BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                              : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 163/2009  Filed on 02/07/2009

ORDER DATED: 25/10/2022

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT: 

This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

1. The case of the complainant in short is that on 28/05/2007, the complainant purchased a Vikram Passenger autorickshaw from the 1^st opposite patty through a hire purchase agreement executed in favour of 2^nd opposite party by availing a loan of Rs.1,14,000/-.  An initial payment of Rs.15,000/- was paid by the complainant to the 1^st opposite party prior to the hire purchase agreement.  At the time initial payment and at the time of purchase of auto rickshaw the 1^st opposite party promised and made the complainant to believe that the service and repairs of the vehicle will be carried out in a special workshop- and the spare parts of the vehicle will be made available to the complainant as and when necessary.  After the purchase the vehicle become defective and showing breakdown almost all days.  From the initial stage of its purchase the vehicle was showing manufacturing and mechanical defects.  At last the complainant could understand that there was no workshop and service station for the Vikram Passenger auto and no spare parts available in any spare parts shop.  The 1^st opposite party in connivance of the 2^nd opposite party in order to make illegal gain end just for the sake of their business gain and for making undue profit out of it told the complainant false statements knowing full well aware about the truth and actual facts.  Due to non-availability of spare parts and no workshop for service and repair on 04/07/2008 the complainant surrendered the vehicle to 1^st opposite party.  Since there was no service station or authorized service station for repair of the vehicle arranged by the 1^st opposite party prima facie there is deficiency in service.  The vehicle delivered by the 1^st opposite party under the hypothecation arrangement of 2^nd opposite party was defective in its manufacturing and mechanical aspects and there was no spare parts available in market for the vehicle sold and financed by the opposite parties.  The quality and service of the vehicle was in a ‘zero’ level grade.  The guarantee promised was not fulfilled by the 1^st opposite party.  The surrender persuaded by opposite parties itself is an unfair trade practice.  The 3^rd opposite party being the manufacturer of the vehicle is arrayed as necessary party for adjudicating the matter. Hence this complaint.
2. The 1^st opposite party entered appearance and filed version denying the allegation of unfair trade practice and deficiency in service raised by the complainant against the opposite parties.  The 1^st opposite party is the dealer of the 3^rd opposite party company and is running a full-fledged servicing centre with stock of spares and company trained servicemen attached to the 1^st opposite party at Trivandrum.  Whereas the diesel auto rickshaw manufactured by the 3^rd opposite party from 1978 onwards is the most successful vehicle in India.  The purchase of auto rickshaw by the complainant on 28/05/2007 is admitted.  Whereas it is also an admitted fact that the warranty period for the said vehicle is 6 months from the date of purchase.  So this paint filed after a long gap of around more than a year and six months is not at all maintainable either in law or on facts.  This Forum cannot entertain this complaint at all.  The vehicle had never shown any complainants at the initial stage of purchase or after half a dozen services which will be evident from the documents if they were produced before this Forum.  So no annexures have been produced by the complainant.  That also goes to show that the complainant was plying the vehicle without any problem even after the complaint had been filed and the vehicle had underwent services properly from this opposite party.  This opposite party is still running a full fledged servicing centre with all the spare parts at the same place from where this complainant used t service his vehicle.  Non availability of spare parts and service deficiency on the part of this opposite party had been alleged purposefully and intentionally so that the complaint can be admitted and their illegal purpose could be served.  Another complainant in CC.87/2007 had given very good remarks in writing which this opposite party failed to produce in that case.  Good remarks in writing giben to a dealer like the present opposite party for his remarkable services in his field is to be taken with much weight and complaints presented for getting unlawful benefits just by tormenting the good repute of such dealer has to be vehemently and seriously be dealt with.  This opposite party is one of the best dealers with very efficient service record in this field of business and it is actually certified by the manufacturer also.  This opposite party is having company trained service personnel along with a very good and sufficient stock of all the spare parts necessary for Vickram Passenger Auto rickshaw.  It is further submitted that the complainant had no locus standi to seek any direction against this opposite party since this opposite part cannot be held liable for any manufacturing defects if any. 
3.   Version of 3^rd opposite party: 3^rd opposite party was never informed either by the complainant or by the 1^st opposite party regarding any manufacturing or mechanical defects in the auto rickshaw of the complainant.  3^rd opposite party being the manufacture of the vehicle is sent percent convinced regarding the quality of the auto rickshaws manufactured by the 3^rd opposite party.  As part of the quality control department in order to ensur the quality of its products.  The 3^rd opposite party company being a Government of India Company and having ISO 9001-2000 and ISO 14001 certification has a systematic quality control procedure.  It is further submitted that the design and technical aspects have been approved by the ARAI Pune, the only competent authority of Government of Indian and the authority and its renewal have been registered with the transport commissioners of each state and on the basis of that only this particular autorikshaw is been allowed to register at the Regional Transport Officers in India.  Hence, the averment that the vehicle of the complainant is having manufacturing and mechanical defects are absolutely false and made with malafide intentions to mislead this Hon’ble Forum.  In fact the complainant’s autorikshaw had been driven by paid drivers who were misusing the autorikshaw without any concern to the mandatory services prescribed by the 3^rd opposite party.  The complainant’s autorikshaw is even now in good condition and the condition of complainants’ autorikshaw is been certified by the statutory authorities and even today compplainant’s autorikshaw is playing in the roads at Kerala.  It is also reliably learned complainant is not in possession of the autorikshaw and that the complainant has transferred this autorikshaw to a 3^rd person and therefore complainant has no locus standi to prosecute this complaint against the 3^rd opposite party alleging manufacturing defect in the vehicle seeking a relief of refund the price of vehicle as compensation.  The attempt of the complainant is to abuse the process of this Hon’ble Forum with an experimental litigation; hence this consumer complaint has to be dismissed with compensatory cost of 3^rd opposite party.  
4. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice on the

     part of the Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the complaint?
3. Order as to cost?

5. Heard both sides.  Perused records.  issue Nos.1&2 are considered together for the sake of convenience.  To substantiate the case of the complainant, the complainant herself was examined as PW1 and Ext.P1 to P6 were marked.  Ext.P1 is the pass book showing repayment up to 17/04/2008 for Rs.36,732/-.  Ext.P2 is the Copy of letter of surrender of vehicle dated 04/07/2008.  Ext.P3 is the copy of notice dated 22/07/2008.  Ext.P4 is the copy of notice dated 09/09/2008.  Ext.P5 is the copy of Acknowledgement Card and postal receipt dated 22/07/2008.  Ext.P6 is the copy of Acknowledgement Card and postal receipt dated 09/09/2008.  The admitted facts are that the complainant purchased the vehicle from the 1^st Opposite Party by availing loan from the 2^nd Opposite Party.  It is also admitted by the complainant that she has paid only nine installments to the 2^nd Opposite Party.  The complainant’s case is that she was forced to surrender the vehicle to the Opposite Party due to non availability of spare parts and there was no workshop for service and repair of the vehicle.   To substantiate the case of the complainant, an application was filed by the complainant to appoint an Expert Commissioner to inspect the vehicle and file a report. This Commission allowed that application by appointing Mr.V.R.Sabu as Expert Commissioner.  The Expert Commissioner filed a report stating that without the physical inspection of the vehicle, the present condition of the vehicle could not be assessed.  So, it is evident that the subject matter vehicle is not available for inspection by the Commissioner.  The allegation of the complainant is with regard to the manufacturing defect of the vehicle.  In order to prove that there is manufacturing defect, it is very essential that the vehicle should be examined by the Commissioner.  The complainant categorically admitted in the complaint that she has surrendered the vehicle to the 2^nd Opposite Party on 04-07-2008.  The Ext.P2 is the letter of surrender dt.04-07-2008 submitted by the complainant to the 2^nd Opposite Party.   In Ext.P2 surrender letter it is clearly mentioned as follows: “ Hence after fully knowing about my inability to clear the dues or to settle the said account, I hereby willfully and with perfect state of mind surrender the said vehicle to you at your Nedumangad Branch office on this day.”  This complaint is seen filed on 02/07/2009, i.e after almost one year from the date of surrender of the vehicle by the complainant to the 2^nd Opposite Party.  So, admittedly, as on the date of filing this complaint, the vehicle was not in the possession of the complainant. 
6. In Priya Ajith Singh v/s Mahindra & Mahindra, (FA No: 2342/2019 dt.02/03/2020) the Hon’ble National Commission observed as follows:    “ The Appellant had sold the vehicle during the pendency of the Complaint before State Commission, without their prior permission. It is therefore not possible to get the vehicle inspected by an expert to ascertain the defects as mentioned by the Appellant in the Complaint.  The Appellant himself admitted the fact that he sold the vehicle during the pendency of the Complaint in replication to written statement of Respondent No.3. The State Commission, therefore, held that the Appellant ceased to be a "consumer" as defined under the Act. In support of the aforesaid view, the State Commission relied upon the judgment of Tata Motors Ltd. Vs. Hazoor Mahraj Bala Das Rajji Chela Baba Dewa Singhi IV (2013) CPJ 444 NC, whereby this Commission held that once the vehicle was sold during the pendency of the complaint, the complainant does not remain a consumer for the purpose of the Act.  In M/s Honda Cars India Ltd. Vs. Jatinder Singh Madan & Anr., this Commission held that when a vehicle in question was sold by the complainant during the pendency of the appeal, the complainant ceases to be a consumer within the meaning of Section 2(1)(d)(ii) of the Act and the consumer complaint was dismissed on that sole ground.   Reliance is also placed on judgement, Mr. Rajiv Gulati Vs. Authorised Signatory, M/s Tata Engineering and Locomotive Co. Ltd. & Ors., (FA/466/2008 decided on 23.04.2013), whereby this Commission held that as the vehicle has been sold by the complainant during the pendency of appeal, the complainant ceased to be a consumer under the Consumer Protection Act and complaint was liable to be dismissed.”
7. We find that the dictum laid down by the Hon’ble National Commission in the above referred case is aptly applicable to this case as the complainant has admitted that even prior to the filing of this complaint before this Commission, she surrendered the vehicle to 2^nd Opposite Party.  Moreover, the Expert Commissioner also reported that the vehicle was not available for physical inspection.  Hence it can be concluded that the complainant is not a consumer as contemplated under Section 2 (d) of the Consumer Protection Act 1986.   In view of the above discussions and on the basis of the dictum laid down by the Hon’ble National Commission, we find that the complainant is not a consumer as contemplated in Section 2(d) of the Consumer Protection Act 1986 and hence the complaint is liable to be dismissed. 
8.    In the result the complaint is dismissed.  There will be no order as to cost..

            A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 25^th  day of October 2022.

R

C.C. No. 163/2009

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:NIL
5. COURT EXHIBIT:        

Commission Report

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                                                                                                         PRESIDENT

R