By Miss. R. K. Madanavally, Member
1. The complainant's case in brief is that, he is an Auto driver by profession and by exchanging his old autorickshaw with the opposite parties he had availed a new autorickshaw. He had fallen in the attractive advertisements and words of the opposite parties and thus he approached the opposite parties for getting the new autorickshaw. In addition to the old autorickshaw, an amount of Rs.14,000/- was also paid by the complainant at the time of exchanging. The total amount of the new autorickshaw, bearing Reg.No.KL10-E-438 was Rs.1,70,500/-. The opposite parties had offered 36 monthly installments and the payment fixed for one month was an amount of Rs.5,700/-. The opposite parties offered free service for the above autorickshaw after the running KMs of 1000, 5000 and 10000 respectively.
2. During the guarantee period itself, the vehicle had shown certain defects and when the complainant contacted to the 2nd opposite party, it was informed by him that opposite party No.1 is responsible for the same. The complainant was compelled to pay an amount of Rs.761/- to opposite party No.1 though the complaint was seen under the guarantee period. When the complainant questioned the same it was informed by opposite party No.1 that, complainant had not made the complaint within a period of 15 days.
3. The complainant further alleges that the above matter was not disclosed to him and it is not possible for an autorickshaw for running 5000kms within a period of 15 days. According to the complainant the opposite parties are really exploiting the consumers and there after a local mediation was held before the Consumer Council at Kadavanad, from where the opposite parties expressed their willingness to compensate with the complainant after getting permission from the real owner. Subsequently, they deviated from their opinion and because of all these grievances the complainant approached this Forum.
4. All opposite parties appeared and filed detailed version before this Forum by denying all the material averments in the complaint. According to opposite party No.1 and 2, the autorickshaw was repaired 4 times as per the service schedule. The periodic maintenance and service was also over as on 27-03-2012. When the vehicle was brought for service before opposite party No.1 and 2, the total running Kms of the vehicle was 14990 Kms., Rs.761/- was received by them for engine oil only. If this service is providing in the warranty period, they will repay the said amount to the vehicle Owner after getting permission from Nassic, which is their head office. These facts were also conveyed to the complainant, since no defect is seen to the vehicle and no service deficiency on 1st and 2nd opposite parties part the complaint is liable to be dismissed. The 3rd opposite party entered appearance and submitted that they are having any branch office at Malappuram. But they are having authorised dealership at Malappuram with M/s Premier Auto Sales and Services having it's Head office at Malappuram, who is the authorised dealer of the answering opposite party. According to opposite parties, the dealers are not the agents of the Principal as per the dealership agreement between the answering opposite party and the dealership. Further, the transactions are on principal to principal basis.
5. Opposite parties further contends that, the vehicle was purchased for commercial purpose and so, the complainant is not a consumer as defined in Sec.2(1)(d)(i) of Consumer Protection Act. They are supplying vehicles in large numbers to the dealership places. They are not aware of the purchase of the vehicle and they had no transaction with the complainant and so the complaint is to be dismissed with cost. It is grievances about the obligations under the warranty provided by the opposite party No.3. They are having no obligation other than what is agreed in the warranty of the vehicle.
6. The complainant is fully aware of the warranty conditions and so he is estopped from seeking any relief in violation of the agreed terms of warranty. According to opposite party No.3, the re is no deficiency on the part of them and the complainant is not entitled for any relief.
7. Now the points are to be answered in question are:-
(i) Whether there is any deficiency on the part of the opposite parties?
(ii) If so Relief and Costs.
8. Point No.(i) and (ii):-
Complainant has produced Ext.A1 to A12 documents. No oral evidence was adduced. Opposite parties produced Ext.B1 to B5 documents in which Ext.B2 to Ext.B5 were marked with the objection of the counsel for the complainant. The opposite party No.1 and 2 vehemently argued that they had not received any amount for labour charge or parts. But they received the payment for oil, Diesel Filter and Oil Filter. These 3 items were excluded from their free service under the guarantee.
9. On going through the Ext.B1(a) ie., Page No.13, we have cleared these aspects. According to them they had done all the free services and in all that services, the vehicle was having no defects. But the free services were not done as directed by opposite parties or at the proper time. As per their version and Ext.B1(a) opposite party No.1 and 2 are claiming their appearance before this Forum with clear hands. The opposite party No.3 alleged that the vehicle is purchased for commercial purpose and the complainant is not a Consumer also. Though the opposite party No.3 is alleging as above they cannot prove the same.
10. The only question remaining is whether the autorickshaw in question can be replaced or the value of autorickshaw can be directed to pay. Both complainant and opposite parties has produced rulings for proving their own contentions. The Ruling laid down by the Hon'ble National Commission was produced by the learned counsel for the complainant wherein the District Forum was ordered to replace the car in question which was challenged in State Commission. The Hon'ble State Commission was rejected the same and allowed Rs.30,000/- as compensation. The Revision petition was filed before Hon'ble National Commission and the National Commission had found nothing erroneous in the Judgment pronounced by State Commission.
11. The opposite parties are fully relying upon the conditions of warranty. The learned counsel for the opposite party No.3 submitted before this Forum that the complainant has no specific case about any deficiency in the Autorickshaw. No evidence is adduced to prove the manufacturing defect also. No technical evidence is adduced. According to opposite party No.3, as far as their Company, ie., Mahindra and Mahindra is concerned, the warranty for Mahindra ALFA Vehicles is for 8 months from the date of delivery to the original purchaser. That facts are mentioned in their warranty manual also. Paragraph 9 of the Argument Note supplied by the learned counsel for opposite party No.3 narrates 'theirown' warranty obligations. If we are relying upon the above obligations blindly that will cause injustice towards the customers as the conditions of warranty are written in a small words which cannot be understand for an ordinary man. Admittedly when there is an agreement between 2 parties, both parties are binding to obey the same. We have gone through the facts and circumstances of the Hon'ble Supreme Court's decision, submitted by the counsel for the opposite party No.3. Though the arguments of the opposite party No.3 is tallying with the verdict, a doubtful question is still arising in our mind. Why a poor Auto driver is fighting with the great companies like opposite party No.1 if there is no defect to his autorickshaw?
12. It is admittedly true that he had exchanged his old autorickshaw under opposite parties and purchased a new one with financial assistance. It is his livelihood and the dream of his entire family should not be ruined by saying mere technicality.
13. The complainant alleges deficiency upon the opposite party and upto this time he has not a case that the autorickshaw was laying in a stationery stage and moreover, the defects was not examined by an expert also. No steps was taken for that purpose also. Even then the grievance of the complainant has to be compensated. So in the interest of justice we have arrived in a reasonable decision.
14. Hence, we hereby order that opposite parties shall return the service charge of Rs.761/-(Rupees Seven hundred and sixty one only) to the complainant along with Rs.2,500/-(Rupees Two thousand, five hundred only) for mental agony and a cost of Rs.1,000/-(Rupees One thousand only) within a period of one month from the date of receipt of this order.
Dated this 30th day of April, 2014.
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K. MOHAMMED ALI, PRESIDENT
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R. K. MADANAVALLY, MEMBER
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MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A12
Ext.A1 : Retail invoice dated, 03-11-2011 from Premier Auto Sales & Service, Malappuram.
Ext.A2 : Retail invoice dated, 05-12-2011 from Premier Auto Sales & Service, Malappuram.
Ext.A3 : Estimate(4 Nos.)
Ext.A4 : Retail invoice dated, 31-01-2012 from Premier Auto Sales & Service, Malappuram.
Ext.A5 : Service cash bill dated, 27-03-2012 from Premier Auto Sales & Service, Malappuram.
Ext.A6 : Complaint Form dated, 25-12-11 by complainant to Kerala State
Northern Regional Consumer-Family Protection Action Council.
Ext.A7 : Photo copy of the driving licence of the complainant.
Ext.A8 : Photo copy of the registration certificate of vehicle No.KL-54-C-2097
Ext.A9 : Photo copy of the fitness certificate from Sub RTO., Ponnani.
Ext.A1 0 : Photo copy of the Certificate of insurance of passengers carrying
commercial vehicle
Ext.A11 : Photo copy of the Contract Carriage Permit of vehicle No.KL-54-C-2097
Ext.A12 : Photo copy of the Certificate of verification of Controller of Legal
Metrology, Krerala.
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 to B5.
Ext.B1 :
Ext.B2 : Job card dated, 03-11-2011 by Premier Auto Sales & Service, Malappuram to complainant.
Ext.B3 : Job card dated, 05-12-2011 by Premier Auto Sales & Service, Malappuram to complainant.
Ext.B4 : Job card dated, 31-01-2012 by Premier Auto Sales & Service, Malappuram to complainant.
Ext.B5 : Job card dated, 27-03-2012 by Premier Auto Sales & Service, Malappuram to complainant.
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K. MOHAMMED ALI, PRESIDENT
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R. K. MADANAVALLY, MEMBER
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MINI MATHEW, MEMBER
