KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.484/10

JUDGMENT DATED 27.9.2011

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU    :  PRESIDENT

SHRI.S. CHANDRA MOHAN NAIR         :  MEMBER

1.      Ajai Hari Pothen

Managing Partner,       

Kulathunkal Motors,

M.G. Road, Trivandrum.

2.      Ashok Hari Pothen

          Partner,

          Kulathunkal Motors,                         : APPELLANTS

          M.G. Road, Trivandrum.

3.      Tata Motors, World Trade Centre,

          Cuffe Parade Mumbai- 400 005

          Rep. by its Managing Director.

(By Advs. Sri. V. Krishna Menon, S. Reghukumar & others)

Vs

1.      Abraham Mathew

Manokumpazha House,

Pulickal Kavala P.O.,  Kottayam District.

( By Adv. Sri. S. Stalin)                                                

: RESPONDENTS

2.      TATA  Motors Finance Ltd.,

          DGP House 4^th Floor,

          Old Prahadevi Road,

          Worli, Mumbai – 400025. Ltd.

( By Advs. Sri. N.G. Nampoothiri & Vidya V.V.)        

JUDGMENT

SHRI.S.CHANDRAMOHAN NAIR,MEMBER

          The directions contained in the order dated 19.6.10 of CDRF, Kottayam in CC.42/05 are assailed in this appeal by the 2^nd, 3^rd and 4^th opposite parties who are aggrieved by the order wherein and whereby they are directed to pay to the complainant a sum of
Rs.4 lakh with cost of Rs.5,000/- within one month from the date of receipt of the order, failing which they are also under direction to pay interest at the rate of 10% for the amount from the date of order till realization.

          2.      The complainant has approached the Forum stating that he has purchased a Tata Sumo vehicle  from the 2^nd & 3^rd opposite parties on 2.2.05 from the show room of the opposite parties at  Kottayam and immediately after taking delivery, the vehicle developed  problems and  as directed by the  2^{nd &} 3^rd opposite parties, the vehicle was taken to the workshop of the said opposite parties and that in spite of repairs, the defects could not be rectified and he had demanded for  replacement of the vehicle and that as the opposite parties did not do the same the complaint was filed seeking for directions to the opposite parties to replace   the vehicle or refund of the price amount of Rs.6,85,079/- and to pay Rs.1 lakh as compensation along with costs.

          3.      The opposite parties 2 and 3 in their joint version admitted the purchase of the vehicle by the complainant.   But it was denied that there were defects in the vehicle particularly about the gearbox and also that it was the complainant who refused to allow the rectification of the problems if any of the vehicle. The opposite parties deputed a technician to inspect and investigate the problems alleged by the complaint.  But, the complainant was not even prepared to hand over the key and hence the opposite parties were not at fault in checking the defects as alleged by the complainant.  The 4^th opposite party contended that the vehicle was taken delivery on 2.2.05 after personally inspecting the vehicle by the complainant and getting satisfied of the performance of the vehicle.  It was also submitted that the vehicle had run 410 kms. and if  there were defects  as alleged by the complainant the vehicle could not be plied even for a kilometer.

4.      The 5^th opposite party in their version contended that the complaint was not maintainable as against them as they were only a Finance Company who extended loan to the complainant.  They prayed for the dismissal of the complaint with costs.

          5.      The evidence consisted of the affidavit filed by the complainant and opposite parties 2,3,4 & 5.  Ext.A1 to A9   were marked on the side of the complainant.  A commissioner was appointed by the forum below who filed his report as C1 and C2.  The commissioner was examined as PW1.  It is based on the said evidence that  the forum below passed the impugned order.

6.      Heard the counsel for the appellants and the 1^st & 2^nd respondents.  The learned counsel for the appellants vehemently argued before us that the Forum below had gone wrong in appreciating the facts and circumstances of the case in its correct perspective.  It is submitted by him that the Forum below ought to have dismissed the complaint on the sole ground that it was the complainant who was not prepared to hand over the key and permit the technician of the opposite parties to check whether  there were any defects in the vehicle.  He has also argued for the position that the forum below had fastened the liability for payment of Rs.4 lakhs without any evidence and that there was no deficiency in service on the part of the appellants and further that it was wrong and unjustifiable on the part of the Forum below to find fault with the 2^nd 3^rd and 4^th opposite parties and hence the appeal is to be allowed and the order of the Forum below is to be set aside.

7.      On the other hand, the learned counsel for the first respondent/complainant supported the findings and conclusions of the forum below.  It is his very case that the opposite parties had delivered a defective vehicle which would be evident from the report of the commissioner marked as Ext.C1.  Inviting our attention to Ext.C1, the learned counsel submitted that the vehicle was having defect in the clutch and gearbox assembly from the very beginning and even after a lapse of a considerable period, the same defect was still there, though the vehicle was at the hands of the 5^th opposite party.  The learned counsel has further submitted that the 4^th opposite party had connived with the 5^th opposite party in allowing the 5^th opposite party to take possession of the vehicle from the custody of the 4^th opposite party.  It is submitted that the forum below ought to have awarded the full value of the vehicle to be refunded by the opposite parties since the complainant had run the vehicle only for 410 kms. and had paid the full value  and further that he was deprived of the use of the vehicle.  Thus, arguing for the position that the order of the forum below is to be sustained, the learned counsel argued for the dismissal of the appeal with compensatory costs.

8.      On hearing the learned counsels and also on perusing the records, we find that it is the admitted case of all the parties that the complainant had purchased the vehicle in dispute from the opposite parties on 2.2.05 by paying a sum of Rs.6,85,079/-.  May be the petitioner might have taken loan from the 5^th opposite party for the purchase of the vehicle.  It is also observed that the complainant had raised so many defects in the vehicle immediately after the vehicle was delivered to him.  The complainant would say that just after 1 km’s journey from the showroom, the vehicle developed gearbox complaint.     It is also seen that even in C1 report, the same defect is reported.     It is further found that the complainant had run the vehicle only for 410 kms.  The opposite parties would argue that it was the complainant who was not prepared to hand over the vehicle to the technician of the opposite parties for checking the repairs.  However, we find that the vehicle was inspected by the Deputy Transport Inspector who has been appointed as the expert commissioner.  In his report, it is stated that the defect noted in C1 report could not be caused due to mishandling of the vehicle.  However, he has stated that the defects could be rectified.  But it is to be noted that the vehicle was taken possession by the 5^th opposite party from the custody of the 4^th opposite party.     It is found that the opposite parties had failed in keeping the vehicle under their custody and it seems that the 4^th opposite party had colluded with the 5^th opposite party for re-possessing the vehicle.   The appellants would argue that there is no liability   cast on the appellants to prevent the finance company from taking possession of the vehicle.  We are not inclined to accept the said contention of the appellants since   it is also to be noted that it was the duty of the 4^th opposite party to keep the vehicle in their custody rather than allowing the 5^th opposite party  to repossess the vehicle  even if the complainant was at fault in paying the instalments on time.    More over the opposite parties have not produced any document to show that the complainant was a defaulter.  We   find that the 4^th opposite party was in the position of a bailee and parting with the subject matter of entrustment itself is prima-facie evidence for negligence and deficiency in service.   It is seen that the 5^th opposite party is also an instrumentality of the opposite parties who extends financial assistance to the purchasers.

9.      Hence it is our considered view that the Forum below was just right in holding that there was clear deficiency of service on the part of the 4^th opposite party.   The appellants would argue that the defects could be rectified.   We do not find any substance in the said contention of the appellants.  It is seen that the vehicle was delivered   on 2.2.05 and the vehicle was in the custody of the opposite parties including the 5^th opposite party all these years.   Hence a direction to rectify the defects at this stage will not be   just and reasonable.   It is also to be noted that the vehicle was repossessed by the 5^th opposite party.  The Forum below had awarded only 4 lakhs to be returned to the complainant by the 2^nd, 3^rd and 4^th opposite parties. Since the said opposite parties were negligent and deficient in rectifying the defects on time and  keeping the vehicle under safe custody,  we do not find any   reasons to interfere with the   findings and conclusions of the forum below.

In the result, the appeal is dismissed.  The order dated 19.6.10 of CDRF, Kottayam in CC.No.42/05 is confirmed.  In the nature and circumstances of the present appeal, the parties are directed to suffer their respective costs.

The office is directed to return the LCR along with a copy of this order to the Forum below urgently.

S. CHANDRA MOHAN NAIR         :  MEMBER

JUSTICE K.R. UDAYABHANU      :  PRESIDENT