IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 28th day of December, 2018
Filed on 10. 03. 2016
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
in
CC/No.78/2016
Between
Complainant:- Opposite party:-
Sri.Afsal 1. Mahindra
Puthenveedu, Mahindra & Mahindra Ltd
Mullackal Ward Gateway Building
Alappuzha Appolo Builder
(By Adv. M. Jayaram) Mumbai-400 039
(By.Adv. Azeem Mohammed)
2. Mahindra
Kaithavana
N.H. 47, Road
Alappuzha-688 003
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case based on a Consumer complaint filed u/s 12 of the Consumer Protection Act.
1. The averments in the complaint short are as follow:-
The complainant is an Autorikshaw driver by profession. On 21/8/2015 he purchased a Autorikshaw bearing No. KL - 04- AH- 3472 and has been plying same at Alappuzha town and earning his liverly hood. He purchased the above vehicle from the 2nd OP dealer at the time of initially plying itself Autorikshaw showed certain complaints. Hence he produced the Autorikshaw before the service centre attached to 2nd OP and told them regarding the defects of the vehicle. The major complaints regarding the vehicle was there was excess sound and vibration that the engine happened to be stopped while running the vehicle there was starting trouble to the vehicle and the mechanic from the workshop used to come and start the vehicle, that the body of the vehicle was got rusted within one month of its purchase. After hearing the complaint the Op return the vehicle with an under taking that defects was cured within one months but the above complaint remind the vehicle and due to the heavy sound and vibration the front glass was happened to be broken and several parts of the body happened to be rusted even during the warranty period. Complainant used to informed the details of the dealer and then and there who was admitted such defects are there in the vehicle. Complainant has been earning his lively hood by plying the vehicle but, due to the defect in the vehicle he is unable to ply the same regularly and earning his lively hood. As the vehicle is having defect in the engine the opposite parties are bound to take back the Autorikshaw and return its price or to substitute a new vehicle. The complainant further prays to pay Rs. 25,000/- as compensation and Rs. 5000/- as costs of the proceedings.
2. In response to the notice the 1st Opposite party entered appearance and contested the matter. Though the notice was served 2nd opposite party remain ex parte.
1st opposite party raised many fold contentions in the written version which in short are as follows:-
3. The complaint is not maintainable either in law of in facts. The complainant is having no cause of action against 1st OP. There is no deficiency in service on the part of the 1st Op. Since the 1st Op is situated outside territorial jurisdiction of the Forum no complaint have been filed against 1st Op without obtaining leave of the Forum and the present complaint is a shear abuse of process of the Forum and has been filed with mala fide intention to avail unjust enrichment at the cost of the opposite party. The 1st Op is a duly registered company dealing in marketing sale and servicing of Mahindra Vehicle through its dealers across India. It used to provide warranty to its customers for certain period on the vehicle sold by such dealers upon such terms and conditions. Mahindra vehicle are well known all over India and World for its impeccable features and high safety standards which ensures trouble free safe driving experience to the user of the vehicle. The vehicle delivered to the complainant herein was also passed stringent and quality test as per high quality requirement and safety standards laid by Mahindra and Mahindra Ltd, Govt of India and only thereafter delivered to the 2nd Op who is the authorized dealer of onward sales to the complainant like customers. The complainant is not a consumer under the Consumer Protection Act. No defects as claimed by the complainant has been reported to the 1st opposite party. The life and durability of the paint and body rusting of every vehicle differ due to several external factors such as water and supplements used to the vehicle, the manner of usage , weather conditions exposure to industrial waste long exposure to sun and light etc. There is no continuous defect to the vehicle. The vehicle was repaired at the authorised workshop under due care and under warranty. The vehicle does not have any inherent manufacturing defect within 5 years from the date of purchase. The vehicle had also plied 1500 Kms. If the vehicle was having defects as alleged in the complainant it could not have plied 15000 kilometres within the short period. No expert report is made available to prove the manufacturing defects of the vehicle. Complainant has not sustained any mental agony and pain. Therefore the complainant is not entitled to get any compensation.
4. In view of the above pleadings the points that arise for consideration are:-
1) Whether there is any deficiency in service or unfair trade practice on the side
of the Op No. 1 and 2?
2) Whether the complainant is entitled to get relief sought for the complainant?
3) Reliefs and cost.?
5. Evidence on the side of the complainant consist of oral evidence PW1 and PW2 and Ext.A1 series to A3 documents out of which Ext.A1 series photographs are marked subject to objection. MO1 Pen drive has also been marked. The commissioner has been examined as CW1 and got marked Ext.C1 and C2 reports.
6. The contesting opposite party No.1 has not adduced any evidence.
Heard both sides in details.
7. Points No. 1and 2:-
For avoiding repetition of discussion of materials these two points are considered together. The complainant would allege fourfold allegations in the 1st page of the complainant in respect of the vehicle manufactured by 1st opposite party and supplied by 2nd opposite party. First allegation is that there is excess sound and vibration. Complainant himself could suggest the remedies to cure the above defect. According to him the governor of the vehicle has to be removed. The 2nd allegation is that while running the engine would abruptly made off. 3rdly there is starting trouble and same is a common phenomena and the mechanic from the workshop used to come and start the vehicle, 4thly the body of the above vehicle was got rusted within one month of its purchase. However the complainant has no such allegations in the proof affidavit. The complainant is the owner of the vehicle and the person who purchased the same directly from the 2nd Op. He is also the person who has been driving the vehicle but he has not stated any of the above four defects raised in the complaint during evidence stage. Instead of he has stated in Para 3 and 4 of the proof affidavit that he has stated before Forum only true facts that. he has sustained financial loss as well as mental agony that the complainant knows that the Forum will pass an order by understanding the mental condition of the complainant and has to award compensation to the tune of Rs.2,20375 and cost Rs. 25000/-. However during cross examination by the learned counsel for the contesting 1st opposite party the complainant would admit that he has not produced any materials to show that the above Autorikshaw is having any manufacturing defect. PW1 would further admit that even now the vehicle is under his custody and he has been plying the same that he purchased the vehicle on 20/8/2015 and till date of giving statement the vehicle has been plied 40,000Km that he has not produced any documentary evidence to show that the vehicle has become defective and has repaired the vehicle at any point of time that at the time of filing the complaint the vehicle has covered 30,000 Kms. But the complainant has concealed the above materials facts that the vehicle is even now running and it has covered 30,000/- Kms within one year. It is to be point out that he has utilized the vehicle maximum by plying about 30,000/- Kms within one year of its purchase. PW1 has also not produced any material to show that he has repaired the vehicle at any point of time before lodging the present complaint.
8. It is true that the complainant has produced one Pen drive which is got marked as MO1 .But there is no facility available at the Forum to know the content of the pen drive. The complainant would claim that it would contain the conversation between himself and one mechanical engineer. The said mechanical engineer has not been examined this case. It is true that the photographs marked as Ext.A1 series would indicate that the front glass of the Autorikshaw has been broken and some part of the body has become rusted. There is nothing on record to show that it was due to any mechanical defect neither of the vehicle nor due to the alleged excess vibration or sound. If the vehicle has been kept exposed to sun and rain there is chance getting body of the vehicle rusted especially in Alappey district which is lying very adjacent to Arabian sea.
9. The oral evidence of CW1the Expert commissioner coupled with Ext. C1 commission report also would not support the claim of the complainant that the vehicle is having any manufacturing defect as claimed by the complainant. In Ext.C1 report the expert commissioner has stated that he has not noted any excess sound or vibration, there was no defect to the engine governor that when he was plying the vehicle the engine of the vehicle has not made off automatically and there was no starting trouble at all. However the Expert commissioner in C1 report has noted that front glass of the vehicle was found broken but he has ruled out the possibility of breaking the glass due to heavy vibration. However the expert commissioner has noted that certain parts at the platform and behind the driver’s seat were got rusted, but the commissioner has not noted that rust affected on any part of the outer body. There is chance of entering salty water in the plat form which may cause rusting of the platform.
10. It is true that the 2nd commissioner was appointed and his report has been marked as C2. The 2nd commissioner is none other than the department head of the Automobile, Carmel Polytechnic, Alappuzha. It is clear from C2 report that he has inspected the vehicle in the presence of the complainant, 1st and 2nd opposite party and at the time of inspection he has found that the vehicle so far run73,855.2 kilometre. As a part of the inspection he caused to run the Autorikshaw for about 3 kms. The said commissioner has pointed out in Ext.C2 that there was no excess vibration or sound while starting the vehicle but when the accelerator is applied excess vibration came to his notice and detailed examination he found that 3 foundation bolt were found loss end and that is a cause for the excess vibration of the engine. The only remedy to cure the above defect is to tighten the bolts. The 2nd commissioner has not noted any complaint to the engine governor but has noted that the vehicle has been getting only 35 Km/Hour speed and there is chance of having defect to the fuel injection pump of the vehicle. However he has not noted that the engine of the running vehicle has made off at any point of time. But he has noted that gear selector mechanism has not been properly functioning that therefore the changing of gear was difficult. The 2nd commissioner has also noted in C2 report that there is starting trouble and there is only low tension to the compression return spring. He has also noted rust affected area inside the vehicle and not outside the vehicle and has also noted that the front and back glass of the vehicle has been broken all these defects has been noted on 17/10/17 which is two and odd years of the purchase of vehicle and also after plying the vehicle about 73,855 Kms. In view of the report that the vehicle has run 73,855 Kms within Two and odd years, it is clear that the complainant has been using the vehicle excessively and there is chance of causing all these defects including rusting if the vehicle while using the same continuously during rainy season especially when it is used in Alappuzha which is a coastal area. None of the two commissioners have noted any inherent manufacturing defect in the autorikshaw. The fact that it was run 73,855 Kms. within two years itself would indicate that the Autorikshaw is having no manufacturing defect nor having any other substantial defect as alleged in the complaint and that the complainant has obtained maximum utility of the vehicle in the 1st two years of its purchase.
11. It is true that PW2 has deposed in support of the complainant but on going through the entire version of PW2 we are of the view that her version is not believable and acceptable . The evidence of this witness would show that she is a receptionist at the sales depot of Mahindra franchise at Alappey. Now she is not in service at that sales depot. However she is having only here say information regarding the alleged defects of the vehicle. The service centre is located in another place. Usually when the vehicle is brought to 1st service the owner of the vehicle used to narrate the defects of the vehicle at the service centre and the same would find a place in the job card but the job card relating the service done on the vehicle by the complainant is not made available in this case. According to PW2 the complainant has alleged defects of the vehicle which was brought to 1st service. But there is no chance of meeting PW2 when the vehicle was brought to 1st service since the service station is not located at the vicinity of the sales depot and both institution are functioning at different places. Complainant has no case in his complaint or in the proof affidavit that the 2nd Op has agreed to replace the vehicle by new one due to defects alleged by him. But according to PW2 when the defects of the vehicle was brought to the notice of the service manager, he has undertaken to replace the vehicle. Firstly he agreed to replaced the chassis and subsequently agreed to replace the vehicle itself. But PW1 has no such case and therefore PW2 is to be treated as “More loyal than the King” as contented on behalf of the 1st opposite party.
12. It is further to be pointed out that there is nothing on regard to indicate that PW2 was an employee of the 1st or 2nd opposite party. Even according to PW2 her name has not been stated in any of the registers kept at the office of the opposite parties. Even if it is believed that she was a receptionist she was having connection only with the sales of the vehicle and not regarding affairs of the service station which is located at a faraway place. If the complainant is having any grievance regarding the vehicle the same has to be lodged at the service station where there are receptionist service manager and defects are being noted in the job card provided at the service centre. On evaluation the entire evidence of the PW2 we are of the view that her evidence is not reliable and convincing expect having any corroborative documentary evidence. In the circumstances we have no hesitation to discard oral evidence of PW2.
13. In view of above discussed materials it is clear that complainant has utterly failed to establish that the Autorikshaw manufactured by the 1st opposite party and purchased from the 2nd OP is having any inherent manufacturing defect. Hence the prayer of the complainant that the autorikshaw should be replaced by a new Autorikshaw after plying the same for about 73,855kms within 2 years is not considerable at all especially when no manufacturing defect has been pointed out by any of the expert commissioners and that the minor defects noted by them such as rusting on the plat form and inner and outer side of the Autorikshaw braking of front and back glass after running about 75000 kms cannot be ordered to be cured or replaced by the manufacturing company or service station without payment of any service charges especially when the complainant has no case that the defects pointed out by him were noticed within the warranty period. In the circumstances we find no merit in the case put forwarded by the complainant. The complainant has failed to prove any deficiency in service or any unfair trade practice on the part of opposite party 1 &2 as alleged. Hence the complaint is only to be dismissed.
14. These 2 points answered accordingly:-
Point No.3
In the result the complaint stands dismissed. The parties are directed to suffer their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 28th day of December, 2018.
Sd/- Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sheela Jacob (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Afsal.P.K (Witness)
PW2 - Reshmi.M.Nair (Witness)
Ext.A1 - Photographs(Subject to Objection)
Ext.A2 - RC Book
Ext.A3 - Retail Invoice dtd. 21/08/2015.
MO1 - Pen drive.
Ext.C1,C2&Cw1 - Commission Report & Manoj.M (Witness)
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Br/-
Compared by:-
