BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 12/12/2007

Date of Order : 30/10/2012

Present :-

Shri. A. Rajesh, President.

Smt. C.K. Lekhamma, Member.

C.C. No. 380/2007

Between

And

Date of filing : 13/12/2007

C.C. No. 381/2007

Between

And

Date of filing : 21/10/2008

C.C. No. 396/2008

Between

And

C O M M O N O R D E R

A. Rajesh, President.

1. 1. 1. In the above complaints, though the complainants are different, the opposite parties are the same. The averments of the parties are also more or less the same. So, we are disposing off these complaints by this common order considering C.C. No. 380/2007 as the leading case.

          

2. The facts leading to these complaints are as follows :-

The complainants had purchased passenger autorickshaws by the brand name of ‘Parinda’ from the 1^st opposite party, which was manufactured by the 2^nd opposite party at a price of Rs. 1,42,322.99. Subsequent to the purchase, the 1^st opposite party closed down the showroom without notice. Because of the closure, the complainants could not carry out the defects of the vehicle, because they had nobody to approach. Moreover, the spare parts of the vehicle were not available in the market as averred. The loan of the vehicle fell behind, since they could not ply the same. Thus, the complainants are before us with a prayer to direct the opposite parties to refund the price of the vehicle or to rectify the defects of the vehicle confirming the availability of spare parts and service centre.

3. The pleadings of the 1^st opposite party is as under :-

The 1^st opposite party was the dealer of the 2^nd opposite party.
It is stated that altogether he had purchased 22 autorickshaws and out of which 13 were sold the remaining are kept idle in his house. Subsequently, 2^nd opposite party failed to supply the spare parts. Therefore, due to non co-operation of 2^nd opposite party and the financial crisis, the 1^st opposite party was forced to close down the Show room, the 2^nd opposite party is answerable to the complainants in indemnifying them in relation to any defects with the vehicle.

4. The contentions of the 2^nd opposite party are as follows :-

The complainants have filed their complaints at the instance of the 1^st opposite party. The specific defect, flow, shortcoming or deficiency is not alleged with the vehicles. In February 2008, the 2^nd opposite party’s service engineers voluntarily met the complainants and attended to the vehicles. The complainants have neither requested to replace the vehicle nor demanded any spare parts. The complaints are devoid of any merit and liable for dismissal.

5. In C.C. No. 380/2007, the complainant’s representative was examined as PW1 and Exts. A1 to A6 were marked on their side. The 1^st opposite party was examined as DW1 and Exts. B2 to B4 were marked on his side. No oral evidence was adduced by the 2^nd opposite party. Ext. B1 was marked on his side. In C.C. No. 381/2007, the complainants were examined as PWs 1 to 3 and Exts. A1 to A11 were marked on their side. Exts. B1 and B2 were marked on 2^nd opposite party’s side. In C.C. No. 396/2008, no oral evidence was adduced by the complainant. Exts. A1 to A4 were marked on his side. Exts. B1 and B2 were marked on the side of  2^nd opposite party. The opposite parties adopted their evidence adduced in C.C. No. 380/2007 in the other cases.

6. The Forum vide order dated 30-09-2009, allowed the complaints by directing the opposite parties to refund the price of the vehicles to the complainants after deducting depreciation. The 2^nd opposite party preferred Appeal before the Hon'ble Kerala State Consumer Disputes Redressal Commission against the order of this Forum. The Hon'ble State Commission vide order in Appeal Nos. 251, 252 and 253/2011 dated 25-03-2011 passed the following order :

“The Forum is directed to give notice to all the parties and dispose off the matter on merits after permitting the parties to adduce evidence in support of their rival contentions, if they desire. The matter will stand posted before the Forum on 04-05-2011.”

7. In compliance of the above order, the parties were called upon to adduce their respective evidence. The 1^st opposite party remained absent, during the proceedings in spite of receipt of notice from this Forum. At the instance of the 2^nd opposite party vide order in I.A. No. 73/2012 in C.C. No. 380/2007, I.A. No. 74/2012 in C.C. No. 381/2007 and I.A. No. 88/2012 in C.C. No. 396/2008, this Forum appointed an expert commissioner to examine and report the condition of the vehicles involved in these complaints. The expert commissioner duly submitted his report. The expert commissioner was examined as DW2 and his report was marked as Ext. C1. Thereafter, heard the counsel for the complainant and the 2^nd opposite party.

8. The points that emanated for determination are as follows :-

1. Whether the opposite parties are liable to pay the price of the vehicles to the complainants?

2. Whether the opposite parties are bound to rectify the defects of the vehicles and to supply its spare parts?

3. Whether the complainants are entitled to get compensation and costs of the proceedings from the opposite parties?

9. Point No. i. :- It is not in dispute that the complainants purchased 'parinda' passenger autorickshaw from the 1^st opposite party which was manufactured by the 2^nd opposite party at a price of Rs. 1,42,322.99 each. Admittedly, the 2^nd opposite party has given warranty for 180 days or 15000 Kms. from the date of purchase of the vehicle whichever is earlier. The 1^st opposite party has given warranty upto 50000 Kms. Evidently, the complainants could ply the vehicles under dispute for 1000-23000 Kms. Only. The defects of the vehicles have been caused within the warranty period and continue thereafter. The expert commissioner appointed at the instance of the complainants filed Ext. C1 report in this Forum, which reads as follows :

“I have inspected the vehicle of Smt. Ambika Reg. No. KL39-7638 (Parinta Autoricksha) on 22-03-2012 at 3.30 P.M. at Maradu.

Following are the specification of the vehicle at the time of inspection.

Chassis No. : KM 0207000683 P

Engine No. : AF06M9027085

Odometer reading : 4685.

Delivery date : 14/06/2007.

Matters sought to be inspected by the 1^st & 2^nd opposite parties.

1. Inspect and report the present condition of the Auitoricksha/Parinta passenger carrier? Find out and report that the vehicles were having any defects?

The present condition of the vehicles is :

• During the time of my inspection, the vehicle was in fully dead condition so I am not able to do the road test.

• Most of the body and chassis parts are in rusted condition.

• The gear cable is in broken condition.

• The brake parts are fully damaged condition.

• Speedometer cable is in broken condition.

• Silencer is in rust condition.

2. Inspect and report the defects including manufacturing defects of the above vehicle? If any such defects is there, clarify its cause/reason either by manufacturing or non usage for pretty long period or rash usage of vehicle?

3. Inspect and report such other matters sought to be inspected and reported during the time of inspection.

• Poor mileage, 18-20 (customer complaint)

• the vehicle is almost rusted condition.

• The tyres are fully damaged.

• Unavailability of parts and service (customer complaint).

• Three services done by the dealer.

4. Find out there is any unauthorized alteration that affects the performance of the vehicle?

• 1.  

• The rear suspension springs are replaced with another one. This alteration may cause uneven tyre wear. This is not a major alteration and will not affect the performance of the vehicle (same kind of three wheelers are doing the same for better ride comfort).

x x x x x x

I have inspected the vehicle of Sri. Latheef bearing Reg. No. KL7 BF-4065 (Parinta Autorickshaw) on 22/03/2012 at 4 p.m. at Kadavantara.

Following are the specification of the vehicle at the time of inspection :

Chassis No. : KM 1206000340 P

Engine No. : AF 06 K 9025899

Odometer reading : 1432

Delivery date : 14/05/2007

Matters sought to be inspected bay the 1^st and 2^nd opp.parties.

1. Inspect and report the present condition of the Autoricksha/Parinta passenger carrier? Find out and report that the vehicle were having any defects?

The present condition of the vehicles is :

• During the time of my inspection, the vehicle was in fully dead condition so I am not able to do the road test.

• Most of the body and chassis parts are in rusted condition.

• The gear cable is in broken condition.

• The brake parts are fully damaged condition.

• Oil leak presents from the engine gaskets.

2. Inspect and report the defects including manufacturing defects of the above vehicle? If any such defects is there, clarify its cause/reason either by manufacturing or non usage for pretty long period or rash usage of vehicle?

3. Inspect and report such other matters sought to be inspected and reported during the time of inspection.

• The vehicle is almost rusted condition.

• The tyres are fully damaged.

• Poor mileage, 18-20 (Customer complaint)

• Lack of service and parts (customer complaint).

4. Find out there is any unauthorized alteration that affects the performance of the vehicle?

• There is no such alteration that affects the performance of the vehicle.

x x x x x x x

I have inspected the vehicle of Sri. P.M. Ayoobkhan bearing Reg. No. KL 41-9882 (Parinta Autorickshaw) on 22/03/2012 at 12.50 p.m. at Kalady.

Following are the specification of the vehicle at the time of inspection :

Chassis No. : KM 0207000689 P

Engine No. : AF 06 M 9027098

Odometer reading : 1290

Delivery date : 10/05/2007

Matters sought to be inspected by the 1^st and 2^nd opp.parties.

1. Inspect and report the present condition of the Autoricksha/Parinta passenger carrier? Find out and report that the vehicle were having any defects?

The present condition of the vehicles is :

• During the time of my inspection, the vehicle was in fully dead condition so I am not able to do the test drive.

• Most of the body and chassis parts are in rusted condition.

• The gear cable is in broken condition.

• The brake parts are fully damaged condition.

• Speedometer cable broken condition.

2. Inspect and report the defects including manufacturing defects of the above vehicle? If any such defects is there, clarify its cause/reason either by manufacturing or non usage for pretty long period or rash usage of vehicle?

3. Inspect and report such other matters sought to be inspected and reported during the time of inspection.

• Poor mileage, 18-20 (Customer complaint)

• The vehicle is almost rusted condition.

• The tyres are fully damaged.

• Front glass is broken (Company not able to supply the same)

   

4. Find out there is any unauthorized alteration that affects the performance of the vehicle?

• The rear suspension springs are replaced with another one. This alteration may cause uneven tyre wear. This is not a major alteration and will not affect the performance of the vehicle (same kind of three wheelers are doing the same for better ride comfort).

x x x x x x x

I have inspected the vehicle of Sri. Abu bearing Reg. No. KL 41-7550 (Parinta Autorickshaw) on 22/03/2012 at 11.30 A.M. at Edathala.

Following are the specification of the vehicle at the time of inspection :

Chassis No. : 1106000325

Engine No. : AF 06 K 9025913

Odometer reading : 2332

Delivery date : 20/02/2005

Matters sought to be inspected bay the 1^st and 2^nd opp.parties.

1. Inspect and report the present condition of the Autoricksha/Parinta passenger carrier? Find out and report that the vehicle were having any defects?

The present condition of the vehicles is :

• During the time of my inspection, the vehicle was in fully dead condition so I am not able to do the road test.

• Most of the body and chassis parts are in rusted condition.

• The gear cable is in broken condition.

• The brake parts are fully damaged condition.

2. Inspect and report the defects including manufacturing defects of the above vehicle? If any such defects is there, clarify its cause/reason either by manufacturing or non usage for pretty long period or rash usage of vehicle?

3. Inspect and report such other matters sought to be inspected and reported during the time of inspection.

• Poor mileage, 18-20 (Customer complaint)

• The vehicle is almost rusted condition.

• The tyres are fully damaged.

• Unavailability of parts (customer complaint)

• Frequent complaints (mechanical defects).

   

4. Find out there is any unauthorized alteration that affects the performance of the vehicle?

• 1.  

• The rear suspension springs are replaced with another one. This alteration may cause uneven tyre wear. This is not a major alteration and will not affect the performance of the vehicle (same kind of three wheelers are doing the same for better ride comfort).

x x x x x x x

I have inspected the vehicle of Sri. Vinod Vijayan bearing Reg. No. KL 39 - 4889 (Parinta Autorickshaw) on 22/03/2012 at 2.30 A.M. at Eroor.

Following are the specification of the vehicle at the time of inspection :

Chassis No. : KM 1206000373

Engine No. : AF 06 L 9026487

Odometer reading : 925

Delivery date : 09/02/2007

Matters sought to be inspected by the 1^st and 2^nd opp.parties.

1. Inspect and report the present condition of the Autoricksha/Parinta passenger carrier? Find out and report that the vehicle were having any defects?

The present condition of the vehicles is :

• During the time of my inspection, the vehicle was in fully dead condition so I am not able to do the road test.

• Most of the body and chassis parts are in rusted condition.

• The gear cable is in broken condition.

2. Inspect and report the defects including manufacturing defects of the above vehicle? If any such defects is there, clarify its cause/reason either by manufacturing or non usage for pretty long period or rash usage of vehicle?

3. Inspect and report such other matters sought to be inspected and reported during the time of inspection.

• Poor mileage, 18-20 (Customer complaint)

• The vehicle is almost rusted condition.

• The tyres are fully damaged.

• Front glass is broken (Company not able to supply the same)

• Unavailability of parts (customer complaint)

4. Find out there is any unauthorized alteration that affects the performance of the vehicle?

• The rear suspension springs are replaced with another one. This alteration may cause uneven tyre wear. This is not a major alteration and will not affect the performance of the vehicle (same kind of three wheelers are doing the same for better ride comfort).

Inspection Summary

All vehicles are suffering from some complaints like gear cable failure, brake leakage and break failure, Rear axle joint failure, poor mileage. Such complaints are reported with in a short period from the date of delivery/with in hundreds of kilometers. So these defects are due to the poor quality of the components or manufacturing problem. The Dealer or manufacturer not able to cure these problems due to unavailability of parts and service facility. Suspension spring alteration I have noticed during inspection (Rear spring changed with another one). This alteration not a serious problem and this type of alterations are normally doing in the same kind of three wheelers for better ride comfort.

The present condition of the vehicles is very sympathetic. Chassis and body are rusted about 40-70%. Some of the mechanical components are defective and deteriorate due to its manufacturing problem and no long usage of vehicle. So that vehicle is not able to repair and retain to its original condition. Frequent complaints and lack of service and spare parts leads to the present condition of the vehicles.”

9. Point Nos. ii & ii. :- The 2^nd opposite party alone filed objection against Ext. C1 report. During evidence, DW2 the expert commissioner categorically stated before the Forum that the defects of the vehicle could not be rectified by repairs and major components of the vehicle are fully damaged, though he deposed that all of them are not due to manufacturing defect. The expert commissioner opined that the complainants could not maintain the vehicle properly due to non-service of the same for the lack of adequate spare parts. The 2^nd opposite has no timely answer to this contention. Considering the evidence of DW2 and the facts and circumstances in the above cases, we cannot hold that the defects of the vehicles can be rectified in tune with the decision of the Hon'ble Apex court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (2006) 4 SCC 644. The Hon'ble Supreme Court held that the manufacturer is only liable to replace the defective part of the vehicle not the vehicle as such. In view of the above, we are only to hold that the complainants are entitled to get the price of the vehicles refunded.

10. Point No. iii. :- Since the primary grievance of the complainants has been met squarely and adequately, the order for compensation is unwarranted.

11. In the result, we partly allow the complaints and direct as follows :-

1. In C.C. No. 380/2007, the opposite parties shall jointly and severally refund the price of the vehicle to the complainant in toto. In that event, the complainant shall return the vehicle to the opposite parties simultaneously at the cost of the opposite parties.

2. In C.C. No. 381/2007, the opposite parties shall jointly and severally refund the price of the vehicles to the complainants. In that event, the complainants shall return the vehicles to the opposite parties simultaneously at the cost of the opposite parties.

3. In C.C. No. 396/2008, the opposite parties shall jointly and severally refund the price of the vehicle to the complainant in toto. In that event, the complainant shall return the vehicle to the opposite parties simultaneously at the cost of the opposite parties.

The above orders shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till realisation.

Pronounced in the open Forum on this the 30^th day of October 2012.

Sd/-

A. Rajesh, President.

Sd/-

C.K. Lekhamma, Member.

Forwarded/By Order

Senior Superintendent

A P P E N D I X

In C.C. No. 380/2007 :-

Complainant's Exhibits :

Opposite party's Exhibits :-

In C.C. No. 381/2007 :-

Complainant's Exhibits :

Opposite party's Exhibits :-

In C.C. No. 396/2008 :-

Complainant's Exhibits :

Opposite party's Exhibits :-

Depositions :: Nil

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