By. Smt. Bindu. R, President:

                This consumer complaint is filed stating that the marketing agents of the 2^nd Opposite Party approached the Complainant on information about the intention of the Complainant to purchase a new vehicle had offered many promises, and fascinated by the promises of the agents of 2^nd Opposite Party, the Complainant had given an advance amount for the purchase of the vehicle.  An amount of Rs.7,00,000/- was arranged as loan which was taken on the promises of the 2^nd and 3^rd Opposite Party’s agents that there will not be any hidden charges and assured spot collection and low interest etc.  The vehicle is delivered to the Complainant at the office of the 2^nd Opposite Party.  The Complainant further states that an amount of Rs.7,92,581/- was paid to the 2^nd Opposite Party as price of the vehicle. It is also stated that more than Rs.2 Lakhs was spent for other expenses including extra fittings and thus a total of Rs.10,00,000/- is incurred for the vehicle.

            2.  While using the vehicle it began to show major and minor engine problems which was rectified by the 2^nd Opposite Party.  On 18.07.2017 the vehicle was suddenly stuck on the road at Nedumbala while the vehicle was driving through Meppadi Trikkaipetta road.  On information the 2^nd Opposite Party came to the spot and took the vehicle to their service centre in a lorry for which Rs.2,000/- was charged as loading  charges. Thereafter the Complainant met the 2^nd Opposite Party in person and it was told that the engine of the vehicle is totally damaged and the work will be started soon on getting approval from the Insurance Company for which they obtained signatures in some printed papers stating that they will forward the same to the Insurance Company.  It is also informed that the vehicle will be taken to Calicut where they have service station. The Complainant contacted the 2^nd Opposite party and it was told that the vehicle was taken to service centre at Calicut and the Complainant insisted for the contact details of Calicut service station and on getting the details, the Complainant himself enquired at the service centre of the Opposite Party at Calicut about the progress of the work of the vehicle. Finally on 26.10.2017 when the Complainant asked the Opposite Party about the delivery of the car, it was told that the vehicle shall be delivered on that day but later told that the vehicle was taken back to Calicut since it was struck at the ghats.  The Complainant states that the 2^nd Opposite Party thereafter had not even attended the calls of the Complainant.  The Opposite Party had supplied a defective and inferior quality vehicle to the Complainant after accepting a huge amount towards the price of the vehicle.  The vehicle supplied by the Opposite Party is having major complaints which are due to the inherent manufacturing defect of the vehicle which is not repairable or curable.  The supply of defective vehicle itself is deficiency of service and unfair trade practice.  (At this juncture it is to be specified here that the 1^st Opposite Party is deleted from the party array and 2^nd Opposite Party is the authorised dealer at Wayanad, the 3^rd Opposite Party is the financier of the vehicle and 4^th Opposite Party is the manufacturer and the 5^th Opposite party is the dealer at Calicut).

            3.  The stand taken by the Complainant at this stage is that the Complainant is regularly paying the loan instalment and he is not in a position to pay the loan instalment for a vehicle which is still under the custody of the 2^nd Opposite Party.    The Complainant had not remitted the amount after 18.07.2017 and states that it is due to the reasons furnished above. 

4.  Thereafter the Complainant alleges that 2^nd and 4^th Opposite Parties are liable to pay compensation of Rs.1,00,000/- for the mental agony and to restrain the 3^rd Opposite Party from taking action against the Complainant and for that the Complainant filed this consumer complaint along with other reliefs.

            5.   Upon notice from the Commission all the Opposite Parties came forward and filed individual versions.  For the convenience of detailing the contents in each of the version, the gist of the version is stated below as follows:-  1^st Opposite Party was subsequently deleted from the party array.   2^nd Opposite Party in their version states that the complaint will not lie on law or on facts and 2^nd Opposite Party is not the authorized dealer, it is the branch of Eram Motors Private Limited, Feroke, Kozhikode.  The vehicle KL-12-L-306 is purchased from Eram Motors Private Limited, Feroke Post, Chungam, Kozhikode which is evident from the RC book of the vehicle.  The averment of the Complainant that the marketing agents of the answering Opposite Party approached the Complainant and offered many promises are false and hence denied.  In fact he Complainant had walked in the office at Chungam Kozhikode on 17.10.2016 and booked the car.  Since the consumer is a permanent resident of Wayanad, the registration was made in Kalpetta Regional Transport Office. The finance was arranged by the 3^rd Opposite Party.  2^nd Opposite Party has no role in arranging the loan with the 3^rd Opposite Party. The 2^nd Opposite Party has also denied that the Complainant has paid amount to the 2^nd Opposite Party.  Further 2^nd Opposite Party denied the details furnished by the Complainant like that the vehicle was given to the 2^nd Opposite party for repair on detection of major and minor engine complaints.  In fact the vehicle was given to the 2^nd Opposite Party only for 1^st free service after being plied a distance of 1683km on 27.01.2017.  Further the statement that the vehicle was suddenly stuck on the road is also incorrect.  It was stopped due to an accident on 17.07.2017.  The road at Nedumbala on Meppadi Trikkaipetta is a fully damaged road unfit for vehicle riding where the bottom side of the oil sump hit on the projected portion of the damaged road and thereby the drainnut of the vehicle had broken and the oil drained out and also thereafter the driver had tried to start the vehicle which caused damage to the vehicle. The Complainant had availed the facility of road assistance of Mahindra and Mahindra and taken the vehicle to Eram Motors, Kozhikode.  The statement that the 2^nd Opposite Party has charged Rs.2,000/- for this is false.  Complainant knows very well that the 2^nd Opposite Party do not have facility for accident service. In fact the Complainant visited Eram Motors work shop at Calicut on 08.08.2017 where the Complainant was told that the damage occurred to the vehicle is due to the accident and at that time the Complainant asked about the possibilities of getting insurance claim to pay the repair charges and signed on the papers for claiming insurance.

            6.  The work could not be started since the Complainant has not consented to pay the repair charges and there was no information regarding the payment of service charges by the Insurance Company.  Circumstances being so, 2^nd Opposite Party states that they are in no way responsible for any claim or relief to the Complainant.

            7.  3^rd Opposite Party states in their version that they have financed for vehicle KL-12-L-306 on its hypothecation and in the agreement the value of the vehicle as per contract is Rs,9,60,900/- and the financial charges will come around Rs.2,69,900/-.  The total number of instalments fixed for repayment is 57.  The Complainant is a chronic defaulter of the above vehicle loan and 3^rd Opposite Party stated that the alleged defect of the vehicle etc are mere allegations to escape from the loan liability with the 3^rd Opposite Party.  The 3^rd Opposite Party further states that, all the other allegations raised by the Complainant are false and the Complainant is legally liable to pay the liability and therefore prayed to the Commission to dismiss the complaint filed by the Complainant.

            8.  The 4^th Opposite Party filed their version stating almost similar contentions of that of the 2^nd Opposite Party.  According to the 4^th Opposite Party, the vehicle of the Complainant while driving through Nedumpala on Meppady Trikkaipetta road on 17.07.2017, a fully damaged road unfit for vehicular traffic, the bottom side of the vehicle ie the oil sump hit on the projected portion of the damaged road and the drain nut thereon had fallen down draining out the engine oil.  The vehicle was driven for some distance without engine oil which caused seizing of the engine.  There was neither any manufacturing defect nor any deficiency of service from the part of the Opposite Party.  Therefore the 4^th Opposite Party also prayed to dismiss the complaint. 

            9.  The 5^th Opposite Party who is subsequently impleaded on the basis of the contention taken by the 2^nd Opposite Party that the authorised dealer is 5^th Opposite Party and not the 2^nd Opposite Party.   The 5^th Opposite Party filed version stating that the vehicle in question is purchased from the 5^th Opposite Party and 2^nd Opposite Party is the branch of 5^th Opposite Party.  The allegation of the offers given by the marketing agents etc are denied.  The Complainant paid Rs.7,92,581/- to the 5^th Opposite Party towards the price of the vehicle.  The allegation of extra amount of Rs.2 lakhs spent for other expenses are denied.  The Complainant knew that the vehicle had been taken to Calicut ie to the body workshop of 5^th Opposite Party.  Neither the 2^nd Opposite Party nor the 5^th Opposite Party told the Complainant that the vehicle will be returned within 2 weeks.  The Complainant has not given consent for repairing the vehicle.  The Complainant never contacted the 5^th Opposite Party and has not come to the 5^th Opposite Party’s workshop as alleged.  The Complainant never paid the amount and the Insurance Company has not estimated the damage of the vehicle.  5^th Opposite Party never informed the Complainant that the vehicle would be delivered on 26.10.2017.  Neither the 5^th Opposite Party nor the 2^nd Opposite Party informed the Complainant that the vehicle struck in ghat region and therefore the vehicle could not be delivered.  There was no engine complaint at or after delivery.  The vehicle was given for  1^st free service on 27.01.2017.  As per records, there was no minor or major engine complaints before or after the free service.  The problem occurred due to the accident and since the oil was drained out, the engine got struck.  There is no manufacturing defect and the 5^th Opposite Party has not committed any deficiency of service or unfair trade practice.  The vehicle supplied to the Complainant was a perfect vehicle without any defect.  Hence prays for dismissal of the complaint.

            10.  Complainant was examined as PW1 and Ext.A1 to A15 (As per proof affidavit it is A1 to A14) were marked from the side of the Complainant and OPW1 was examined and Ext.B1 to B2 were marked from the side of Opposite Parties.

            11.  The Commission has made a thorough verification on all the evidences and documents produced from either side and also probed in to the facts and circumstances of the case.  The allegation of the Complainant is that the vehicle supplied by the Opposite Party is having an inherent manufacturing defect and for that reason the instalment of loan availed for purchasing the vehicle is not paid by the Complainant.  On the other hand the case of the Opposite Party is that the vehicle was driven by the Complainant through a fully damaged road unfit for vehicular traffic on 17.07.2017 and as a result of that, the bottom of the vehicle hit on the projected portion of the road and thereby the oil sump of the vehicle became defective and thereby the oil was drained out and even after that the vehicle had been driven and thereby the damage occurred to the vehicle.

            12.  In the above circumstances, the Complainant had not moved the Commission to get the appointment of an Expert to conduct an inspection of the vehicle so that the Complainant could have established the real reason for the defect of the vehicle which the Complainant had not done.  The oral evidence of the Complainant also does not reveal any specific proof regarding the allegation in the complaint.  Ext.A7 is the Tax Invoice dated 27.01.2017 which shows the vehicle is produced for 1^st free service and not for any other repair or other works.  There is absolutely no evidence to show the actual defect of the vehicle when it was taken to the workshop on 18.07.2017.

            13.  On the other hand the Opposite Parties have stated the reason for the damage of the vehicle is due to the ride being made by the Complainant through a damaged road which caused damage to the oil sump and as a result of which the oil is completely drained out and thereafter the Complainant had driven the vehicle and thereby the vehicle became defective is also not fully substantiated by the Opposite party. 

14. Since the initial burden is on the Complainant to establish his case, the evidence is to be considered in that angle.

            15.  The following are the points to be assessed and evaluated at this stage by the Commission:-

1. Whether the Complainant has been sustained any loss or deficiency of service from the side of Opposite Parties..?
2. If so, what is the quantum of compensation to be awarded..?
3. Cost of the Proceedings?

16.  Point No.1:-  The Complainant has not established the reason for damage except mere statement that the damage of the vehicle is due to an inherent manufacturing defect.  This has not been established by the Complainant in any way, even by moving the Commission to get the appointment of an Expert to inspect the vehicle and to file report.  Moreover, the Complainant had not established deficiency of service from the side of the Opposite Parties with any valid evidence except mere allegation in the complaint.  Hence Point No.1 is found against the Complainant.

17.  Point No.2 & 3:-  Since Point No.1 is found against the Complainant, we do not have analysed Point No.2 & 3 and hence the complaint is liable to be dismissed.

In the result, the complaint is dismissed without costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 27^th day of May 2023.

Date of Filing:-15.11.2017.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              C. Muhammed.                               Coolie.

Witness for the Opposite Parties:-

OPW1.          Vijeesh. D.                                        Body Shop Manager, Eram Motors

                                                                                    Calicut.

Exhibits for the Complainant:

A1.                  Vehicle Order Taking Form.                                Dt:25.10.2016.

A2(a).                        Invoice Form 8B.                                                    dt:31.10.2016.

A2(b).                        Invoice.                                                                     Dt:31.10.2016.

A3.                  Invoice Form 8B.                                                    dt:04.11.2016.

A4.                  Receipt.                                                                     Dt:07.11.2016.

A5.                  Motor Vehicle Insurance Cover Note.             

A6.                  Cash Receipt.                                                           Dt:22.11.2016.

A7.                  Tax Invoice.                                                              Dt:27.01.2017.

A8.                  Copy of Group Health Policy Certificate of Insurance.

A9.                  Copy of Registration Certificate.

A10(a).          Installment Structure.

A10(b).          Receipt.

A11.               Receipt.                                                                     Dt:18.07.2017.

A12.               Demand Notice.                                                     Dt:28.02.2018.

A13.               Lawyer Notice.                                                        Dt:06.02.2018.

A14.               Warranty Information and Maintenance Guide.

Exhibits for the Opposite Parties:-

B1(a).             Repair Order.                                                          Dt:08.08.2017.

B1(b).                        Manual Repair Order Form.                               Dt:08.08.2017.

B2.                  Vehicle History.                 

PRESIDENT   :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                                          Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-