By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Complainant is aggrieved that the MINI DOR pickup purchased from 2nd opposite party is having inherent manufacturing defects. He prays for (i) replacement of the vehicle or refund of Rs.2,30,891/-. (ii) Compensation of Rs.one lakh towards loss, hardships and mental agony and cost of Rs.5000/-.<br /> 2. First and second opposite parties filed separate versions. First opposite party who is the manufacturer contended that there is no privity of contract with the complainant and that complainant has purchased the vehicle for commercial purpose. Both opposite parties disputed the jurisdiction of this Forum to try the complaint and denied that vehicle has any manufacturing defect.<br /> 3. Evidence in this case consists of the affidavits filed by complainant and 2nd opposite party. Exts.A1 and A2 marked on behalf of complainant. Ext.B1 marked on the side of opposite party. Ext.C1 is the report of the Commissioner. Due to vacancy in the post of President in 2003, there was no sitting of the Forum for a long time. This case first came up before us on 6-8-2007 and was finally heard on 6-2-2008. the points that arise for consideration are:- <br /> <br /> (i) Whether this Forum has jurisdiction to try this complaint? <br /> (ii) Whether complainant is a consumer?<br /> (iii) Whether opposite parties have committed any unfair trade practice?<br /> (iv) If so reliefs and costs.<br /> <br /> 4. Point (i) and (ii):- Opposite parties dispute the jurisdiction of this Forum on the ground that the vehicle was purchased from Kozhikkode district. Complainant contends that opposite party has branches and is conducting business as 'Pathikkal Tempo' within the territorial jurisdiction of this Forum. Opposite party has not specifically denied this contention. Further the vehicle was registered under the Registration Authority of this District. For the above reasons we hold that this Forum has jurisdiction to try the complaint. Even though opposite parties contend that complainant has purchased the vehicle for commercial purpose, complainant has pleaded and proved by affidavit that he is an unemployed youth possessing light motor driving licence and the vehicle was purchased for his livelihood. We hold that complainant is a consumer.<br /> 5. Point (iii):- The purchase of vehicle from 2nd opposite party is admitted. According to complainant the purchase value of the vehicle is Rs.1,66,666/-. Out of this complainant paid Rs.51,666/- and the balance of Rs.1,15,000/- was advanced by Ashok leyland finance. The amount to be repaid to financier is Rs.1,59,225/-. That complainant spent Rs.20,000/- for body works, insurance, registration charges. Thus complainant claims to have invested Rs.2,30,891/- for the vehicle and claims for refund of the same. Opposite party No.2 disputed this amount and submits that the amount received as consideration for the vehicle is only Rs.1,66,666/-. Ext.A1 is the schedule of finance and Ext.A2 is the receipt issued by 2nd opposite party for payment of Rs.51,000/-. In Ext.A1 the purchase value of the vehicle as Rs.1,66,666/- which is the admitted consideration by 2nd opposite party. The vehicle was taken delivery on 14-3-2002 and registered as KL-10/N 1796. Complainant is aggrieved that the vehicle has the following manufacturing defects.<br /> (i) Vehicle was not having the required pulling.<br /> (ii) It was not having the capacity to run in reverse gear even with<br /> less than the allowed load.<br /> (iii) Engine ceased to function while trying to take the vehicle in <br /> reverse gear.<br /> (iv) The vehicle does not have the offered mileage of 22 KM/litre.<br /> (v) Water in the radiator dried up even though there was no leaking.<br /> <br /> Complainant states that he promptly reported for periodical services but the condition of the vehicle became worse. Due to the above defects complainant could not ply the vehicle with required load and he lost many trips and incurred monetary loss. He contends that the vehicle is practically idle. On application made by complainant to inspect the vehicle. Sri. K.M. Shaji, Motor Vehicle Inspector, Tirur, was appointed as expert commissioner. Ext.C1 is the report of the commissioner. As per Ext.C1 the vehicle was inspected on 22-7-2003. Commissioner has inspected each defect alleged by complainant. After inspection and necessary tests Commissioner reports the vehicle to have the first two defects alleged by complainant. Regarding the remaining defects the Commissioner has reported the functioning of the vehicle to be normal. Thus apart from the evidence tendered through affidavit Ext.C1 report corroborates the consistent case of the complainant that the vehicle does not have the required pulling capacity to carry load in forward or reverse movement of the vehicle. The vehicle is MINIDOR – 3 wheeler – pickup which is intended to carry load. So the defect of the vehicle not having sufficient pulling when carrying permissible load is a major defect. Opposite party refutes the allegations of manufacturing defect. According to opposite party the vehicle is having warranty for 180 days or 7500KM whichever comes first. During this period opposite party offers free services. Complainant has not produced the warranty card. Both sides for reasons best known to them have failed to produce any document relating to free services of the vehicle. As per evidence tendered through affidavit opposite party No.2 denies that complainant has attended free service and contends that the vehicle therefore was not properly maintained by complainant and the warranty has become void. But this contention is inconsistent with the pleading in Para 9 of reply version of opposite party No.2. In para 9 of the version 2nd opposite party admits that complainant attended all four free services. That repairs were carried out and complainant executed satisfactory note each time. That on 4-9-2002 complainant came for paid service with a complaint of engine misfiring and low mileage. The mileage was checked and found to be normal and complainant again executed satisfactory note. That the vehicle had already covered 7981 K.M. by then. These pleadings are not supported by any evidence. Thus complainant has established and proved case in his favour. We find that the alleged vehicle has inherent manufacturing defect. The sale of a defective vehicle by opposite parties amounts to unfair trade practice. This point found in favour of the complainant.<br /> 6. Point (iv):- Much thrust was laid by counsel for opposite party that the defects if any can be rectified by service of the vehicle. The consumer herein has purchased the vehicle for his livelihood by availing finance. When the vehicle is defective, it not only causes dissatisfaction but monetary loss and hardships. Complainant claims for total refund or replacement of the vehicle. This complaint was filed after the warranty period. The vehicle was inspected by the Commissioner after one year 4 months of it's purchase. Even then the commissioner has noted that the vehicle has sufficient mileage and that in normal road conditions the vehicle could be driven satisfactorily. The maximum pay load of the vehicle as per Ext.B1 is 600kg. The defect in pulling capacity of the vehicle was noted when the vehicle was driven on the road with steep gradient and carrying load in it. The vehicle was found to run easily on this gradient without load. So we consider that the defect if any can be repaired by proper service, and so grievance of the complainant can be redressed by adequate compensation.<br /> 7. Apart from the vague affirmation in the affidavit by complainant there is no reliable evidence that the vehicle is kept idle. Complainant has failed to bring out what is the distance/kilometers covered by the vehicle at the time of inspection or at least at the time of filing the complaint. The contention by opposite party that the vehicle has covered 7981 kilometers on 4-9-2002 is not supported by any cogent or reliable evidence. We are unable to infer from the available evidence that the vehicle is totally in idle condition. Further though complainant contends that he had to attend free and paid service no evidence is brought on record as to what is the repair done and the expenses incurred. For the above reasons we do not consider that complainant is entitled to replacement of vehicle or total refund of purchase price of vehicle. We hold that a compensation of Rs.35,000/- would serve justice to complainant.<br /> 8. In the result complaint allowed, and opposite parties are jointly and severally liable to pay a sum of Rs.35,000/- (Rupees thirty five thousand only) to the complainant along with costs of Rs.2000/- within three weeks from the date of receipt of copy of this order.<br /> <br /> Dated this 23rd day of February, 2008.<br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 and A2<br /> Ext.A1 : Schedule of finance<br /> Ext.A2 : Receipt for Rs.51,000/- dated, 26-2-2002 issued by 2nd <br /> opposite party to complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1<br /> Ext.B1 : Booklet. <br /> Court document marked : Ext.C1<br /> Ext.C1 : Report of the commissioner dated, 22-7-2003.<br /> <br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br />