent.
The Complainant paid Rs.6,63,250/- for the purchase of the vehicle. The defects pointed out by the Respondent were attended by the Petitioners. The vehicle ran extensively, nearly a lakh of kilometers under several road/route conditions. In Tata Engineering & Locomotive Co. Ltd. and another, the Apex Court held that compensation was to be considered on the basis of proportionate deduction for the use of the vehicle.
In view of the above, we award a compensation of Rs.4,42,166/- after deducting one third amount paid by the Complainant for purchase of the vehicle. This order be complied in six months, failing which interest be paid @ 9% p.a. from the date of this order.