KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.699/2016

JUDGEMENT DATED: 18.04.2023

(Against the Order in C.C.No.94/2012 of CDRF, Kottayam)

PRESENT:

PETITIONERS/APPELLANTS:

(by Adv. Jaison Palayil)

Vs

RESPONDENTS:

(by Adv. K.K.M. Sheriff)

(by Adv. P. Fazil)

JUDGEMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

Appellant was the complainant in C.C.No.94 of 2012 before the Consumer Dispute Redressal Commission, Kottayam (District Commission for short).  The District Commission as per order dated 09.09.2016 dismissed the complaint.  Aggrieved by this order appeal has been filed. During the pendency of the appeal the appellant died and his legal heirs were impleaded as additional appellants number 2 to 4.

2.       The allegations in the complaint are that on 30 .7. 2010 he had booked a mini  tipper lorry Model "SK 407/31 Tipper Chasis BS11TTPS" manufactured by the first opposite party from  the second opposite party, the authorized dealer for a sum of Rs.7,30,000/-(Rupees Seven Lakh Thirty Thousand)  for which advance of Rs.10,000/-(Rupees Ten Thousand) was  paid.  On 12.08.2010 he further paid Rs.41,500/-(Rupees Forty One Thousand Five Hundred) and the balance amount was availed under hypothecation loan scheme with Tata Motors Finance.  The vehicle was delivered at a belated stage and when it was brought before the RTO for registration the request was denied on the reason that the type of body shown in the sales certificate was different with those entered in other connected documents.   After filing an affidavit registration was granted. But when the complainant conducted a trial run of the vehicle he realized that it is not fit to be used as a Tipper Lorry as the vehicle lacks stability and efficiency of the brake.  Due to the poor quality of the paint rust was also formed.   So on 13.09.2010 a written request was issued to the opposite parties for replacement of the vehicle. There was grave violation in the terms of the purchase on the part of the opposite parties in delivering a different vehicle than that ordered.   The Complainant had ordered vehicle model "SK407/31 TIPPER CHASIS BS11TTPS" but the opposite parties delivered the model "SK407EX/31/CAB BS11TTPS".   Since the complainant had to repay the loan he was constrained to ply the vehicle.   Due to lack of standard of performance, accident occurred while operating the vehicle.  When the vehicle was put in use up to 5000km tyres got damaged and the same were replaced.  Functioning of the lifting of the Lorry was also defective.  No speed Governor was fixed.  The complainant would seek for replacement of a new vehicle or to return Rs.7,30,000/-(Rupees Seven Lakh Thirty Thousand) as the price paid for the vehicle.

3.       Opposite party No 1 filed version on the grounds that the complaint is not maintainable as it does not come within the definition of a “consumer dispute”.   The vehicle does not belong to the complainant and hence he has no locus standi to seek for a relief. The vehicle was used for commercial purpose and there are no materials to find that the vehicle has been used for his livelihood.  The allegation that he booked for" SK40731 TIPPER Chassis BS11 TPS" and the opposite parties delivered different model" SK407 EX/13/CAB/BSS11TTPS"is wrong as both these models are one and the same.  As per the ARAI approval the model is "SK407/31 TIPPER CHASIS BS11TT PS".  There was a clerical error in the invoice issued by the opposite party which was corrected before getting the vehicle registered.  The maximum loading capacity of the Lorry is 6250kg but on 09.04.2011 when the vehicle was brought before the service centre the vehicle was seen loaded with a total weight of 10090kg.  So it could be seen that the defect if any caused is on account of the overload and not due to any manufacturing defects.  Opposite parties are not bound to fix a Speed Governor.   There is no deficiency of service or unfair trade practices.

4.       The second opposite party also filed version with contentions identical to those raised by the first opposite party and the third opposite party did not file any version.

          5.       Evidence consists of the testimonies of PWs 1&2, Exhibits A1 to A11 and C1 on the side of the complainant and for the opposite parties DW1 and B1.

6.       Heard both sides, perused the appeal memorandum and the records received from the District Commission.

7.       The Complainant would allege that the opposite parties had supplied a different model vehicle from that ordered by him.  In paragraph No.6 the complainant had pleaded this.  But the complainant has not produced any materials to suggest that there was any change in the model supplied to him.  The complainant would place reliance upon a correction made by the opposite party in the purchase invoice on account of the objection raised by the Road Transport authority.  According to the opposite party there was a clerical mistake in the invoice which was corrected by filing an affidavit before the registering authority.  The affidavit in this regard does find a place as Exhibit
A9.  According to the opposite party both the models mentioned by the complainant are one and the same, so the question of supplying a different model lorry does not arise.   The complainant placed reliance upon exhibit A10, a direction issued by the Transport Commissioner on the basis of a letter for approval of registration by the manufacturer.   In A10 the first and second items are the two models of the disputed vehicle.   According to the complainant he had ordered “SK407/31 TIPPER CHASSISBS11 TT PS” but supplied with "SK407EX/31 CAB BS11TT PS".   But exhibit A10 does not show two different models.   According to the complainant A10 can be taken as evidence to prove the falsity of the contention raised by the opposite party that two different models are not available.  Exhibit A10 does not show the model suggested by the complainant.  So the stand taken by the complaint regarding the change of model does not appear to be correct.   According to the complainant he had given a written demand for replacement of the vehicle on 13.09.2010.  But no tangible evidence has been produced before the Commission to prove the genuineness of such a complaint. Though the complainant had deputed an expert witness to inspect the vehicle, he never made any attempt to furnish the requisite documents to prove his case that the vehicle delivered to him was a different model from that ordered.  At the time of examination of the expert the complainant had caused production of Exhibit A14 (a), the ARA1 Certificate of the concerned vehicle but the complainant did not furnish the same to the Expert, PW1 at the time of inspection.  When a plea of unfair practice is alleged the initial burden is on the complainant to prove it, but he could not produce any evidence for such a contention. 

8.       The expert witness had given evidence that the defects noticed on the vehicle might have been caused due to transportation of overload and also by keeping the vehicle idle. There is also evidence adduced through DW1 that the disputed vehicle was brought at the service centre on 09.04.2011 with a load of 10090kg which is excess by 4000 kg to the permissible load.   So the opposite parties could bring evidence to prove the improper handling of the vehicle by the complainant.   The case of the complainant is that he was aware about the alleged act of the opposite parties in delivering a vehicle different in model from that ordered by him, but it could be seen that the complainant was operating the vehicle for a period of more than two years without any complaint.  This conduct of the complainant would also indicate the lack of bonafides in his stand taken at a belated stage about the supply of a different vehicle.  If his case is a true one he could have refused to receive the same.  So there is merit in the stand taken by the opposite party that the company had delivered the vehicle as per the order placed by the complainant.

          9.       Having due regard to the entire materials on record we find that the case set up by the complainant as false.  The evidence tendered by the expert witness would also show that the defects occurred to the vehicle were formed due to faulty handling  in taking overload or by keeping it idle and hence no liability could be fixed on the opposite parties.  The District Commission had appreciated the evidence in its correct perspective and reached at a proper conclusion.  Therefore the appeal is liable to be dismissed.

In the result the appeal is dismissed.  Since the original appellant is no more it is found that the parties shall bear their respective costs.

SL