2.8.08<br /> Sri.K.Gopalan,President<br /> This is a complaint filed under section 12 of consumer Protection Act for an order directing the opposite parties to return the vehicle and to pay a sum of Rs.87,130/-.<br /> <br /> The case of the complainant in brief is as follows:<br /> The complainant approached 2nd opposite party to purchase Mahindra Champion Cargo Vehicle and paid a sum of Rs.49,877/- on 13.2.2003.The payment accounted by 2nd opposite party in different heads namely Rs.5631/- as finance documents and 1st installment, Rs.4000/- as insurance advance, Rs.40246/- as initial payment of price of vehicle. Booking was for a vehicle fitted with wooden cargo box instead of cannikin cargo box. In the usual course vehicle will be delivered within 3 to 4 days of payment. 2nd opposite party made believe him that the vehicle will be delivered soon. Complainant also paid Rs.12, 000/- as advance for body building. But vehicle was delivered by 2nd opposite party only on 14.3.2003. On verification it is found missing back grill, battery box, stepiny tyre, carrier, radiator water intact pipe extension, light in cabin etc. in the vehicle. So also the headlight doom was substandard and very old and painted in sight. More over it is seen that the repainting especially with the cabin has not been done very well. Complainant informed the 2nd opposite party then and there that the vehicle cannot be taken without curing the above said defect. Then the 2nd opposite party informed him that those defects will be cured before 17.3.2003 and complainant can come and take vehicle on the same day. Believing these words the complainant returned but when he went again on 17.3.03 to take vehicle he could realize that neither had been done anything to cure any of the defects shown. 2ndopposite party is liable to give him a defect free good vehicle. He is also bound to register the vehicle and obtain fitness certificate. Being very much disappointed complainant sent a lawyer notice calling upon to cure the defect of the vehicle within 7 days. After receiving the notice 2nd opposite party contacted the complainant over phone and told him that the vehicle is ready for delivery and after verifying it from the showroom of 1st opposite party in Calicut on satisfaction the same will be taken to Kannur. Complainant went again Calicut on 29.3.03 but vehicle was not repaired. So also as per his direction complainant went Calicut on 5.4.03 again, but the work of the vehicle had not been completed. Any how vehicle had been taken to Kannur show room on 7.4.03. Though the complainant had gone for getting the vehicle 2nd opposite party told him that there was some technical problem for delivering the vehicle and the complainant turned back without vehicle. On 9.4.03 when the complainant approached 2nd opposite party again they asked for Rs.2000/- for the expense of certificate of fitness and registration. Complainant issued a self cheque (No.789521-SBT Kannur branch).But vehicle was not delivered saying various reasons. He went again on 11.4.03 when opposite party said temporary permit has not been reached from Calicut so to come on 16.4.03. So on 16.4.03 he was given document of the vehicle. When he went to RTO Office with the documents he was compelled to return back because of not having certificate of body building. The vehicle was returned back to show room he approached. He approached the opposite party as per the direction on 19.4.03. That time opposite party demanded Rs.10500/- for the purpose of body building. Complainant issued cheque (No.789522) for the said amount to SBT, Kannur Branch. But vehicle was not delivered. When he approached again on 21.4.03 he was asked to pay Rs.18, 000/-. Complainant paid the amount and obtained a receipt of Rs.30, 000/- from 2nd opposite party. For the total amount which he has given for body building. But no receipt was given for the amount of Rs.10, 500/- which he had paid on 19.4.03. The complainant got the vehicle with document on 21.4.03. It was stated in the sale certificate that vehicle has been delivered to complainant on 16.4.03.So also it is seen that the vehicle was insured for a period from 3.3.03 to 2.3.04. In the satisfaction note prepared on 16.4.03 it has been recorded that the vehicle was delivered to the complainant on 28.2.03. Assuming that the 2nd cheque will be produced after 28.2.03 complainant issued stop memo to obstruct the payment. Though the vehicle delivered only on 21.4.03, the date of record of delivery was shown as 28.2.03and 3,3,03. It has also been seen that the complainant made payment for a period during which he has not having ownership. So also finance company calculated interest taking into consideration the vehicle delivered on 3.3.03. Both this loss is on the shoulders of complainant.<br /> The vehicle with the said specification with chassis and body issued by the Mahindra Company itself having only difference of Rs.17,000/-.But for body building 2nd opposite party received Rs.40, 500/- from the complainant. It can be seen that an excess amount of Rs.23, 500/- has been received by 2nd opposite party. The actual expense for certificate of fitness is only Rs.1870/-.They received an excess amount of Rs.130/- from the complainant. The vehicle was actually delivered only on 21.4.03. The money was kept with opposite party all this period. Because of the irresponsibility and negligence of opposite parties the complainant happened to visit different offices of opposite parties at least 25 times and had minimum 50 telephone calls. He paid the amount by selling his old vehicle. Because of the delay in delivery of new vehicle he became jobless for this period of delay; he suffered not only economic loss but also subject to mental agony. So he is entitled for Rs.10, 000/- for the loss sustained due to traveling expense, telephone charge, and loss of employment and other related expenses and Rs.50, 000/- as compensation. Opposite parties are liable to give this amount. Opposite parties are also liable to pay Rs.1000/- as interest for the amount, they have kept without delivering the vehicle. Rs.500/- as excess of insurance premium, Rs.23,500/- as excess amount realized for body building, Rs.2130/- received over and above the actual amount of certificate of fitness, Rs.10,000/- as traveling expense, telephone charge, loss sustained due to unemployment etc. and Rs.50,000/-for mental agony. That is altogether Rs.87,130/-.Apart from payment of this amount complainant also prays for an order directing the 3rd opposite party to return back the vehicle with a direction to render time to repay the due amount. <br /> After receiving the notice from the Forum opposite parties 1 to3 filed version denying the allegations in the complaint.<br /> The contention of the opposite parties 1 and 2 in brief are as follows: - The complaint is not maintainable. The complainant had purchased the vehicle for commercial purpose. The complainant is not a consumer. <br /> The complainant had paid Rs.40, 540/- in cash towards the total consideration on 13.2.2003 and agreed the balance consideration of Rs.1, 20,000/- through the financier, Mahindra & Mahindra Financial Services Ltd. This opposite party would only affect delivery of the vehicle as and when the financier gives delivery order to them. Complainant paid Rs.5631/- towards documentation charges and the first EMI through Mahindra & Mahindra Financial services limited on 28.2.2003 and only thereafter they had issued the delivery order. 1.3.2003 and 2.3.2003 were holidays and therefore this opposite party made the vehicle available for delivery on 3.3.2003.But the complainant wanted certain fabrication work to be done. Therefore on 3.3.03 the delivery of the vehicle was not affected. The total consideration fixed for doing the proposed fabrication as Rs.30, 000/-. The fabrication work was completed by 14.3.2003.But the complainant paid only Rs.12, 000/- on 10.3.2003 and the opposite party insisted the complainant to make payment of balance amount of Rs.18, 000/-. The complainant instead of paying the amount sent a lawyer notice dt19.3.03. None of the allegations in the notice were correct. After negotiation on 16.4.03 complainant took delivery of the vehicle. Rs.7500/- was due to this opposite party even at that time. This amount was paid only on 21.4.03. Therefore there is no delay on the part of this opposite parties in delivering the vehicle and complainant is not entitled to any remedy. The opposite party demanded Rs.18, 000/- on 21.4.03 and complainant paid the amount on the same day is false. In fact the receipt issued on 21.4.03 to complainant includes the sum of Rs.10, 500/- encashed through Bank and a sum of Rs.7500/- received by cash. The allegation that opposite parties collected an excess amount of Rs.23, 500/- is false. This opposite party had not collected a sum of Rs.2130/- for taking Certificate of fitness had not made the complainant to travel unnecessarily. The allegation made by the complainant that he had booked the vehicle with wooden cargo box fitted in it that it would only take 3 to 4 days for delivery after the initial payment, that on 14.3.03 when the complainant inspected the vehicle, he found that back grill, battery box,stepney tyre, carrier, radiator, water set, pipe extension etc. were missing in the vehicle, that certain portions of the vehicle were found to be old and not properly painted, that the 2nd opposite party agreed to rectify all the defects by 17.3.03, that on 17.3.03 the complainant had approached the opposite parties, he found that the defects were not rectified, that the notice was issued by the complainant due to above said reason etc. are false and denied. The intention of the complainant is nothing to extract money from this opposite parties.<br /> The contention of the supplementary 3rd opposite party in brief is as follows: - The complaint is not maintainable. Complainant purchased the vehicle for commercial purpose and the same will not come under the provisions of Consumer Protection Act. This opposite party is an unnecessary party and the complaint is bad for misjoinder of parties. This opposite party agreed to finance on terms and conditions stipulated in the Hire Purchase Agreement. As per the terms of the agreement, this opposite party had financed a sum of Rs.1, 20,000/- only to the complainant on condition that the complainant should repay the said amount with an amount of Rs.29, 835/- towards the interest in 35 installments. As such the complainant had to pay a sum of Rs.1, 49,835/- towards the loan amount. The complainant was liable to make the payment without any default @ Rs.4281/- per month. The complainant failed to pay the hire charges subsequently. This opposite party was intimated the complainant several times, but fell on deaf ears. As such this opposite party has no other remedy but to repossess the vehicle and realize the amount as per the terms of the contract. Thus this opposite party had repossessed the vehicle completing all the legal formalities to repossess the vehicle and sold the same for appropriating the loan amount. Hence prayer against this opposite party became infructus. This opposite party has no connection with opposite parties 1 and 2. The 3rd opposite party has no privities of contract with opposite parties 1 and 2. The transaction between the complainant and this opposite party is purely a civil contract and his grievance, if any, can be redressed before a civil court. 3rd opposite party also stated that at the time of the repossession of the vehicle the condition of the said vehicle was very bad due to the rash and negligent use of the complainant. The value of the vehicle considerably diminished. After the resale they sustained huge loss due to the short fall in the amount. In spite of compensating complainant dragged this opposite party before this Forum by baseless allegations. The complainant is not entitled to get any compensation whereas this opposite party is entitled for compensation. Hence prayed to dismiss the complaint.<br /> On the above pleadings the following issues are framed for consideration:-<br /> 1. Whether the complainant is a consumer and the complaint is maintainable?<br /> 2. Whether there is any deficiency on the part of the opposite parties?<br /> 3. Whether the complainant is entitled for the relief as prayed in the complaint?<br /> 4. Reliefsand costs.<br /> The evidence consists of the oral testimony of PW1, DW1,DW2 and documentary evidence Exts.A1to A13 and B1 to B6.<br /> Issue No.1:-<br /> Admittedly the complainant purchased Mahindra Champion Cargo vehicle from 2nd opposite party, complainant had paid a sum of Rs.40246/- in cash towards the total consideration of the vehicle and agreed to pay the balance amount through the financier Mahindra & Mahindra Financial Service Ltd. The specific case of the complainant is that he has purchased the vehicle for his lively hood. The opposite parties contended that the complainant purchased the vehicle for commercial purpose, so the complaint is not maintainable. The expression ‘commercial purpose’ has not been defined in the Act. The object or aim for which it is intended has to be given weight. Those who purchase goods with a view to using such goods for carrying on any activity for earning livelihood are a consumer. It can be considered commercial if only used or engaged on a large scale for the purpose of making profit. In other words a person who purchase goods with a view to using such goods for carrying on any activity on large scale for the purpose of earning profit have to be excluded from the scope of the expression ‘consumer’. Purchase of goods and large scale activity carried on for earning profit is the base that determines whether it is commercial or not. Complainant herein purchases this vehicle for his livelihood. There is no evidence otherwise. In cross examination when the question “ <br /> <br /> Asked to PW1 complainant answer was<br /> <br /> There is no material to disbelieve the complainant on this aspect. The ultimate purpose of purchase of vehicle by the complainant herein is for his livelihood. Purchase of vehicle to use for self employment is not of purchase for commercial purpose and purchaser is a consumer within the consumer protection Act. 3rd opposite party is the financier. The case of the 3rd opposite party is that the transaction with the complainant is purely a civil contract and if there is any grievance to the complainant the same has to be agitated before the Civil Court. The 3rd opposite party is a prestigious and their whole pleading is directed to the effect that the contract was basically a financing transaction. The case would clearly fall within the definition of ‘service’ under section 2(1) o of the consumer protection Act and the complainant is clearly a consumer availing those services.<br /> Issue Nos.2 to 4<br /> The complainant purchased the vehicle from 2nd opposite party, Kalpaka Motors, 3rd opposite party Mahindra & Mahindra Financial services Ltd is the financier. Ext.B1 ascertain that the loan required was Rs.1, 20,000/-. Complainant applied for vehicle on 27.2.2003. Ext.B1 agreement executed on 28.2.2003. Ext.A1 Customer Details of Order Booking Form reveals that complainant made 1st payment Rs.49877/- to 2nd opposite party Kalpaka Motors by cash on 13.2.03 for the purchase of vehicle. Ext.A3 1st payment receipt issued by Kalpaka Motors shows utilization of amount under various heads. It shows that on 10.3.03 the complainant paid Rs.12, 000/-towards body building. The balance amount to be paid towards body building is seen shown as Rs.18, 000/- in Ext.A3. Initial payment towards the value of the vehicle shown is Rs.40, 246/-. Admittedly vehicle was delivered on 14.3.03. Then and there complainant has complained of missing of battery box, steppiny tyre and some other parts. It can be seen that the delivery was one month after the first payment. Complainant returned the vehicle due to manufacturing defect on that day itself. That is not denied by the opposite parties. On 19.3.03 complainant issued legal notice. The vehicle delivered to complainant on 21.4.03 on which date the complainant paid Rs.18, 000/- towards body building charges. 2nd opposite party issued a receipt of payment for rs.30, 000/-. Here the issuance of receipt Rs.30, 000/- admitted by 1st opposite party. But the payment of Rs.18, 000/- is denied. In the sale certificate the date of delivery shown is 3.3.03. The satisfaction note issued on 16.4.03 recorded that the complainant has taken delivery of the vehicle on 28.2.03. The opposite party himself has no case that the vehicle was delivered on 28.2.03. But Ext.B2 recorded that the delivery is on 28.2.03.This is a part of unfair trade practice on the part of the opposite parties. Complainant’s averment that the insurance charge was paid on the expense of complainant for a period he has no ownership over the vehicle is also not denied by the opposite parties. The vehicle was delivered to complainant on 21.4.2003. But the vehicle was insured in the name of complainant from the period from 3.303 to 2.3.04. The version of opposite parties admitted that the delivery of the vehicle was not affected on 3.3.03. Then the question arose how the vehicles can be insured in the name of the complainant during that period. If it is insured that is only a part of unfair trade practice. Even according to opposite parties version complainant took delivery of the vehicle after negotiation on 16.3.03. This is clear evidence showing that there is unfair trade practice present in the dealings of opposite parties. <br /> It can be seen that the matter was once compromised and a petition to that effect filed before the Forum. Para 2 of the promised agreement “ as per the compromise, the opposite party had repaired the subject matter vehicle free of cost and paid a sum of Rs.10,000/- to the complainant on 13.4.04” shows that there was defect in the subject matter vehicle and the repair work has been done by the opposite party. Ext.B3 satisfaction note shows the vehicle was then repaired by opposite party. These facts makes it clear that the complainant should only used the vehicle for a very short period because of the deficiency in service on the part of the opposite parties. Opposite parties agreed to give Rs.10, 000/- to the complainant only because of the fact that there was deficiency on the part of the opposite parties.<br /> Opposite parties 1 and 2 have close relationship with 3rd opposite party. Ext.A1 Order Booking Form under terms and conditions for ordering purchase of Mahindra Champion Cargo Carrier/Passenger Carrier. Clause 9”Mahindra & Mahindra/Kalpaka Motors is not responsible for loss of any documents, drafts or refund orders or any delay in their receipt when sent by mail” clearly established the close relation of opposite parties 1 and 2 with 3rd opposite party. Admittedly the vehicle was seized by 3rd opposite party that too immediately after compromise. No doubt it is cheating and part of unfair trade practice. The scrutiny of entire facts available on record will show that the complainant was not able to use the vehicle except few months. The very first day of delivery the vehicle was found defective. Under the above discussed facts we hold no hesitation to show that there is deficiency of service on the part of opposite parties. <br /> The complainant suffered loss and pain. Ext.A3 shows that the 1st payment of the complainant was Rs.49, 879/-. The payment was not denied. Ext.B1(Schedule 1) item No.XI Loan amount is Rs.1,20,000/- and item No.XII Down payment is Rs.40,000/-.Advance installment recorded in item No.XIV is rs.4281/-. As per agreement there are 35 installments, complainant is seen paid only advance installment. Ext.A4 shows that he has paid Rs.30, 000/- towards body building of cowl and chassis. More over mental pain and sufferings also cannot be ignored.<br /> The complainant’s allegation that he has paid Rs.18, 000/- on 21.4.03 is not supported by any evidence. The explanation of Ext.A4 cannot be ignored. According to opposite parties the receipt of Rs.30, 000/- includes Rs.12, 500/- paid on 10.3.03, Rs.10, 500/- paid on 19.4.03(cash cheque) and balance amount of Rs.7500/- paid on 21.4.03. It can be seen recorded on Ext.A3 that the balance amount to be paid is Rs.18, 000/-. On 19.4.03 complainant paid Rs.10, 500/-. Then there is no need to pay Rs.18, 000/- on 21.4.03 towards body building. The receipt Ext.A4 shows no balance amount remains to be paid. Ext.A3 recorded balance amount to be paid is Rs.18, 000/- only. If he had paid Rs.10, 500/- on 19.4.03 the balance amount remains to be paid towards body building is Rs.7500/- only. The complainant says that he had paid Rs.18, 000/- on 21.4.03. If so the amount of receipt would have been for Rs.41, 300/-. It only reveals that non-issuance of separate receipt for the payment of Rs.10500/- is misutilised to argue otherwise since it was a cheque. It can only be believed that the amount of Ext.A4 is correct.<br /> The argument note filed by the complainant shows that the complainant assessed the loss sustained to him is Rs.87130/- and prayed for award of an amount of Rs.87, 130/- as compensation. Taken into account the entire aspect and circumstances we are of the opinion that the opposite parties are liable to pay a sum of Rs.85, 000/- to the complainant for the deficiency of service on the part of the opposite parties. The complainant is also entitled for Rs.1250/- as cost of these proceedings. Hence issue Nos.2 to 4 is answered in favour of the complainant and order passed accordingly.<br /> In the result, the complaint is allowed directing the opposite parties to pay an amount of Rs.85, 000/-(Eighty five thousand only) with accost of Rs.1250/- (Rupees One thousand two hundred and fifty only) to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite parties under the provisions of the Consumer Protection Act.<br /> Sd/- Sd/- Sd/-<br /> President Member Member<br /> APPENDIX<br /> Exhibits for the complainant <br /> A1.Copy of the order booking form dt.13.2.03<br /> A2.Copyu of the invoice receipt dt.28.2.03<br /> A3.Receipt issued to the complainant<br /> A4.Cash receipt dt.21.4.03<br /> A5.Authorised copy of the cheque issued by SBTdt.19.4.03<br /> A6.Copy of the letter dt.20.6.03<br /> A7. Letter dt.21.5.03 issued by 2nd op<br /> A8.Telegram issued to complainant dt.18.10.03.<br /> A9.copy of letter to the Ops 2 and 3 dt.20.10.03<br /> A10. & 11.AD cards<br /> A12. Registered lawyer notice issued by Ops 2 and 3.<br /> A13.Letter issued by OP2 dt.22.3.04.<br /> Exhibits fore the opposite parties<br /> B1. Loan agreement issued to complainant<br /> B2.Copy of satisfaction note dt.16.4.03<br /> B3.Copy of delivery order dt/29.2.03<br /> B4. Satisfaction note dt.13.4.04.<br /> B5.Vehicle information card dt.20.6.03.<br /> B6Letter dt.5.3.04sent to OP<br /> Witness examined for the complainant<br /> PW1.Complainant<br /> Witness examined for the opposite parties<br /> DW1.V.N.Hari<br /> DW2.Devidas.S<br /> <br /> /forwarded by order/<br /> <br /> Senior Superintendent<br /> <br /> Consumer Disputes Redressal Forum, Kannur<br /> <br />