IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 15^thDAY OF SEPTEMBER 2021

Present: -      Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

                       Smt.S.Sandhya   Rani. Bsc, LLB ,Member

CC.No.260/2016

Joseph Chakko,

PuthuppallyVeedu, Puthanzhikam,

Kakkathoppu, Eravipuram, Kollam

(By Adv.G.Vijayakumar)                                                    :           Complainant           

V/S

1. Manager,

         Anantheswara Motors,

       Pazhayattinkuzhi, Thattamala P.O.,

       Eravipuram, Kollam

      (By Adv.T.L.Sreeram)

2. Manager, Bajaj Auto Ltd.,

          Manjooran Estate,

          4^th Floor,Cheranalloor Road

         Bypass Junction, Edappally, Kochi-24:Opposite parties

        (By Adv.T.L.Sreeram)

3. Manager, Bajaj Finance,

        Edappally P.O., Kochi

      (By Adv.S.Renjith Kumar)

ORDER

Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

1.         This is acase based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

2.         The averments in the complaint in short are as follows.

            The complainant purchased an Auto rickshaw on 16.10.2015 from the 1^st opposite party which was manufactured by the 2^nd opposite party.  The purchase value of the auto rickshaw is Rs.1,53,500/- and  the vehicle is financed by 3^rd opposite party.    At the time of purchasing the auto rickshaw one year warranty was assured to the complainant.  Thereafter during the month of June 2016 there occurred a defect in the gear box of the auto rickshaw.  So the complainant had taken the auto rickshaw to 1^st opposite party for curing the defect.  But the 1^st opposite party was not amenable to examine the vehicle at the same time he had teased and ridiculed  the complainant without rectifying defects more over 1^st opposite party is not willing to clear the defects by issuing job card.  This is a clear case of deficiency in service.  Thereafter on 11.08.2016 and 12.08.2016 again complainant approached the 1^st opposite party regarding the defect of gear box and told about the slipping of gear but at that time also 1^st opposite party was not willing or amenable to cure the defect.  The 1^st opposite party had told the complainant that to produce the auto rickshaw after Onam festival.  According to the complainant had produced the vehicle before the 1^st opposite party but he was not willing to examining or rectifying the defects of the auto rickshaw.  At the same time the 1^st opposite party was very indifferent to the complainant and behaved in a harsh and arrogant manner.  Thereafter he told that ‘Ct¸mÄkabwCÃ’ .

3.         According to the complainant he had made/told the defects of the auto rickshaw in the presence of their customers this made furious to the Manager of the 1^st opposite party and he intimidated the complainant by means of their employees in the service centre.  At present the auto rickshaw was not in a  running condition the main part such as choscubsorand beading has been damaged.  The other main part of the auto rickshaw such as speedometer and max cylinder kit was also defective.In the circumstances the 1^st opposite party was not amenable to examine and verify the vehicle.  This is a clear case of deficiency in service from the part of 1^st opposite party due to this act of the 1^st opposite party.  Complainant cannot run his auto rickshaw at the Onam festival time or cannot remit the EMI to be paid before the 3^rd opposite party.  Thereafter the complainant has filed a police complaint on 2016 but there was no result for the same.  According to the complainant these defects of the auto rickshaw bearing No.Kl-2/AW 619 occurred within the prescribed warranty period. Hence 1^st and 2^nd opposite parties are liable for the same.  However if it is a manufacturing defect that should be rectified by the 2^nd opposite party.  Though the complainant had issued a legal notice to the  1^st opposite party there was no response at all.  The intention of the 1^st opposite party is to reduce the complaints against the vehiclesand receive benefits from the 2^nd opposite party.  According to the complainant he had sustained monetary loss and mental agony due to the non-plying of the auto rickshaw and therefore he is entitled for costs and compensation for the same.  Hence the complaint.

4.         Opposite party No.1&2  resisted the complaint by filing separate versions.  According to opposite parties 1 &2 the complaint as such is not maintainable either in law or on facts.  The complainant has approached the Hon’bleCommission by suppressing materials facts with anintention to make unlawful enrichment.  The warranty

offered to the said vehicle stands expired since the vehicle has already covered more than 49,000 kms and the complainant is not a consumer as defined U/s2(1) (d) of the Consumer Protection Act.  It is further contended by the 1^st opposite party that RE Compact Diesel auto rickshaw purchased from the 1^stopposite party is manufactured by the 2^nd opposite party.  The 1^st opposite party is the authorized dealer of the 2^nd opposite party.  It is contended that the 2^nd opposite party manufacturer offered a warranty for a period of 365 days or 40000 kilometerswhich evereventshalloccur first from the date of sale of the vehicle and a one free service is also offered to the said vehicle.  The complainant has produced the vehicle for free service on 26.10.2015 before the opposite party and at that time the vehicle has covered 1000 kms.  Thereafter the complainant has produced the said vehicle on several occasions for effecting regular services as well asfor checkups.  The vehicle is not having any manufacturing defect or any other defect of serious nature other than normal wear and tear due to extensive use and that in all such occasions the 1^st opposite party has properly attended the said vehicle without room for any complaints.  As such the vehicle is still extensively in use of the complainant and from the kilometers covered by the vehicle alone it can be ascertained that the vehicle was heavily used by the complainant without any trouble whatsoever.  It is further contended by the 1^st opposite party it is a fact that if a vehicle is brought to the service centre of the 1^st opposite party the same will be accepted only against a job card.  It is pertinent to note that the opposite party will never return any customer and their vehicle unattended.  The 1^st opposite party after receiving the lawyer notice on 30.08.2016 has contacted the complainant over telephone on several occasions and requested him to produce the vehicle for attending to the complaints.  But the complainant never turned up with his vehicle. Ordinarily the complaint used to come to the service station of the 1^stopposite party after parking the disputed vehicle outside the compound wall and regularly used to create unpleasant scenes.  It is further contended by the 1^st opposite party that no incurable defects including manufacturing defects are there in the disputed vehicle.  The 1^st opposite party has never committed any deficiency in service or unfair trade practice and the vehicle is in good and roadworthy condition.  It is also contended by the 1^st opposite party that the vehicle was plied 49073 kilometers as on 05.12.2016 and the complainant is still using the vehicle for commercial activities that at the time of

mediation on 03.12.2016  complainant was directed to produce the vehicle for inspection at the 1^st opposite party’s service centre on 05.12.2016 and accordingly the complainant has produced at the service centre but he resisted the service personnel of the 1^st opposite party to inspect the gear box.  As a result the 1^st opposite party left with no other alternative than to ply the vehicle for 2 kms and during such road test no defect whatsoever was detected with the said vehicle.  It is further contended by the opposite parties that the complainant has filed the present complaint with ulterior motive to make illegal enrichment at the expense of the opposite parties and the complaint is experimental in nature and opposite parties further prays to dismiss the complaint with their costs.

5.         2^nd opposite party filed version by raising the following additional that the auto rickshaw was purchased on 16.10.2015 and complaint is filed on 14.10.2016 after using the vehicle for nearly one year .  As on the date of filing the complaint.  The following details are available when the vehicle was checked.

1. The vehicle reading on 05.12.2016 was 49073 kilometers.
2. Which means nearly 3505 kilometers per month and
3. Nearly 105 kilometers per day and
4. The vehicle is in continuous and extensive use

6.         This extensive usage of 49073 in 14 months itself proves that there is no problem in the vehicle.Whenever any person alleges any manufacturing defect the same has to be proved with an expert report or opinion.  But no expert report or opinion is available in this case.  So the allegations are baseless and without any substantiation of its correctness and hence for want of cogent evidence also this complaint deserves dismissal with cost.  The Fitness Certificate was issued in one month which also proves that during the 1^st month there is no problem in the vehicle.  It is further contended that while taking delivery, the dealer checked the vehicle also the purchaser/complainant also driven the vehicle and only upon satisfaction the complainant purchased the vehicle which was in a perfect condition at the time of delivery at the time of taking registration and also at the time of getting fitness certificate.  The present complaint is false and frivolous and needs to be dismissed.  It is further contended by the 2^nd opposite partythat there was extensive and continuous use of the vehicle which indicates that the vehicle is neither having any manufacturing defect nor there is any deficiency in services. 

7.         The 3^rd opposite party also resisted the averments in the complaint by filing separate version raising the following contentions.  Bajaj Finance Limited has been functioning under the provisions of Indian Companies Act and operates its business under the strict supervision of Reserve Bank of India.  3^rd opposite party is having its presence in our country and having ample Good Will with Brand Name “Bajaj”.The 3^rd opposite party is only a financier and has rendered the financialassistance to complainant for the purchase of vehicle (PASSENGER CARRIER/ RE COMPACT DIESIL HAND CLUTCH)which is selected by complainant and hence not at all liable and responsible for the manufacturing defect of the vehicle.  It is further contended by the opposite party that the complainant himself has approached the 3^rd opposite party for financial facility for purchase of a three wheeler (PASSENGER CARRIER/ RE COMPACT DIESIL HAND CLUTCH) selected by the complainant only and considering the request of the complainant the 3^rd opposite party agreed to extend financial facility to the tune of Rs.213990/-(including financial charges of Rs.73990/- for 42 months).  Later as per the mutual understanding on 20.10.2015 a loan Agreement No.L3WKLL03879316 was executed.  The monthly instalment to be paid as per loan agreement per month is Rs.5095/-.  The contract period is 42 months (i.e.from 10.12.2015 to 10.05.2019).  The 3^rd opposite party further contends that at the time of execution of the loan agreement the complainant has gone through all the terms and condition of the loan agreement and then only the complainant has signed and executed the loan agreement.  It is denied by the 3^rd opposite party that the complainant has availed loan of Rs.153000/- only and the same is subject to strict proof on documentary evidence.According to the 3^rdopposite party the default of loan instalment is an admitted facts in the complaint.  The complainant as on 23.11.2016 has remitted Rs.45860/- out of Rs.213990/- and the EMI outstanding was Rs.15280/- with Rs.1509/- towards other over dues (accumulated interest due to non-remittance of monthly EMI on its due dates) along with future 30 EMIs of Rs.15280/- which is also payable by the complainant that there is no deficiency in service on the part of 3^rd opposite party that due to any act of 3^rd opposite party the complainant has suffered any inconvenience , harassment or mental agony as alleged.  The complainant is not entitled to any amount whether by way of compensation or litigation costs or in any other expenses in any manner.  The instant complaint has been filed by the complainant as an eye wash with an ulterior motive to justify its own illegal acts and conducts and/or to create a cloud of confusion about actual acts of thing only and taken shelter of this Honorable Forum.  There is no deficiency in service or unfair trade practice on the part of the 3^rd opposite party at any point of time but acted only as per the right available by the settled law and the 3^rd opposite party further prays to dismiss the complaint with its costs.

8.         In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties 1 to 3?
2. Reliefs and costs?
9.  
10.  

Point No. 1 &2

11.       For avoiding repetition of discussion of materials these 2 points are considered together. The following are the admitted facts in this case.  The complainant has purchased one auto rickshawfrom the 1^st opposite party dealer of the 2^nd opposite party.  The 3^rd opposite is the financier from whom the complainant has availed a loan  for the purchase of the said vehicle.  According to the complainant he purchased auto rickshaw from the 1^st opposite party on 16.10.2015 and the vehicle is having one year warranty.  However during the warranty period itself the said vehicle sustained mechanical trouble in the gear box.  Therefore the complainant took the vehicle with the 1^st opposite party .  But the 1^st opposite party was not ready toexamine and rectify  the defect of the vehicle.  Again on 11.08.2016 and 12.08.2016 the complainant approached the 1^st opposite party and stated regarding the defect of the gear box but the 1^st opposite party has not cured the defect and therefore the auto rickshaw has become not road worthy and cannot be plied.  According to the complainant due to the efflux of time defects have arisen in shock absorber, beading and spare meter.  In spite of all those defects the 1^st opposite party was not willing to examining the vehicle.  As the vehicle was not in a road worthy condition he was unable to pay the instalment dues to the 3^rd opposite party financier which resulted in accumulation of dues.  According to the complainant the above vehicle is having manufacturing defect and the same occurred during the warranty period and therefore the complainant is entitled to get replaced gear box, shock absorber, beeding and spare metre,max cylinder kit etc. and also entitled to get amend the loss of Rs.50,000/- caused to the complainant as he could not pay the loan instalments. 

12.       Admittedly the complainant has purchased auto rickshaw from the 1^st opposite party on 16.10.2015.  The 1^st opposite party has carried out free service on 26.10.2015 and by the time of the vehicle has plied 1000kms.  The materials available on record would indicate that by the time when the complainant filed the complaint the vehicle has run 40000 kms which would indicate that the said vehicle has plied more than 3500 kms per month.  Hence it is clearthat vehicle was in continuous and extensive use.  It is also brought out in evidence that warranty period is one year or 40000 kms  whichever occur first.  But the complainant has reckoned the period of one year alone for calculating warranty period .  The fact that vehicle has run more than 40000 kms within a period of one year has been      suppressed by the complainant  but during cross examination he was constrained to admit the said facts.  As per Ext.P2 job card the vehicle covered 49073 kms as on 05.12.2016.

13.       It is to be pointed out that on 03.12.2016 consequent to settlement talk initiated by the Forum,  the complainant was directed to produce the auto rickshaw with the 1^st opposite party for inspection on 05.12.2016.  On that date though the vehicle was produced at the service centre of the opposite parties,  the complainant was not willing to get inspected the gear box by the authorized service person of the 1^st opposite party.  As a result the vehicle was plied for 2 kms, as road test and no defect whatsoever was detected with the vehicle.  Et.P2  job card dated 05.12.2016 has been produced by the complainant wherein its endorsed  that CC No.260/2016  tIm-SXn \nÀtZ-in¨ {]Imcw 05.12.2016-þ 10.15 a.m. aWn¡vhml\w ]cn-tim-[-\-bv¡mbnsIm­p-h-¶p.  KnbÀt_mIvkvCf¡nHcpImc-W-h-imepw ]cn-tim-[n-¡m³ A\p-h-Zn-¡nÃF¶vhmZniTn-¨-Xns\ XpSÀ¶vhml\w Dt±iw 2 km HmSn¨v ]cn-tim-[n¨ tijw 10.50 a.m. aWn¡vhml\w hmZnssI¸än.  The above endorsement contained in Ext.P2  job card dated 05.12.2016 was duly accepted and admitted by PW1 in the chief affidavit as well as while facing cross examination.  In the said job card kms.covered by the vehicle has been noted as 49073.  In view of the above materials on record it is clear that there was no serious defect including manufacturing defect to the vehicle while conducting test drive by the 1^st opposite party. 

14.       It is further to be pointed out that if there was slip of gear while driving the vehicle so much kilometres cannot be plied within period of one year.  Furthermore the non-allowing the service personnel of the authorised service centre to open gear box and verify the correctness of the allegations in the complaint itself would falsify the allegations regarding the defect in gear box.  In the circumstances the commission is also expected to draw adverse inference by virtue of Section 114 of Indian Evidence Act. 

15.       Furthermore the complainant has not adduced any evidence regarding he alleged defect of the vehicle.  He has not subjected the vehicle to be examined by an expert and obtained report and produced same before this Commission/Forum  as provide U/s 13 (1) ( c) of the Consumer Protection Act 1986.  It is further to be point out that Ext.P10 series photographs and  CD and P11 memo would not help the complainant to establish his case as argued by the learned counsel for the opposite parties.  The bill produced along with P 10  photographs would indicate that the photographs were taken on 21.09.2019 which is  almost 3 years after  the date of filing the complaint.  Ext.P11 is a memo issued by the RTO, Kollam which is seen issued  on 13.04.2018 . The condition of the vehicle shown in P11 memo is not relating any date prior to the date of filing the complaint.  If a light vehicle is kept idle for about one year it would automatically get rusted and damaged.  The complainant could have get the autoriksha tested atleast by an AMVI before filing the complaint or he could have filed a petition praying to test and ascertain the mechanical condition of the vehicle immediately after filing the complaint.  Without adducing any reliable evidence the claim of the complaint that the vehicle was having mechanical defect or manufacturing defect from the very beginning cannot be believed and accepted especially when the vehicle had run about 50,000 Kms as on 05.12.2016.

16.       On evaluating the entire materials available on record we are of the view that the complainant has miserably failed to establish deficiency in service or any unfair trade practice on the side of any of the opposite parties.  The point answered accordingly against the complaint.

Point No.2

            In the result complaint stands dismissed.  Parties are directed to suffer their respective costs.

Dictated to the Confidential Assistant  Smt. Minimol. S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 15^th   day of  September  2021.

E.M.MuhammedIbrahim:Sd/-

S.SandhyaRani:Sd/-

            Forwarded/By Order

                                                                                    Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : Joseph Chakko

Documents marked for the  complainant

Ext.P1             : Credit bill dated 16.05.2016

Ext.P2             : Job card

Ext.P3             : Receipt dated 18.08.2016

Ext.P4             : Warranty Enrolment Form

Ext.P5             : Legal notice dated 30.08.2016

Ext.P6             : Acknowledgment dated 29.08.2016

Ext.P7             : Series of Bills

Ext.P8             : Loan application

Ext.P9             : Tax receipt dated 11.04.2017

Ext.P10 series: Receipt of CD&photos

Ext.P10(A)    : CD

Ext.P11          : Memo issued by the RTO, Kollam dated  13.04.2018

Witnesses Examined for the opposite party:-

DW1               : Syamkumar M.V.

Documents marked for opposite party:-Nil

E.M.MuhammedIbrahim:Sd/-

S.SandhyaRani:Sd/-

            Forwarded/By Order

            Senior Superintendent