D.O.F. 31.03.2011

D.O.O. 31.05.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                   :        Member

Dated this the 31^st day of May, 2012.

C.C.No.110/2011

T.V. Sudhakaran,

S/o. Krishnan,

Thoyadan Veetil House,                                       :         Complainant

Aniyaram (P.O.)

Chokli (Via), Kannur.

(Rep. by Adv. K. Ajith Kumar)

1.  Kalpaka Motors (P) Ltd.,

     R.V. Building,

     Thazhe Chovva, Kannur

2.  Kalapaka Motors (P) Ltd.,

     P.V. Samy Road,                                              :         Opposite Parties

     Calicut-2.

(OP 1 &2 rep. by Adv. E. Mohd. Shafi)

3.  M/s. Mahindra & Mahindra Ltd.,

     34/1128, Balakrishnan Menon Road,

     Edappally (P.O), Cochin-682 024

(Rep. by Adv. Sunil C.G.)

O R D E R

Smt. K.P. Preethakumari, Member.

This is a complaint filed U/s 12 of Consumer Protection Act for an order directing the opposite party to take back the damaged vehicle with effect and avail a new one instead of the same or to direct 3^rd opposite party to return back an amount of `1,68,000 to the complainant along with `25,000 as compensation and cost.

The case in brief of the complainant is that he had purchased  a Mahindra G10 goods vehicles from 1^st opposite party on 18.02.2010 for an amount of `1,68,000 which has paid with the assistance of a loan availed from Indus Ind Bank.  The E.M.I. to be paid is `5,150 and now five instalments are due.  The first service of the vehicle was effected on 03.03.2010 and it has the defect of loosening clutch belt.  Thereafter within a short period the second major complaint was appeared that the connection of wheel and chassis was disconnected at the time of running the vehicle.  The service men from the Vatakara Centre repaired the vehicle after 8 days. But after 5 Km running, again the wheel was disconnected from the chassis.  The servicemen came and welded the same for temporarily and again take the vehicle to Vatakara Service Station and after a long period of 12 days, the vehicle was returned to the complainant.  About one month after the vehicle shown a complaint of starting trouble and not in a position to run the same without the assistance of helpers.  The vehicle was return to the complainant after 15 days with a representation that there will not have any further complaint and all the complaints were checked and repaired and proper service was done.  But after two weeks the functioning of clutch system failed due to mechanical defect. The defect was cured after 13 days and again on 10.11.11 the vehicle was fell down due to broken of gear box case and the entire oil in gear box was lost and the functioning of reverse gear was lost.  Due to the repeated mechanical and other manufacturing defects, the complainant was suffered so much mental pain and financial loss.   The loan availed from the financier was not repaid properly and the financier was started their legal proceedings. Within 10 months of purchase the vehicle was repaid six times.  So the applicant issued a lawyer notice to opposite parties.  But the vehicle was not repaired properly due to deficiency of service of opposite parties.  Hence the complaint.

In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version.  The 1^st and 2^nd opposite party admits that the complaint had purchased a vehicle Mahindra G10 from 1^st opposite party on 18.02.10.  The complainant had availed first free service for his vehicle on 06.03.2010 at Vadakara Service Centre of opposite parties and as part of service, stopper cable adjusted, reverse cable adjusted, wheel bearing play checked, oil in brake reservoir checked, body bolds tightened, all lights born and wiper checked, and parking height adjusted etc were done. On completion of the work the complainant was satisfied.  Again the vehicle was brought at Vadakara Service Centre on 03.05.2011 for general check-up and the works namely air filters cleared, cables checked and adjusted, clutch play adjusted, reverse cable adjusted, break oil checked, leaf spring bush inspector etc.  The complainant had brought vehicle again on 02.06.2010 for general check up and done services and the complainant was satisfied with these work.  Again on 14.08.2010, the vehicle was brought for general check up and services and on that day also service was done to the satisfaction of complainant.  On 11.11.10, the complainant brought the vehicle with complaints of gear box broken, Front block absorber checked, key ignition checked and gear cable tight checked etc and the opposite parties rectified the details satisfactorily and after the completion of work opposite parties had informed the complainant through telephone on 04.12.10 and thereafter several time to take delivery of the vehicle, but he was giving vague reply and thereafter opposite parties sent notice on 23.12.10, to take delivery. But the complainant had not responded to the letter or had not taken delivery of the vehicle. A cheque for `4200 had been issued to the complainant by opposite party on behalf of 3^rd opposite party as a compensation for the period for which the vehicle was kept idle for repair till the new gear box from 3^rd opposite party was obtained, but he refused to accept the same.  This shows that the complainant does not want to take back the vehicle with an ulterior motive to avoid repayment of loan.  The allegation that the vehicle has mechanical and other defect is not correct and unsustainable and is totally denied by opposite party.  It is also incorrect to say that the vehicle was repaired 6 times and consumed very valuable and precious time of more than 2 months etc are made only for the purpose of the case.  The complainant is not a consumer, since he has purchased the vehicle for commercial purpose.  The opposite parties issued reply to the notice of complainant and no negative attitude on the part of opposite party.  There is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed.

3^rd opposite party also filed version, contending that the complainant is not a consumer since he had purchased the vehicle for commercial purpose. The 3^rd opposite party never had any transactions with the complainant and there is no privity of contract between opposite party and the complainant.  The 3^rd opposite party admits that the complainant had purchase a Mahindra G 10 goods vehicle from 1^st opposite party.  The 3^rd opposite party was not aware of the loan and the amount paid by the complainant.  The vehicle had already run 13,135 Kms and hence it cannot be said that there had no income from the vehicle.  This opposite party had eventhough no direct knowledge regarding service and defect, it is learned that the complainant had approached 3^rd opposite party for the services and some minor repairs and the same was repaired satisfactorily.  So there is no merit in the contention that the vehicle has inherent manufacturing defect.  The vehicle was brought to the service centre on 11.11.2010 at 13,042 Kms with the complaint of gear box and the problem was developed due to the operational abuse of vehicle, improper shifting of gears and overloading.  The vehicle was made in a perfect working condition by 14.12.10.  As per the policy, 2^nd opposite party issued 9 cheque for `4,200 as compensation for the delayed period.  It is learnt that the complainant refused to accept the cheque.   It is incorrect to say that the vehicle has starting trouble and some other problem.  On 02.06.10, at `5200 Kms for third service, the complainant brought vehicle to the service centre and service was done to the satisfaction of the complainant.  On fourth free service also the opposite parties done service satisfactorily and the complainant had taken delivery of the vehicle.  The 3^rd opposite party have done all services to the satisfaction of the complainant and the vehicle has no manufacturing defect.  The complainant has been filed suppressing the terms and conditions of warranty.   The 3^rd opposite party is always ready and willing to provide the service as per the terms and conditions of warranty.  So the complainant is not entitled to any relief and 3^rd opposite party has not obligation.  So the complaint is liable to be dismissed.

Upon the above contention the following issues have been raised for consideration.

1.     Whether the complainant is a consumer?

2.     Whether there is any deficiency of service on the part of opposite party.

3.     Whether the complainant is entitled to any relief?

4.     Relief and cost.

The evidence in the above case consists of the oral testimony of PW1, PW2, DW1 and DW2 and Exts. A1 to A7 and B1 to B9.

Issue No.1 :

          The opposite parties in the above case contended that the complainant is not a consumer as per the Act, since the vehicle was purchased for commercial purpose. The complainant contended that the vehicle was purchased for his livelihood.  The opposite parties have not produced any documents to show that the complainant has other means for his livelihood.  So we are of the opinion that the vehicle was purchased by the complainant is used not for making large profit but for making his day to day bread.  So we hold the view that the complainant is a consumer and hence issue No.1 was found in favour of the complainant.

Issue No.2 to 4 :

          The further case of the complainant is that the vehicle has inherent manufacturing defect and because of this on six occasions after purchase the vehicle was repaired, and even now the defects were not cured and hence he was not in a position to use the vehicle and thereby the instalment amount of loan was in due.  In order to prove his case he has produced invoice dated 18.02.2010, cash receipts dated 02.06.2010, 18.03.2010, copy of lawyer notice, acknowledgment cards, legal notice and reply notice etc and PW1 and PW2 has also examined.  The opposite parties also produced vehicle information sheets 6 in numbers. The Ext.A1 invoice substantiate the case of the complainant that he has purchased a Mahindra G 10 goods vehicle on 18.02.2010 for an amount of `1,68,500.  The complainant further contended that the vehicle has manufacturing defect and cannot be used for the intended purpose.  The specimen copy of owner’s manual shows that this vehicle has one year or 60,000 Kms warranty from the date of delivery of the vehicle to the original purchaser.   The Exts. A2 and A3 along with B1 to B6 shows that the required service was effected to the vehicle as directed by the manufacturer.  As per Ext.B6, which is dated 11.12.10 shows that the vehicle has run only 9081 Kms and on that day it is seen written as gear box case broken, front shock absorber check, along with some other complaint.  Similarly Ext.B1 to B5 also shows that the vehicle has so many defects.  The odometer reading that the vehicle was plied only 9081 Kms also substantiate that the complainant has not used the vehicle much eventhough it is a goods vehicle. The opposite parties admits in their version that they had issued a cheque for `4200 by 2^nd opposite party on behalf of 3^rd opposite party as a compensation for the period for which the vehicle was kept idle for repair till the new gear box from 3^rd opposite party was obtained and the complainant had refused to accept the same. This averments also substantiate the case that the vehicle has repaired due to defective gear box.  Moreover the facts and circumstances of the case also shows that the vehicle is defective soon after the purchase and the complainant was not able to enjoy the fruit of his venture of purchasing a vehicle by availing loan.  So we are of the opinion that there is unfair practice and deficiency of service on the part of opposite parties for which they are liable to compensate the complainant by replacing the vehicle with a defect free one along with `1000 as cost of the vehicle and order passed accordingly.

          In the result the complaint is allowed directing the opposite parties to replace the vehicle with a new one or to refund `1,68,500 the invoice value of the vehicle with `1,000 as cost of the proceedings within 30 days of receipt of the order, otherwise complainant can execute the order as per the provisions of Consumer Protection Act.

          Dated this the 31^st day of May, 2012.

Sd/-                             Sd/-

                        President                       Member

APPENDIX

Exhibits for the Complainant

A1.  Invoice copy dated 18.02.2010.

A2.  Cash receipt dated 02.06.2010.

A3.  Cash receipt (2 in numbers).

A4.  Lawyer notice dated 28.11.2010.

A5.  Acknowledgment card(3 in numbers).

A6.  Legal notice dated 13.01.2011.

A7.  Letter dated 01.02.2011.

Exhibits for the opposite parties

B1.  Job Card dated 06.03.2010.

B2.  Job Card dated 03.05.2010.

B3.  Job Card dated 02.06.2010.

B4.  Job Card dated 14.08.2010.

B5.  Job Card dated 14.10.2010.

B6.  Job Card dated 11.11.2010.

B7.  Authorisation letter.

B8.  Job Card dated 17.09.2010.

B9.  Owner’s manual.

Witness examined for the complainant

PW1.  Complainant

PW2.  Vinod C.H.

Witness examined for opposite party

DW1.  Praseeth C.P.

DW2.  Sriraj T.C.

                                                                      /forwarded by order/

                                                                   SENIOR SUPERINTENDENT