D.O.F. 17.10.2008

                                        D.O.O.30.11.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :     President

             Smt. K.P.Preethakumari  :     Member

Dated this the 30^th    day of November   2011.

C.C.No.230/2008

Ummer, S/o.K.Abu,

Kolliyil House,

Chittariparamba Post,

Thalassery Taluk                                       Complainant

(Rep. by Adv.E.Sanil Kumar)

1. Managing Director,

    M/s.Mahindra & Mahindra Ltd.,

    Gateway Building,

    Appolo Bunder, Mumbai 400 039

    (Rep. by Adv.Sunil C.G)

2. Manager,

    Kalpaka Motors, P.V.Sami Road,

    Calicut 2.                                               Opposite Parties

    3. Manager,

    Kalpaka Motors, Thilleri Road,

    Near  Hotel Savoy,

    Kannur 1.

    (Rep. by Adv. M.Jameel Ahamed for Ops 2 & 3)

4. The Manager,

     Mahindra Finance,

     Damas Centre,

     Thiruvangad P.O.,

     Near Town Bank Auditorium,

 5. M/s.Mahindra & Mahindra Fin.Ger Ltd.

     Cochin

     (Rep. by Adv. John Joseph for Ops 4 & 5)

O R D E R

Smt. K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `85,642 paid by the complainant to opposite parties 3 to 5 and also to direct opposite parties 4 and 5 not to take stringent action against complainant for recovery.

          The case of the complainant in brief is that he had purchased a Mahindra Chambian Cargo VS II 3 wheeler vehicle from 3^rd opposite party through 2^nd opposite party who are the authorized dealers of 1^st opposite party by availing financial assistance from opposite parties 4 and 5 attracted by the advertisement published by 1^st opposite party that he vehicle will consume less oil with good working condition and  can easily avail financial assistance. But the running condition of the vehicle was in such a way that the vehicle need to be put in workshop twice or thrice in a week. The opposite parties have shown unfair trade practice by false representation that the vehicle is  of a particular standard, quality grade style and model and it is nothing but deception of a consumer. The complainant himself  was running the vehicle since the vehicle has manufacturing defect, the complainant was not in a position to earn money and there by to remit the loan amount and hence the complainant had issued a letter to opposite parties 4 and 5 to re-possess the vehicle and hence the 4^th opposite party repossessed the vehicle on 29.8.08 and on 5.9.08 they  issued a notice to the complainant to the effect that they are proposing to sell the vehicle. The 1^st  opposite party knowingly  sold the vehicle to the customer by making  him to believe that the vehicle is a good one belong to the same glass. The 1^st opposite party has the knowledge that the vehicle has manufacturing defect even at the time of selling. Even though the complainant had entrusted the vehicle two or three times before the authorized workshop, but their service was also not proper. The complainant approached the opposite parties 2 and 3 to take back the vehicle and release the amount already paid but they are not ready to do so. The vehicle  has inherent defects such as consumption of more oil, continuous complaint on gear box and slipping of gear, breading of pressure plate, breaking of engine mountain and engine vibration, complaint in alternative dynamo and charging of battery due to this slipping of thread of exist to the  front wheel, defective break system, improper working of cooling system and frequent change of head gasket, defective coil spring and show casgear, damaged rubber pad etc. So the complainant issued a registered lawyer notice to all opposite parties, but they have not taken any steps even though all of them received the notice. Hence this complaint.

In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version.

 1^st opposite party filed version admitting that the complainant had purchased the vehicle, but contended that the complainant is not a consumer since he had purchased the vehicle for commercial purpose and hence the grievance of the complainant can be adjudicated only through civil court. The 1^st opposite party has no transaction with the complainant since the vehicle was supplied to 2^nd opposite party on bulk orders and hence there is no privity of contract with complainant. So the complaint is liable to be dismissed. The complainant has to produce related documents to prove the purchase of the vehicle. The 1^st opposite party has never made any advertisement with respect to oil consumption. The opposite parties 4 and 5 has no connection with other opposite parties. From enquiry it is revealed that the complainant had never brought the vehicle to the workshop as alleged by the complainant. The vehicle was brought before service centre for free service on 16 occasions. The 1^st opposite party has never made any false representation about standard, quality and grade of the vehicle and ever committed an act of deception on the complainant as a consumer. The averment that the vehicle is used for the livelihood of the complainant is not correct and the vehicle is not used by the complainant. If the vehicle is not performing poorly it is due to the manhandling of the vehicle. The 1^st opposite party has no knowledge about the registered letter and repossession of the vehicle by opposite parties 4 and 5.

          The 1^st opposite party has never sold any vehicle by misrepresentation and hence there is no unfair trade practice on the part of 1^st opposite party. The complainant has no bonafide to contend that the vehicle has to be taken back and to release the amount paid. The vehicle has no defects as alleged. If it has any defect it was due to mishandling of the complainant. No major complaint was reported any time when the vehicle was brought before opposite parties 2 and 3 for service and the complaints mentioned the complaint is only for the purpose of the case and to get unlawful gain. There is no merit in the lawyer notice issued by the complainant. There is no deficiency of service on the part of 1^st opposite party and hence the complaint is liable to be dismissed.

Opposite parties 2 and 3 also filed version admitting the purchase of the vehicle but denied that opposite parties 4 and 5 are branch of the other opposite parties. They denies the contention that vehicles running condition  was bad and need to be put in work shop  thrice in a week etc. The vehicle was brought to repair including free services and hence there is no unfair trade practice on the part of opposite parties. The vehicle was driven by the driver under the employment of complainant and hence the vehicle is used for commercial purpose.  Rash and negligent use is the reason for non-performance of the vehicle. The opposite parties 2 and 3 have no knowledge about the repossession of the vehicle. As per records, dates, kilometer, nature of defects noted, the replacement given under warranty etc. shows that there is no manufacturing defect and hence there is no deficiency of service on the part of opposite parties 2 and 3.The opposite parties 2 and 3 always offered good service to the customers If the vehicle has any defect it is due to mishandling and not because of any manufacturing defect. The oil consumption is same as offered. No major complaint was reported about gear box in any arrival. The repair cost for 20 months is `16,498. There is no deficiency of service as alleged and hence the complaint is liable to be dismissed.

          The opposite parties 4 and 5 also filed version admitting that the complainant had availed `1,70,000 as loan for the purpose of purchase of the vehicle. The opposite parties 1 and 5 are independent company registered under the companies Act. The complainant purchased the vehicle for commercial purpose. The complainant had defaulted payment and expressed his willingness to surrender the vehicle to 4^th opposite party and accordingly the vehicle was surrendered. The complainant had given a written acknowledgement regarding voluntarily surrender and subsequently complainant issued a lawyer notice dt. 27.9.08 requesting the  4^th opposite party to sell the vehicle  for the best market price and sent balance amount after adjusting the loan arrears. The vehicle is already sold to third party and the complainant is well aware of the fact before the complaint. The complainant has no cause of action against the opposite partitas as the complainant voluntarily surrendered the vehicle to 4^th opposite party and the opposite parties are not liable for any manufacturing defects. The complainant’s attempt is to escape from the liability of paying the loan amount .The vehicle was sold in public auction and the complainant is well aware of the fact and after adjusting it, the complainant is liable to pay a further amount of

 `1,17,754 to 5^th opposite party. If the complainant has any complaint regarding manufacturing defect the complainant would not have surrendered the same. As per the loan agreement, the opposite parties 4 and 5 have every right to recover the amount payable by recourse to legal process and the 2^nd prayer sought is not sustainable. The complainant is not a consumer and hence the complaint is liable to be dismissed.

Upon the above contentions the following issues have been

raised for consideration.

    1. Whether the complainant is a consumer?

     2. Whether there is any deficiency of service on the part of  

          opposite parties?

     3. Whether the complainant is entitled to any relief as

          prayed?

    4.  Relief and cost.

   The evidence in the above case consists of oral testimony of

PW1 to PW4 and DW1 and DW2 and  Exts. A1 to A39 and B1 to B10.

Issue No.1

          The opposite parties in the above case contended that the complainant is not a consumer since the vehicle purchased for commercial purpose. The complainant has a case that he had purchased the vehicle for the purpose of earning his lively hood and not for commercial purpose. But the opposite parties denied the version of the complainant and contended that the complainant had purchased the vehicle for commercial purpose and contended that the complainant has no driving licence and badge. But the complainant has produced Ext.A37 and 38 copies of badge and driving license. The opposite parties have not produced any documents to prove their contention that the complainant has sufficient other means for his lively hood. Moreover the DW1 deposed before the Forum that   “ hml-\-tam-Sn¨v In«p¶ hcp-am-\T sIm­mWv A\-ym-b-¡m-c³ Pohn-¨p-t]m-Ip-¶Xp F¶p ]-d-ªm AXp \ntj-[n-¡m³ Ign-bn-Ã. ”.  So the opposite parties failed to substantiate their contention that the vehicle was purchased for commercial purpose. Hence we are of the opinion that the complainant has purchased the vehicle for eking his lively hood and hence the complainant is a consumer and the Forum has ample jurisdiction to try the case and issue No.1 is found in favour of the complainant.

Issue Nos. 2 to 4

          The complainant’s further case is that due to inherent mechanical defect, he was notable to use the vehicle and earn money and hence he had failed to pay the finance amount in time and as a result the vehicle was surrendered before the opposite parties 4 and 5 and he had paid `85,642 to the financier in addition to surrendering of the vehicle and hence the 1^st opposite party is liable to refund the above said amount to the complainant. In order to prove his case PW1 to PW4 were examined and produced documents such as copy of lawyer notice, postal receipts, letter of surrendering the vehicle, pre-sale notice and 34 bills of different dates etc. The opposite party also examined DW1 and DW2 and produced documents like original of the Hire Purchase agreement, pre-sale notice, post sale notice, original of letter of surrendering the vehicle, authorization letter, valuation report, quotations three in number and undertaking given by the second purchaser etc. in order to disprove the case. The complainant contended that the vehicle has inherent manufacturing defect and the vehicle had  entrusted in workshop in twice in every week and produced 34 bills to prove his case. Admittedly the complainant had purchased the vehicle on 19.10.06 and he surrendered the vehicle before 4^th opposite party on 29.8.08 as per Ext.A3. So it is seen that the complainant has used the vehicle about two years. If the vehicle has any manufacturing defect, the complainant has to informed the same to the opposite parties 1 to 3 since they are the manufacturer and dealers soon after he has understand the defect. But the complainant has no such case. The complainant issued Ext.A1 lawyer notice only on 11.7.08. Soon after the Ext.A1 he had surrendered the vehicle before 4th opposite party as per Ext.A3.  Moreover there is no document before us to show that the vehicle has manufacturing defects. The opposite parties contended that the defects caused to the vehicle are due to the mishandling of the vehicle. It is true that the complainant has produced some bills but it is not helpful to came to the conclusion that the vehicle has manufacturing defect. The auction of the vehicle was conducted on 23.10.08 and the post sale letter was issued to the complainant on 25.10.08. The complaint was filed on 17.10.08 and notice was issued to opposite parties on 22.10.08. i.e. auction of the vehicle was conducted by opposite parties 4 and 5 before receiving the notice. So it cannot be say that the sale was conducted for defeating the very purpose of the case.

          The complainant has not convinced the Forum that the vehicle has defect as stated in the complaint. The complainant contended that the production of this type of vehicle was stopped by 1^st opposite party due to inherent defects. But the DW2 deposed that “ ]pXnb technologies with new model hcp-t¼mÄ ]gb  modelIÄ ]n³h-en-¡m-dp­v”. But the complainant has not taken any steps to disprove and to substantiate his contention that the production was stopped due to inherent defects of the model. Above all the vehicle is not with the complainant and it was sold in auction by opposite parties 4 and 5. So from the available evidence on record, it is seen that the complainant failed to establish his case that the vehicle purchased by him through opposite parties 2 and 3 made up of 1^st opposite party had inherent manufacturing defect. So we are of the opinion that the complaint is liable to be dismissed and order passed accordingly              In the result, the complaint is dismissed. No cost.

                               Sd/-                        Sd/-

                           President                Member  

APPENDIX

Exhibits for the Complainant

A1. Copy of the lawyer notice sent to  OP

A2.Postal receipts

A3.Copy of the letter sent to OP4.

A4.Letter sent by OP4

A5,A8,A9,A12,A14,A15, A17 to A20,A22 to A24,A26 to A31,A33 and A34..Tax invoice issued by OP3

A6 ,A7,A10,A11,A13,A16,A21,A25, A32,A36.Labour cash bills  issued by OP3

A35. Tax invoice dt.30.7.08 issued by OP3.

A37  & 38..Copy of the Badge and license  issued by Asst. Licensing authority

A39. Paper publication dt.11.12.06

 Exhibits for the opposite Parties:

B1.Loan Agreement

B2 & B3.Copies of the letter sent by OP4 to complainantdt.5.9.08 and25.10.08

B4.Leter issued by complainant

B5.Letter of authorization

B6.Valuatin report prepared by R,Praveen Kumar

B7 to B9. Quotations dt. 16.10.08

B10.Undertaken by

Witness examined for the Complainant

PW1.Complainant

PW2.Sunilkumar

PW3.K.Chandran

PW4.Babu.P.Jose

Witness examined for the opposite Parties:

DW1.Shijith.K.A

DW2.Anup.V                               

 /forwarded by order/

                                                  Senior Superintendent