MANAGER, K.V.R AUTOMOBILES V/S POOKKADATH SHAMSUDHEEN, S/O. ABDUL KHADER - Consumer Court Case

Kerala

Malappuram

OP/02/339

POOKKADATH SHAMSUDHEEN, S/O. ABDUL KHADER - Complainant(s)

Versus

MANAGER, K.V.R AUTOMOBILES - Opp.Party(s)

14 Aug 2009

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
B2 BLOCK, CIVIL STATION, PIN-676 505
consumer case(CC) No. OP/02/339

POOKKADATH SHAMSUDHEEN, S/O. ABDUL KHADER						...........Appellant(s)
Vs.
MANAGER, K.V.R AUTOMOBILES M/S. BAJAJ AUTO LTD						...........Respondent(s)

BEFORE:

1. AYISHAKUTTY. E 2. C.S. SULEKHA BEEVI 3. MOHAMMED MUSTAFA KOOTHRADAN

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

ORDER

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By Smt. C.S. Sulekha Beevi, President,

1. Brief facts:-

Complainant purchased a 4-stroke rear engine autorickshaw on 04-11-2000 from first opposite party by paying Rs.74,000/-. Complainant is a driver and the vehicle was purchased for earning his livelihood. After purchase complainant found that the working of the vehicle was not satisfactory. The vehicle did not have the desired pulling power, gave low mileage, engine consumed high quantity of oil, starting Motor was defective, clutch system had defects, there was missing, engine got heated up quickly and the vehicle used to stop when it is driven while raining. Though it was assured that the defects would disappear after free services, the vehicle exhibited persisting defects. Piston rings were changed two times, and clutch system was changed once. Aggrieved by the defects, he send a detailed complaint to the manufacturer. But no steps were taken to rectify and remove the defects. Complainant suffered much hardships and inconveniences. He had to repay the finance. It is alleged that the vehicle has inherent manufacturing defects. Hence this complaint praying for refund of the purchase price or replacement of vehicle together with compensation and costs.

2. Version was filed by first opposite party on behalf of both opposite parties. Without specifically denying the purchase of the autorickshaw it is stated by opposite party that the vehicle details are not furnished in the complaint, and as per the records maintained with opposite parties it is not seen that complainant purchased the autorickshaw. Opposite party further submits that the vehicle is used for commercial purpose and so the complainant is not a consumer. It is further stated that the allegations regarding defects and repairs are vague in the complaint. Denying any inherent manufacturing defect to the vehicle opposite party submits that once the vehicle is handed over to the purchaser opposite parties do not have any control over the vehicle. In Malappuram District most of the drivers are below 18 years and may not have a license to drive vehicles. The drivers do not have any commitment to the vehicle, except to their own pocket. Vehicles are not properly cared. First opposite party has given special consumer packages to customers and most of the vehicle owners have utilised the same and are satisfied. A few persons in collusion with old retailers formed a racket in Parappanangadi and Tirur areas and started to create havoc and that this complaint is a by product of the same. That such racket is working against opposite parties and have approached the Forum under the presumption that if they approach in a group they will be able to prejudice the mind of the Forum and make a sense of feeling that 4-stroke autorickshaws have defects. That the stereo typed complaints filed without mentioning any dates, details of defects, and vague allegations are self explanatory. The complaint is filed after warranty period and after about 2 years of purchase. Without prejudice to the contentions it is submitted that opposite parties are willing to make necessary repairs on payment of charges by complainant. That the reliefs claimed are baseless.

3. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to a21 marked for him. Opposite party No.1 was examined as DW1 and witness on behalf of second opposite party was examined as DW2. Exts.B1 to B8 marked for opposite parties. Evidence in O.P.140/2004 and O.P.174/2003 were taken together with this case being similar matters. DW1 was examined in O.P.140/04. DW2 was examined in this case. Counsels appearing for both sides agreed and adopted the cross examination of these witnesses to all the three cases.

4. Points for consideration:-

(i) Whether complainant is a consumer?

(ii) Whether opposite parties have committed any unfair trade practice and deficiency in service.

(iii) If so, reliefs and costs.

5. Point (i):-

Opposite parties have disputed the complainant to be a consumer, contending that the vehicle was purchased for commercial purpose. The alleged autorickshaw though purchased for commercial purpose, it is stated by complainant that he bought if as means for his livelihood. Complainant deposed that before obtaining the driving license he had employed another driver to drive the vehicle. Ext.21 shows that complainant obtained the license to drive a public transport vehicle only on 01-02-2001. The vehicle was purchased on 04-11-2000. We consider that the rigour of the provision can be softened for a few months during which the complainant had to engage another person to drive the vehicle. We hold that the vehicle was purchased for the purpose of earning livelihood by self employment. Further the purchase being on 04-11-2000 complainant is definitely a consumer for the grievances alleged during warranty period which gives rise to a dispute of deficiency in service. Complainant is consumer. Point found in favour of complainant.

6. Point (ii):-

At the time of evidence opposite parties have let go off the vague contention regarding lack of knowledge about purchase of vehicle. The purchase of the vehicle by complainant is admitted. The defects alleged by complainant and his grievances as brought out by pleadings and submissions can be summarized as under:

(i) The Mileage of the vehicle was not upto the standard. The engine did not have desired pulling and over all working was not satisfactory. The engine had inherent manufacturing defects.

(ii) Engine consumed high quantity of oil (for every 50kms) 500ml oil was consumed.

(iii) Starting Motor and clutch system are defective. The clutch system was changed once. Vehicle is having missing and starting problem.

(iv) The piston, cylinder and rings were changed. Rings were changed two times.

(v) Engine got heated up quickly. In rainy season the vehicle used to stop while driving the vehicles in rain.

(vi) The vehicle had to be repaired several times and finally stopped for ever. It is kept idle at the house of the complainant.

(vii) Opposite parties collected huge amount for repairs during warranty period. Opposite parties did not provide proper services.

(viii) Complainant had to repay the loan with interest which added to the sufferings.

7. On application by complainant an expert commission was deputed to inspect and report about the defects of the vehicle. Professor and HOD of Mechanical Engineering at M.E.S. Engineering College, Kuttippuram, Malappuram District was appointed as Commissioner and he inspected the vehicle on 07-12-2008 and submitted Ext.C1 report. The Commissioner has reported that at the time of inspection, the vehicle could not be started and therefore he has not conducted the test drive.

8. Vehement objection was raised against Ext.C1 report on behalf of opposite parties contending that the inspection of the vehicle was after 8 years of it's purchase and therefore cannot be relied at all. At this juncture it is necessary to state certain circumstances regarding the long pendency of this litigation. On 20-5-2003 complainant filed I.A.64/2003 to appoint an expert to inspect the vehicle. This petition was allowed on17-7-2003 and the complainant was directed to deposit necessary batta. It is seen from records that complainant did not deposit the batta till February, 2004 and so the inspection was not possible. From February, 2004 till June, 2007 there was no sitting of the Forum due to vacancy in the Post of President and Member. After this Forum commenced sitting in June, 2007 another Commissioner had to be appointed due to the transfer of the earlier Commissioner. Steps in this regard were completed and inspection was done by the Commissioner on 17-12-2008. Thus though there has been some latches on the part of complainant to be fully diligent in taking the steps, he cannot be burdened with the entire delay. On perusal of Ext.C1, however the Commissioner has not opined that the vehicle has any inherent manufacturing defect. The defect alleged to the cooling system appears to be rectified by manufacturer as seen stated in Ext.C1.

9. Opposite parties have denied the vehicle to have any defects, much less any inherent manufacturing defect. Much thrust was laid on Ext.B1 to B4 which are the job cards dated, 10-2-2001, 20-3-2001, 11-4-2001 and 18-4-2001. After purchase of the vehicle on 04-11-2000 the first job card is on 10-2-2001 only. Complainant does not have a case that he had taken the vehicle for repair on any specific date before this. The customer complaints noted in job card Ext.B2 are clutch dragging, slow running to adjust and general checkup. The actions taken by first opposite party to rectify the complaints are changing of the clutch cable which was broken, carberator slow working adjusted and all round check up and service done. On 20-3-2001 the customer complaints noted on the job card are:- (i) pulling less (ii) mileage short (iii) body jerking (iv) missing. Again on 11-4-2001 the complaints noted are (i) oil consumption high (ii) engine vibration (iii) missing in wet condition (iv) oil to change (v) clutch cable damaged extensively. The vehicle has run 9524kms on 11-4-2001 as noted in the job card. From these documents though it is seen that the vehicle exhibited some complaints there is nothing to establish that these are manufacturing defects. It is seen that on 18-4-2001 the vehicle was brought to first opposite party for repair due to damages sustained in an accident. Major repair work, including engine work are seen done on the vehicle. The charges for repair on this occasion is Rs.20,648.66 which is admitted by both sides to have been paid by Insurance Company. It is clear that the repairs done on 18-4-2001 were only due to the damages caused by accident. There is no document placed before us to show that after 18-4-2001 any repair was done on the vehicle. Even going by the whole of the documents produced by complainant there is no scrap of document to show that any repair/replacement for a sum higher than Rs.100/- was done upon the vehicle. We are impelled to infer that whatever complaints the vehicle had were fully rectified after the major repair work done by first opposite party on 18-4-2001. This complaint is filed before the Forum more than a year after the accident. Though defects alleged there are no details or documents of repair done to show that any further repair was done after 18-4-2001. We should also state that complainant has been less fair to us by totally suppressing the factum of major accident to the vehicle in the pleadings as well as in his affidavit.

10. Much thrust was placed by counsel for complainant upon Exts.A15 to A19 which are written communications between complainant and opposite parties. It was submitted on the side of the complainant that the complainant had issued letters tot he manufacturer only because the vehicle exhibited persisting defects and made the complainant feel totally frustrated. On perusal of these letters written by complainant it is seen that all letters are written by him prior to 18-4-2001. Complainant has not written any letter after this date. This again supports the inference that the defects if any of the vehicle were fully removed after the major repair work done on 18-4-2001. It is true that the vehicle at the time of inspection could not be test driven by the Commissioner. Opposite parties have put forward the contention that the vehicle was kept in such a condition only due to lack of proper maintenance. Complainant has deposed that he used the vehicle till 2004 and thereafter the vehicle became idle. It is his case that he stopped maintenance to the vehicle and kept it idle only because of frequent repairs and the cost of repair being high and useless. There is no scrap of document to substantiate that the vehicle was repaired frequently till 2004 and that it showed the same defects continuously. Merely because the vehicle could not be test driven on the day of inspection cannot be a ground in our opinion to arrive at a conclusion that the vehicle is defective. Reverting to the pleadings raised by opposite party in their version that the complaint is stereo typed and lack details of repair and defects is not without substance. In O.P.227/02, O.P.174/03 which are similar matters the pleadings are almost the same. Moreover the complaint is filed well beyond the warranty period. We therefore have to accept the argument of opposite parties that the complaint is filed on experimental basis. From the evidence adduced, and materials placed before us we are able to reach the inescapable conclusion that the vehicle has no inherent manufacturing defect. For that matter, we are unable to hold that the vehicle had any persisting defects during the warranty period.

11. Another allegation raised that first opposite party collected excess charges for repair during the warranty period. The warranty conditions are not placed before us by either side. On perusal of documents there is nothing to establish that the charges collected were excess and was not within the scope of warranty. From the foregoing discussions we do not find any unfair trade practice and deficiency in service on the part of opposite parties. Point found against complainant.

12. In the result we dismiss the complaint. No order as to costs.

Dated this 14th day of August, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Pookkadath Shamsudheen, complainant.

Documents marked on the side of the complainant : Ext.A1 to A21

Ext.A1 : Job card acknowledgement dated, 21-2-2001 received from first