BEFORE THE  CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 28^th day of February 2018

                                                                                                          Filed on :13.05.2015

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. BeenaKumari V.K.                                                   Member.

                            C.C.No.288/2015

                                   Between

                                                         O R D E R

Sheen Jose, Member

1. The case of the complainant is as follows:

The complainant had purchased a Bajaj Auto from the 2^nd opposite party which was manufactured by the 1^st opposite party on 18.01.2014 at price of Rs.1,38,984/-.  Since there were some upholstery work and sheet work, the opposite party received a sum of Rs.10,000/- from the complainant and the complainant availed a vehicle finance from the 3^rd opposite party.  The opposite party made to believe the complainant that there is a service centre for the vehicle and the opposite party had been conducting one service centre at Thoppumpady.  Garage service was also promised by the opposite party to the complainant. On believing the assurance given by the opposite party; the complainant had purchased the above said vehicle for his livelihood. Within 3 months from the date of its purchase, the vehicle showed some problems like leakage of engine oil. Since the opposite party had closed down their service centre and garage, the complainant had no chance to repair his vehicle as per the terms of the warranty and therefore, he was forced to overhaul the vehicle through a garage in Ayyapankavu and he spent an amount of Rs.3,000/- towards repair charge.  Again the complainant had approached another service centre and he had spent Rs.10,000/- towards on that account. The complainant alleged in his complaint that the vehicle was kept idle in their service centre for 4 months and due to that reason the complainant had suffered huge financial loss in view of the deficiency in service happened on the side of the opposite party. On a average the complainant used to get Rs.600/- per day.  Accordingly there is a loss of Rs.72,000/- on that account. The vehicle was kept idle for 4 months because of defect in engine and other parts.  It was due to the defects in manufacturing of the vehicle by the 1^st opposite party. It is submitted that the opposite parties had not provided any service to the disputed vehicle as per the terms of the warranty and there was deficiency in service from the 1^st and 2^nd opposite parties and thereby they were liable to pay compensation to the complainant. The complainant also submitted in his complaint that he had failed to remit the vehicle loan instalments due to the manufacturing defects of the vehicle and due to this reason it was kept in idle in their service centre for 4 months. The complainant alleged that due to the deficiency in service happened on the 1^st and 2^nd opposite parties he had suffered a lot of inconvenience, financial loss, mental agony, hardships etc… Thus the complainant is before us seeking direction against the opposite parties to pay an amount of Rs.75,000/- towards compensation and to pay the costs of the proceedings to the complainant.  Hence this complaint.

2. Version filed by the 1^st opposite party is as follows:

It is true that the complainant had purchased the vehicle from the 2^nd opposite party which was manufactured by the 1^st opposite party. It is submitted that the complainant had purchased the vehicle for his commercial purpose and hence he is not a ‘consumer’. Further the complainant had done many businesses and other vehicles.  It is submitted that the warranty for the vehicle is one year or 40000 kms whichever occurs earlier.  In this case date of purchase on 10.01.2014.  Hence the warranty expired on 10.01.2015.  Whereas this consumer complaint is dated 11.05.2015 which is much after the date of expiry of warranty, hence consumer complaint is not maintainable in law. The warranty for the vehicle is subject to the adhering of the service schedule.  As per the terms of warranty the vehicle should have been taken for second service in 5000 kilometers or 45 days of purchase whichever occurs earlier.  Instead complainant has not brought the vehicle for second service.  The vehicle should have been brought for 3^rd service in 90 days of purchase or 10000 kilometers whichever occurs earlier.  Instead complainant has not brought the vehicle for 3^rd service.  Hence by the blatant misuse and violation of the warranty terms and conditions complainant’s vehicle became disentitled for warranty benefits. The complainant admitted that he had done economic service of the vehicle in an unauthorized service centre.  It is clear evidence for the violation of the warranty terms. The allegation in paragraph 2 of the consumer complaint except to the extent specifically admitted hereunder are false and hence denied by the first opposite party.  The allegations of non-availability of service centre is made to cover up his default and misuse of vehicle and to justify the unauthorized repair of the vehicle in way side workshops.  The vehicle history of complainants’ vehicle bearing registration No. KL 43F 3554 would clearly show that he had taken the vehicle to the authorized service centre on 06.05.2014 only for shock absorber check and on 08.07.2014 for service related jobs.  At any point of time complainant has raised leakage of engine oil, diesel fault, defect in engine and other parts.  The 2^nd opposite party had the authorized service centre at Chullikkal, Kochi till June, 2014 and the authorized service centre at Ayyappankavu, Kochi-18 till December, 2014.  Thereafter the authorized service centre was started by M/s. Steve Motors India Pvt Ltd. at Nettoor, Kochi 40 who are the authorized dealer of first opposite party.  Further M/s.Steve Motors India Pvt Ltd has the mobile service unit to attend the break down vehicle at the site. Hence non availability of the service centre is raised as a ruse to cover up the default on the part of the complainant. There is no defect much less any manufacturing defect in the vehicle of the complainant. The vehicle is still extensively been used by the complainant for his business purpose by engaging paid drivers. The allegation of manufacturing defect, non availability of service centre and idling of vehicle for 4 months are false stories put forward by the complainant only for the purpose of this case.  The estimate of Rs.75,000/- as compensation is without any basis whatsoever. This consumer complaint making the 3^rd opposite party financier in the party array is only to continue his illegal nonpayment of EMI amount to the 3^rd opposite party.  The complainant is extensively using this vehicle without any service in the authorized service centers provided by the 1^st opposite party. The complainant has no cause of action against the 1^st opposite party. The above complaint may be dismissed with compensatory cost of 1^st opposite party envisaged under section 26 of Consumer Protection Act, 1986.

3)       Version filed by the 3^rd opposite party is as follows:

The complainant himself approached the 3^rd opposite party and requested for financial facility for purchase of a three wheeler (Bajaj PASSENGER CARRIER RE 445).  Considering the said request, the 3^rd opposite party agreed to extend financial facility to the tune of Rs. 1,94,376/- (including financial charges of Rs. 68376/- for 42 months).  Later as per the mutual understanding on 28.01.2014 a loan agreement No. L3 WCOCO2901152 was executed.  The monthly instalment to be paid as per loan agreement per month was 4628/-. The contract period was for 42 months ie., (from 10.03.2014 to 10.08.2017).  The 3^rd opposite party further submitted that, at the time of execution of the loan agreement the complainant had gone through all the terms and conditions of the loan agreement and then only the complainant had signed and executed the loan agreement. The complainant is a default customer of the 3^rd opposite party. As on 19.03.2015 the complainant was in due of Rs.27,758/- towards instalment dues along with substantial over-due charges of Rs.5,302/- which is also due and payable by the complainant to the said loan account along with Rs.1,34,212/- towards 29 future EMIS. The complainant was in default of 6 EMIs hence the complainant himself is deficient from the agreed and signed terms and conditions of the loan agreement.  There was no deficiency of service or unfair trade practice on the part of the 3^rd opposite party. The 3^rd opposite party not at all concerned with the contents of the complaint, as opposite party 3 is only a financier in the present transaction and provide only a finance assistance to the complainant for purchase of the above said vehicle.  Hence not at all liable and responsible for the manufacturing defect of the vehicle. The 3^rd opposite party is not all necessary party to the present complaint. Thus it is crystal clear from the above mentioned facts that no cause of action arises to file the present false and frivolous complaint against the 3^rd opposite party.

4)       Despite service of notice from this Forum the 2^nd opposite party opted not to contest the matter for their own reasons and were not stated or explained. Evidence in this case consists of no oral evidence as adduced by the complainant and Exbt. A1 to A3 were marked on his side. Proof affidavit has been filed by the witness of the 1^st opposite party and examined as DW1. No documentary evidence adduced by the 1^st and 3^rd opposite parties.

5)       Issues came up for considerations are as follows:

1. Whether the complainant is a ‘consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986?
2. Whether the complainant has proved any manufacturing defects to the disputed vehicle?
3. Whether the complainant has proved any deficiency in service or unfair trade practice on the side of the opposite parties?
4. Whether the opposite parties are liable to pay compensation to the complainant as he prayed in his complaint?

6)                Issue No. (i)

The 1^st opposite party stated in his version para No. 2, that this consumer complaint is prima facie is not maintainable.  The complainant had purchased the vehicle for commercial purpose. Further the complainant is not a ‘consumer’ he has many business and other vehicles. The complainant is not earning his livelihood by self-employing in his vehicle as a driver; hence this consumer complaint is not maintainable in them.

7)       In all respects, except for the averments made the 1^st opposite party failed to prove that the complainant is not a ‘consumer’ under Section 2 (1) (d) of the Consumer Protection Act, 1986, with supporting evidence. Moreover the complainant specifically pleaded in his complaint page 2 para No. 2 that the complainant has purchased said vehicle for his livelihood.  In the absence of any substantial evidence and based on the above said pleading of the complainant we are of the opinion that the complainant is a ‘consumer; within the purview of Section 2 (1) (d) of the Consumer Protection Act, 1986.

8)       Issue Nos. (ii) and (iii)

The complainant had purchased Bajaj Auto from the 2^nd opposite party dealer of the 1^st opposite party.  The 1^st opposite party is manufactured and marketed by the disputed vehicle. The above said Diesel 3 wheeler vehicle purchased on 18.01.2014 at price of Rs. 1,38,984/- and the same was registered with RTO, Mattancherry with Register No. KL 43F 3554.  The complainant had availed vehicle finance from the 3^rd opposite party. The complainant alleged that the above said vehicle showed some defects within 3 months from the date of its purchase.  The vehicle had some problems like leakage and engine oil. Since the opposite party closed down their service centre and garage and the complainant approached an unauthorized service centre for servicing his vehicle and spent Rs.3000/- for curing the defects, but the defects still persist. The complainant stated in his complaint and also argued that the vehicle had suffered recurring defects due to its inherent manufacturing problem.  In the above case he had suffered huge financial loss and could not make the EMI to the 3^rd opposite party. Hence he became a defaulter to the 3^rd opposite party. He submitted that the 2^nd opposite party dealer also liable for all the above said damages occurred in the vehicle. There is a defect in the service promised by the opposite party as per the warranty of the vehicle.  The opposite party did not provide any service as per the terms of the warranty and there is a deficient service. 

8)       Exbt. A1 Retail invoice shows that the complainant had purchased the disputed vehicle on 10.01.2014 at a price of Rs.1,38,984/-. Exbt. A2 warranty card of the terms and conditions of the disputed vehicle issued by the 1^st opposite party stated that “Every possible   care and precaution has been taken to ensure quality in respect of the material and workmanship in the vehicles manufactured by us.  Bajaj Auto Limited will replace or repair, at their authorized workshop/s, free of charge, within a period of 356 days or 40,000kms, of run, covered during 356 days whichever event shall occur first, from the date of sale of the vehicle to the first owner, such part or parts thereof as may be found, on examination, to have manufacturing defect”. Exbt.A3 Retail tax invoice issued by Steve Motors dated 29.10.2015 shows that the complainant had spent an amount of Rs.13/- towards the replacement of washer in the disputed vehicle.

9)       The 1^st opposite party submitted that the complainant had not brought the vehicle for the 2^nd and 3^rd service.  The act of the complainant is violation of terms and conditions of the warranty. The complainant admitted that economy service of the disputed vehicle has done in unauthorized service centres.  This is clear violation of warranty terms. The allegation of the complainant that the opposite party closed down their authorized service center in his location is false. The vehicle history of complainant’s vehicle to the authorized service centre on 06.05.2014 only for shock absorber check as on 08.07.2014 for service related jobs.  At no point of time complainant has raised leakage of engine oil, diesel fault, defect in engine and other parts.  The 2^nd opposite party had the authorized service centre at Chullikkal, Kochi. Hence non availability of service center is ruse to cover up the default on the part of the complainant.

10)     In the above case, the complainant alleged manufacturing defects of the disputed vehicle. He argued that the occurrence of the defects in the disputed vehicle is due to its manufacturing defects.  But, we are of the opinion that the complainant could not produce any substantial evidence to prove his allegations are true and correct.  The complainant vehemently argued that the vehicle had been suffering from manufacturing defects. Even then, the complainant did not take any steps to prove his case by appointing an Expert Commissioner and to furnish his report.  The complainant produced Exbt. A1 to A3 evidence which are not sufficient to prove his case. In the absence of the evidence, we are of the opinion that the complainant’s case is not believable and we find that no manufacturing defect to the disputed vehicle is proved by the complainant and also find no deficiency in service or unfair trade practice happened on the side of the opposite parties. The complaint has miserably failed to prove any deficiency in service and unfair trade practice on the side of the opposite parties.

11)     Issue No. (iv)

          Having found the issue Nos. (ii) and (iii) against the complainant, we are not inclined to consider and to decide issue No. (iv). 

          In the result, we find that that the complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open Forum on the day 28^th day of February 2018.

                                                                   Sd/-Sheen Jose, Member

                                                                    Sd/-Cherian K. Kuriakose, President

                                                                    Sd/-Beenakumari V.K., Member

                                                                                                Forwarded by Order

                                                                             Senior Superintendent

Date of dispatch    :

                             By Hand      :

                             By post        :

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:          Nil     

Depositions  :

          PW1  :        

          DW1  :         Manoj M.K.

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