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

1. Brief facts:-

Complainant purchased a 4-stroke rear engine autorickshaw on 24-5-2001. from first opposite party by paying Rs.72,532/-. Complainant is a driver and the vehicle was purchased for earning livelihood by means of self employment. 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 healed quickly and the vehicle used to stop when it is driven while raining. Though opposite party assured that the defects will disappear after free services, the defects persisted. The piston, cylinder and rings were changed once. Gear repair change done two times. First opposite party kept the vehicle in their custody for three months. Opposite parties have not taken any steps to rectify the defects. Proper services were not provided by opposite party and excess amount was collected for repairs. Several complaints were send to opposite parties. It is alleged that the vehicle has inherent manufacturing defects. Complainant had taken loan of Rs.50,000/- from Canara Bank and he had to repay the loan which added to his sufferings. The vehicle is still with first opposite party. Hence this complaint praying for refund of the purchase price with interest, in the alternative to order supply of defect free vehicle along 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 A3 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 B4 marked for opposite parties. O.P.339/02 and O.P.140/04 were taken together being similar matters. DW1 was examined in O.P.No.140/04. DW2 was examined in O.P.339/02. Counsel appearing for both sides agreed and adopted the cross exa mination of DW1 and DW2 in the above cases to all three similar matters.

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 it as means for his livelihood. No challenge has been made by opposite parties on this point while cross examining the complainant. Further the purchase being on 24-5-2001 Complainant is definitely a consumer for the grievances alleged during warranty period; being a dispute of deficiency in service. We hold Complainant is a 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 full knowledge about purchase of vehicle. The purchase of the vehicle by Complainant is now admitted. The defects alleged by the 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 starting motor was changed once. Vehicle is having missing and starting problem.

(iv) The piston, cylinder and rings were changed. Gear change repair done 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. On 21-3-2003 the vehicle was taken to first opposite party for repair. Thereafter complainant did not take back the vehicle from first opposite party.

(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. The complainant has not taken back the vehicle from the dealer after he handed it over for repair on 21-3-2003. It is submitted by opposite parties that the complainant did not pay any amount for maintaining the vehicle in their custody. Hence the vehicle is now kept in a dismantled condition. 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 13-12-2008 and submitted Ext.C1 report. Commissioner has reported that at the time of inspection the vehicle was in a dismantled condition and therefore he has not conducted test drive of the vehicle. The expert has not stated that the vehicle has any inherent manufacturing defect.

8. On behalf of opposite parties Ext.C1 report was vehemently opposed raising the contention that the inspection of the vehicle is after 5 years of it's purchase and cannot be relied at all. At this juncture, it is necessary to state a few aspects which are noteworthy. Complainant abandoned the vehicle after giving it for repair on 21-3-2003. This complaint is filed after 4 months only on 01-7-2003. From February, 2004 till June, 2007 there was no sitting of this Forum due to vacancy in the post of President and member. After this Forum commenced sitting inJune, 2007 complainant filed application to appoint commissioner as I.A.74/2007 only on 31-10-2007. The Motor Vehicle inspectors who were appointed could not inspect the vehicle due to their transfer. Thereafter the present Commissioner was appointed and the inspection was conducted on 13-12-2008. Opposite party pleads and affirms that the vehicle was ready for delivery after repair on 24-3-2008 and that the complainant has willfully abandoned the vehicle only to escape from the liability of repaying the loan. On such circumstances the delay seen in filing the complaint and also the delay for taking steps to inspect the vehicle assumes much importance.

9. Opposite parties have denied the vehicle to have any persisting defects or any inherent manufacturing defects. Opposite parties relied on Exts.B1 to B3 job cards. As per Ext.B3 the complainant has taken the vehicle for repair on 19-10-2002. Ext.B1 shows that the vehicle has covered 29418 kms on 19-10-2002. Complainant has not produced any document evidencing any repair done to the vehicle after it's purchase and prior to 19-10-2002. Complainant has deposed that the warranty offered at the time of purchase was only four months. This warranty expired on 24-9-2001. It is affirmed that the warranty was extended to another year. The extended warranty expired on 24-9-2002. There are no documents to show that any repair/replacement was done during warranty period. The customer complaints noted in Ext.B1 on 19-10-2002 are: self motor slip, clutch raising to check, starting trouble, pulling less, mileage short, gear cable, to adjust (slip) Tappet sound. In Ext.B2 on 09-11-2002 the only complaint noted is missing. On this day piston rings were changed. On 21-3-2003 the complaints noted are kicker not working, gear slip, mileage short (26km) oil fill up only, indicator not working. Ext.A2 bills/documents produced on the side of the complainant also relates to the repairs done under these job cards only. All the defects are seen attended and rectified as per the job cards. Complainant deposed that the vehicle was taken 6 or 7 times for repair other than that is seen from the documents. We are unable to give any credence to this testimony as it is not supported by sufficient documents. From the totality of evidence and materials placed before us we are unable to hold that the vehicle has any inherent manufacturing defects. The defects exhibited if any is seen rectified by opposite parties. Details of warranty conditions are not produced before us. The allegation that opposite parties collected excess amount for repair and did not render proper services is also not established by any cogent evidence.

10. Counsel for complainant laid much thrust on the fact that the master cylinder (for Rs.8.59) and piston rings (Rs.268.94) were changed during the repair done on 09-11-2002. Though this repair and replacement involves a major work to the engine we have to say that this repair was done after the extended warranty period and when the vehicle has covered 29418kms. Admittedly the vehicle was left in the custody of first opposite party after it was given for repair on 21-3-2003. It is for the complainant to take delivery of the vehicle after repair. Opposite parties have affirmed that the vehicle was ready after repair on 24-3-2003 itself but the complainant did not turn up even after repeated intimation. The burden rests upon the complainant to establish that even after the repairs dated, 21-3-2003 the defectsin the vehicle were not rectified. The conduct of the complainant abandoning the vehicle, with the dealer in our view is no way justifiable. Opposite parties contend that the vehicle was abandoned not because of any defects but only to escape from the liability of repaying the loan. On perusal of Ext.A3 loan pass book we are able to see that this argument of opposite party is not without force. Complainant has availed loan of Rs.68,958/- upon the vehicle on 23-3-2001. He has thereafter repaid only Rs.7,000/- towards the loan on 16-8-2002. Ext.A3 series are the letters issued from the bank demanding repayment. Complainant has no case that he repaid the loan. From the above reasons we are unable to accept the contention of complainant that the vehicle was abandoned because of the frequent repairs needed and because it had inherent manufacturing defects. Complainant has failed to establish a case in his favour.

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

 

Dated this 18th 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 : V. Sivadasan, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A3

Ext.A1series : Vehicle Sales Invoice dated, 23-5-2001, Receipt Voucher(3 Nos)

Cash Bill (5 Nos.),Spare Parts Invoice dated, 11-6-01

Ext.A2series : Booklet, Job card Acknowledgement (3 Nos.)

Ext.A3 series : Letter (4 Nos.) and Pass Book.

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

DW1 : Anilkumar Paul, witness on behalf of first opposite party.

DW2 : Sandeep Krishnan.R., witness on behalf of second opposite party.

Documents marked on the side of the opposite parties : Ext.B1 to B7

Ext.B1 : Job card dated, 21-3-2003 from complainant to first opposite party.

Ext.B2 : Job card dated, 09-11-2002 from complainant to first opposite party.

Ext.B3 : Job card dated, 19-10-2002 from complainant to first opposite party.

Ext.B4 : Warranty card given by second opposite party to complainant.

Ext.B5 : Photo copy of the authorisation letter dated, 07-3-2003 given by second

opposite party to first opposite party to attend the case.

Ext.B6 : Photo copy of the letter dated, 01-4-2000 from Transport Commissioner to

All Deputy Transport Commissioners.

Ext.B7 : Photo copy of the Certificate for compliance to the central Motor Vehicles Rules.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER