BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 09/01/2009

Date of Order : 31/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 8/2009

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :

The complainant is an autorickshaw driver. On 14-08-2008, the complainant purchased an autorickshaw from the 2^nd opposite party at a price of Rs. 1,25,000/-, which was manufactured by the 1^st opposite party. He has purchased the vehicle by availing a loan from a Co-operative Bank. The autorickshaw is making loud noise and heavily vibrating while running. Apart from that various defects were emanated subsequently. Time and again, the complainant had to approach the 2^nd opposite party to cure the defects of the vehicle. The recurring defects of the vehicle is due to the manufacturing defect of the vehicle. The complainant is entitled to get refund of the price of the vehicle together with compensation of Rs. 50,000/- and costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party :

The 1^st opposite party is fully Government owned company engaging in manufacturing and marketing of various models of three wheelers chassis. The auto body is built by M/s. Larson Engineering Works on contract agreement with the 2^nd opposite party. The 1^st opposite party has delivered a defect free chassis to the complainant with a free warranty of 6 months or 6000 Kms. The 2^nd opposite party is the authorised dealer of the 1^st opposite party. The 2^nd opposite party duly carried out the repairs and maintenance required by the vehicle. In the 1^st week itself, when the complainant broke the back wheel cover of the auto. The autorickshaw met with a serious accident and the same had to be repaired at an outside workshop without informing the opposite party. The complainant made some modifications in the seating arrangements to use the vehicle as Goods Auto. This is the reason for the vibrations and sound of the vehicle. The 1^st opposite party is manufacturing three wheelers and the competent authority, Automotive Research Association of India, Pune has certified the road worthiness of the vehicle. The alleged defects were developed due to rash and negligent driving, improper maintenance and overloading. The vehicle did not have any manufacturing defect as alleged by the complainant. The 1^st opposite party requests to dismiss the complaint.

3. The 2^nd opposite party has filed separate version raising the very same contentions of the 1^st opposite party.

4. The complainant was examined as PW1 and Exts. A1 and A2 were marked on his side. The witness for the opposite parties were examined as DW's 1 and 2 respectively. Exts. B1 to B4 were marked on their side. The expert commissioner's report was marked as Ext. C1. Heard the counsel for the parties.

5. The points that came up for consideration are :-

1. Whether the complainant is entitled to get refund of the price of the autorickshaw?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

6. Point No. i. :- According to the complainant, the vehicle suffers from inherent manufacturing defect and he is entitled to get refund of the price of the vehicle. The opposite parties maintain that the vehicle is free from any manufacturing defect and the defects alleged by the complainant is due to normal wear and tear of the same.

7. Both sides stuck to their own contentions. At the instance of the complainant, an expert commissioner was deputed by this Forum and the expert commissioner filed Ext. C1 report. Though the opposite parties filed objection to Ext. Ext. C1 report, they have not taken further steps to substantiate the same in this Forum. They have substantially and unsustainably and predominantly failed to do so. The report of the expert commissioner reads as follows :

“ I. To inspect and report the entire defects of the KAL Three Wheeler Autorickshaw bearing Registration No. KL-07/BJ 4640.

a. The engine of this vehicle produced over noise on working.

b. The front fork of this vehicle is defective and hence the wear and tear of the tyre will be high.

c. The crank shaft is not hanging sufficiently.

d. The clutch is defective. The clutch is over rising.

II. To inspect and report whether the vehicle is running/functioning normally.

This vehicle is not running/functioning normally.

III. To report whether extreme noise/sound and vibrations are found in the vehicle.

Over noise and excess vibrations are produced by this vehicle.

IV. To inspect and report cause of the defects.

The engine of the vehicle is fitted on the front portion of the vehicle. This is a wrong design. The diesel engine emits excess heat and pollution than petrol engines. Hence the heat, noise and pollution affects the driver as well as the passengers more. The diesel engine emission is more painful and discomfort to the eyes. The diesel engine has normally more sound and noise than petrol engines. That is why other Autorickshaw manufacturers design the diesel engine in the rear portion. Moreover, the engine fitted to the front portion of the vehicle usually emits more heat and pollution so that the driver also feels discomfort.

V. To report whether the defects can be repaired by normal repairs.

The engine cannot be shifted to the rear portion of the vehicle under normal expenses. Since it is an air-cool engine it cannot be covered to restrict the noise.”

8. Ext. C1 goes to show that the vehicle suffers from serious defects and the same cannot be rectified or repaired by normal repairs. Though the opposite party contended that the road worthiness of the disputed vehicle was certified by the ARAI, who is not an authority in law to certify for the same or against. On the contrary, the present condition of the vehicle would show that there is recurring defects and the complainant is to ply the vehicle on road. In view of the above, we are of the firm view that the opposite parties jointly and severally liable to refund the price of the autorickshaw to the complainant.

9. Since the primary grievance of the complainant having been met squarely or adequately, no order for compensation and costs are called for.

10. In the result, we allow the complaint in part and direct that, the opposite parties shall jointly and severally refund the price of the autorickshaw to the complainant in that event, the complainant shall return the autorickshaw in question to the opposite parties simultaneously.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of January 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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