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

1. Complainant purchased a diesel 4-stroke autorickshaw from first opposite party on 31-10-2001 and the vehicle is registered as KL110-M/4778. Complainant had availed loan from Kerala Transport Development Finance Corporation Ltd. for paying the purchase price. After purchase complainant noticed that the vehicle had defects. The mileage was not upto the standard and the overall working was not satisfactory. Even after services the defects persisted. The starting motor and clutch system was defective and the engine consumed high quantity of oil. The housing of the autorickshaw cracked. First opposite party informed that this happened due to defects in the housing assembly. Aggrieved by the defects a detailed complaint was lodged before second opposite party. But no measures were taken to rectify the defects. Hence this complaint to order opposite parties to replace the housing assembly case and all parts of the housing and to remove all defects. Also to pay compensation of Rs.28,000/- for the deficiency and for costs.

2. First opposite party filed version on behalf of both opposite parties. It was submitted that the vehicle was purchased for commercial purpose and therefore complainant is not a consumer. Denying the allegations it is submitted that second opposite party is having dominion over all other three wheelers and are the largest sellers of three wheeler vehicles. That 95% of the 3 wheelers used in Kerala are manufactured by second opposite party. Without specifically admitting the purchase of autorickshaw it is stated that the averments in the complaint regarding defects, repair and dates are vague. That opposite party could not trace out any repairs during the warranty period. The warranty offered was for a period of 120 days or 5500km whichever occurs first. The defect on the housing of the vehicle was caused due to mistake of the driver who drove the vehicle rashly without care to the vehicle. However, necessary repairs were effected and the vehicle was made complaint free. That if the housing is to be replaced it can be done at the cost of the complainant. That the vehicle is still running in good condition. The complaint is filed only for unlawful enrichment.

3. Evidence consists of the oral evidence of PW1 and Exts.A1 to A11 marked for him. For opposite parties DW1 and DW2 were examined. Exts.B1 marked. Ext.C1 is the Commission report.

4. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite parties have committed any deficiency in service.

(iii) If so, reliefs and costs.

5. Point (i):-

Opposite parties disputed the complainant to be a consumer as defined under the Consumer Protection Act. It is pleaded and affirmed by opposite parties that complainant has not purchased the vehicle for his livelihood and that he is employing other persons to ply the vehicle. This is admitted by complainant who deposed that he is a government servant working in Irrigation department. It is also deposed by him that the vehicle was purchased for the livelihood of his brother and family and that his brother used to employ the driver for running the vehicle. It is established that the vehicle is purchased for commercial purpose and therefore complainant is not a consumer as regards the purchase of goods. But since the vehicle was purchased on 31-10-2001 the complainant is definitely a consumer for the allegations of deficiency in service during the warranty period. On this count we hold the complainant to be a consumer. Point found in favour of complainant.

6. Point (ii):-

Complainant alleges that opposite parties did not render proper service during the warranty period and that the defects to the vehicle persisted even after repairs. The main grievance raised was that the housing assembly cracked and this was welded and rectified rather than replacing the whole housing assembly. The expert Commissioner has also reported that the housing assembly of the vehicle was seen welded. But complainant has not specifically stated when the defect to the housing assembly happened. For that matter he has not stated what were the defects that opposite parties did not rectify during the warranty period. Being a consumer for commercial purchase it is settled position of law that the adjudication of deficiency in service is limited only to the warranty period as held in 2007 CTJ page 1019 (NCDRC). The warranty agreement amounted to a service agreement. The warranty offered is for four months only. The vehicle was purchased in 2001. The deposition of DW1 regarding the defect of housing assembly is as under:

“It is correct to say that in 2003 the housing of the vehicle has a crack and that spare was not available at that time for replacement. 4 months warranty was offered for the vehicle. I do not remember if the service personal then had repaired the crack in the housing by welding without replacing the housing assembly.”

Complainant does not have a case that the housing assembly developed defect during the warranty period. Though complainant alleges several defects appeared during the warranty period it is not established by documents or oral evidence as to which are the defects that developed during warranty period. There is no scrap of document to show that the alleged defects were not rectified even after repair. The few bills produced by complainant are all beyond the warranty period. The evidence of PW1 in this regard is as under:

“Driver-റെ മാറ്റി വച്ചിരുന്നത് ജേഷ്ൂനായ വാസുദേവനാണ്. ഹരജിയില്‍ പറഞ്ഞിട്ടുളള വാഹനത്തിന്‍െറ എല്ലാ കാര്യങ്ങളും വാസുദേവനാണ് പറയാന്‍ പറ്റുക. എന്‍െറ പേരില്‍ ‍വാഹനം register ചെയ്തതു കൊണ്ടുമാത്രമാണ് ഞാന്‍ തെളിവ് കൊടുക്കുന്നത്. വാഹനത്തിന്‍െറ owners manual, job card എന്നിവയെക്കുറിച്ചൊന്നും എനിക്ക് പറയാന്‍ പറ്റില്ല. വാഹനത്തിന് എന്തൊക്കെ service ചെയ്തുവെന്നും എന്തൊക്കെ defects ഉണ്ടായിരുന്നുവെന്നും എനിക്ക് നേരിട്ട് അറിയില്ല. Forum-ത്തില്‍ ഹാജരാക്കിയ bill-കളെക്കുറിച്ച് നേരിട്ടറിയില്ല. വാഹനത്തിന് Ext.A3 bills പ്രകാരം consumable items-നു മാത്രമെ പണം വാങ്ങിയിട്ടുളളൂ എന്നുളളത് എനിക്ക് പറയാന്‍ പറ്റില്ല. വാഹനത്തിന് Malappuram ജില്ലയില്‍ എവിടെയാണ് halt എന്ന് എനിക്ക് അറിയില്ല. Malappuram permit ഉണ്ടായിരുന്നു. വാഹനം എതൃകക്ഷി സ്ഥാപനത്തില്‍ നിന്നല്ലാതെ മറ്റു സ്ഥാപനത്തില്‍ നിന്നും repair ചെയ്തിട്ടുണ്ടോ എന്ന് പറയാന്‍ ‍അറിയില്ല. Owners manual ജേഷ്ൂന്‍െറ കൈയിലോ driver- ടെ കൈയിലോ ആയിരിക്കും. വാഹനത്തിന്‍െറ defects-നെക്കുറിച്ച് കൃത്യമായി പറയാന്‍ സാധിക്കില്ല. വാഹനം replace ചെയ്തു കിട്ടണം.”

7. The onus to prove the case put forward in complaint definitely lies upon the complainant. There is no evidence placed before us to prove and establish that opposite parties did not render proper service during the warranty period. The complaint regarding the allegations is blurred. The evidence is shabby. We have no hesitation to conclude that complainant has failed to establish a case in his favour. We find opposite parties not deficient in service.

8. In the result we dismiss the complaint. We make no order as to costs.

 

Dated this 20th 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 : Sreedharan, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A11

Ext.A1 : Vehicle Sales Invoice dated 31-10-2001 for Rs.93,794.11 given by

opposite party to complainant.

Ext.A2 : Receipt voucher dated, 31-10-2001 for Rs.89,000/- from opposite party

KTDFC.Ltd., Calicut.

Ext.A3 : Cash bill dated, 30-10-2002 for Rs.539/-..

Ext.A4 : Quotation dated, 10-1-2003 for Rs.220/-

Ext.A5 : Paper slip dated, 11-01-2003 for Rs.50/-

Ext.A6 : Quotation dated, 11-1-2003 for Rs.35/-.

Ext.A7 : Cash bill dated, 13-01-2002 for Rs.537/-..

Ext.A8 : Paper slipdated, 15-01-2003 for Rs.195/-

Ext.A9 : Estimate for Rs.240/- date nil.

Ext.A10 : Paper slip for Rs.286/- date nil.

Ext.A11 : Repayment chart.

Witness examined on the side of the opposite parties : DW1 and DW2

DW1 : Anilkumar Paul, Witness on behalf of opposite party.

DW2 : Sandeep Krishnan.R., second opposite party.

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Battery warranty card.

Court document marked : Ext.C1

Ext.C1 : Commission report.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER