By. Sri. Jose. V. Thannikode, President:-

The complaint filed under section 12 of the Consumer Protection Act against the opposite parties for the deficiency of service and unfair trade practice.

2. Brief of the complaint:- The complainant purchased a 3 wheeler goods vehicle of mahindra Alfa bearing Engine No.PIL2052447 from opposite party No.2 which was manufactured by opposite party No.3 and opposite party No.2 has issued Bill in the name of opposite party No.1. The above vehicle registered as KL 12 F 9240 in the Wayanad Regional Transport Office and it was used by the husband of the complainant properly, who got a valid license to ply the vehicle. The first and second (on 03.01.2012 and 10.02.2012) service of the vehicle done from opposite party No.2 and third and fourth service were done from Soorya Motors, Padinjarathara on 13.06.2012 on the advice of the opposite parties and the 5^th and 6^th service were done from opposite party No.2. After 5 months of purchase the vehicle's door, glass frame, platforms and load body shown some unusual rest and it was shown to opposite party No.2, at the same time itself opposite party No.2 promised that they will cure the defects and replace the body within next service after intimating the complainant. But the opposite parties has not acted and not cured the defects in the next service day. But the opposite party No.2 has promised that the complaint was intimated to opposite party No.3 and the body will be replaced as and when the new body available. But on 20.01.2013 also the opposite party No.2 serviced the vehicle but not replaced the body but they assured the same after already given.

3. Due to the damage of body due to rust, the complainant could not run the vehicle hence he stopped the vehicle idle and when the issue is again intimated to the opposite party No.2, opposite party No.2 stated that in the next load the new body will come and it will replace when the load arrives. The complainant is paying the loan installments of Rs.5,000/- each per month after doing coolie work. Due to non curing of the above said defect of the vehicle the complainant caused an average loss of Rs.15,000/- per month. The supply of non standard and manufacturing defective vehicle to the complainant is an unfair trade practice and after noticing of the defects non curing of the defects by the opposite party is deficiency of service also. The complainant further stated that due to this the complaint is entitled for Rs.60,000/- as loss of profits and if the body is not replaced the complainant is also entitled to get Rs.85,000/- as cost of the body.

4. Hence he prayed before the Forum to direct the opposite parties to replace the damaged body or to pay Rs.85,000/- as cost of the body and also directed to pay Rs.45,000/- as already lost profit and Rs.500/- per day and to pay Rs.10,000/- as compensation and to pay cost of proceedings.

5. Notice were served to opposite parties and opposite parties entered appearance and filed version. In the version, opposite party No.1 and 2 stated that the above complaint is not maintainable either under law or on the true facts and circumstances of the matter. The complainant is not entitled to claim or to get any of the reliefs seen prayed for in the complaint, and the same is liable to be dismissed in limine. The complainant is not a consumer as contemplated under the Consumer Protection Act, nor there is a consumer dispute warranting adjudication before this Honorable Forum. There is no defect in goods or deficiency in service. Even going by the allegations contained in the complaint, it is a commercial transaction andhence beyond the purview of adjudication under the Act. It is reliably learned that the complainant is not having license to operate/drive the vehicle, and she has been commercially exploiting the same by engaging paid drivers. The purchase was not for earning her livelihood by means of self employment, and hence the above complaint is not maintainable before this Honorable Forum. The complainant has not approached this Honorable Forum with clean hands. She has suppressed the true, correct and material facts, and has set out untrue, untenable, unsustainable and misleading allegations and claims, which as well disentitles the complainant from claiming or getting any relief under the Act. Without prejudice to the above contentions, this opposite parties submits the following regarding the case and claim seen set out in the complaint. This opposite parties are the authorized dealer and service centre of M/s Mahindra & Mahindra and they have duly performed their obligations without any delay or default, and have been providing all services as a responsible dealer and authorised service centre to the complete satisfaction of all the customers including the complainant. The complainant had approached the first opposite party on 12.12.2011 for purchasing a three wheeled goods carrier manufactured by M/s Mahindra & Mahindra, and after verifying the different models available at the showroom of the first opposite party, she had chosen the vehicle 'ALFA' after being fully satisfied about its quality, performance and standard. The opposite party had specifically apprised the complainant that periodical free service should only be carried out from the service centre of the opposite party at Wayanad. But the complainant without any directions from this opposite party had availed 3rd & 4th free service of the vehicle from Soorya motors at Padinjarathara which is an admitted fact by complaint itself. This opposite party have no connection with Soorya motors at any point of time. For the sole reason the complaint is not maintainable against this opposite party.

6. The husband of the complainant had brought the vehicle several times to these opposite parties for service. But the alleged complaint of rust was not intimated to these opposite parties on any of the above occasions. These opposite parties were intimated about the rust only on 21.05.2013. On the same day the vehicle was thoroughly checked, and it was found that the alleged rust occurred due to the improper, rash and negligent use of the vehicle by the complainant. On that day itself these opposite parties took photograph of the same and had sent service complaint report to the 3^rd opposite party. It is for the 3^rd opposite party, (the manufacturer) to decide whether the load body have to be replaced. These opposite parties had promptly done all that could have been done in the said matter. There are no willful latches or negligence from these opposite parties. Even though there was no liability to change the same free of cost as these opposite parties being a responsible and reputed dealer and service centre these opposite parties came to an amicable settlement with the complainant. As per the settlement arrived before the forum these opposite party had replaced the load body of the said vehicle on 08.02.2014 and full satisfaction of the complainant was recorded. The satisfaction note signed by the complainant's husband is also produced along with this version. The body of the vehicle was replaced with high quality iron sheets and cathode electro deposition coating was used, being highly advanced technique using in the auto mobile industry. This is the best method used in expensive vehicles to avoid rust. It is tested and scientifically approved. This sort of rust will come only if the vehicle is used carelessly and without due care and caution. This, being the true facts and circumstances of the matter, all the allegations and claims contrary to the same contained in the complaint are not proper, correct or sustainable, lacking in truth and bonafides, besides being baseless and ill motivated. The allegations and claims contained in paragraph Nos. 1 to 5 of the complaint are not proper, correct or sustainable, besides being baseless and erroneous. The allegations that the husband of the complainant is a driver having valid license, that the complainant had purchased the vehicle for earning livelihood, that the said vehicle was driven by the husband of the complainant, that the said vehicle was used in a good manner with due care and, caution, that within 5 months of purchase, profuse rust appeared on the two doors, glass frames, front platform and load body of the vehicle, that the rust appeared at the time of the 3^rd service, that the said alleged fact was immediately intimated to the 2^nd opposite party, that these opposite parties gave assurance to the complainant that the body of the vehicle will be changed or repaired before the next service, that even on repeated request these opposite parties failed to do so, that the complainant took the vehicle to the 3^rd opposite party for service, that because of the rust on the body the vehicle was not in a usable condition, that a mechanic of these opposite parties inspected the vehicle and told the complainant that it was an unusual incident and that the 3^rd opposite party agreed to replace the load body as these opposite parties informed the 3^rd opposite party about the incident, that the body will be replaced as soon as the new body arrives, that these opposite parties assured the complainant that there is no need to repair the body as the same would be replaced soon, that for the past 3 months the vehicle could not be used on account of the rust, that after repeated visits and phone calls, the 2^nd opposite party prolonged the matter by assuring and making the complainant believe that the opposite party had not allotted the body to the complainant and that the same would be delivered in the next load, that till date these opposite parties has done nothing to replace the body, that the complainant and her husband are doing coolie work to pay the monthly installment of Rs.5000/- towards the loan amount, that these opposite parties misbehaved to the husband of the complainant, that as the opposite parties did not change the vehicle's body, there is a loss of Rs.15,000/- monthly to the complainant, that there is manufacturing defect and the quality of the material used to build the body is low, that the load body of the vehicle is destroyed by rust beyond repair, that no corrosive materials were transported in the vehicle and the same is carefully washed daily, that there was gross negligence and deficiency in service and unfair trade practice on the part of these opposite parties etc are not proper, correct or sustainable, besides being baseless and false ,cooked up only for the purpose of the case.

7. There is no truth or bonafides on the part of complainant in instituting the above complaint. The same is false, frivolous and vexatious seen indulged in as an experimental and speculative venture, with malafide, avaricious and other ulterior motives. The complainant is not entitled to claim nor is this opposite parties liable or responsible for any of the reliefs seen prayed for in the complaint. No loss, injury or hardship has been caused or occasioned to the complainant on account of this opposite party as seen vaguely contented in the complaint or otherwise. In any view of the matter this opposite parties are not liable or responsible for any of the reliefs seen claimed. Hence prays to dismiss the complaint.

8. Opposite party No.3 in their version denied all the allegation in the complaint and prayed to dismiss the complaint with compensatory cost to this opposite party.

9. Complainant filed proof affidavit of complainant and stated as stated in the complaint and he is examined as PW1 and Exts.A1 to A7 were marked. Ext.A1 is the copy of Driving License of the husband of the complainant. Ext.A2 is the Labour bill issued by the opposite party No.2 to the complainant on 21.05.2013. Ext.A3(1) is the Postal Receipt and Ext.A3(2) is the copy of Notice send by the complainant to the opposite party No.1. Ext.A4 and A5 are the Invoice given by the opposite party No.1 to the complainant. Ext.A6 to A7(3) are the Invoice cum Delivery challan issued by opposite party No.2 to complainant.

10. Opposite parties No.1 to 3 also filed affidavit and stated as stated in their version and opposite party No.1 and 2 is examined as OPW1 and Ext.B1 is marked. Ext.B1 is the satisfaction Note signed by the husband of the complainant and given to the Manager on getting the load body replaced.

11. On perusing the complaint, versions, affidavit and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

12. Point No.1:- On perusing the complaint, versions, affidavit and documents and deposition and argument we came to the conclusion that anyway the opposite party No.1 and 2 admitted that the alleged complaint is reported to this opposite party on 21.05.2013 and 08.02.2014, in their version. Thereafter on identifying the defects opposite party No.1 and 2 has replaced the load body to the complainant on 08.02.2014. OPW1 deposed before the Forum that “the rest alleged in the complaint is admitting”. After reporting the complaint to opposite parties it took 8 months to replace the body, so it is a deficiency of service from the side of opposite parties. After noting the defects the complainant could have plied the vehicle further two months. The opposite parties No.1 and 2 ought to have replace the body at least within 3 months from the date of reporting. The delay thereafter of five months could not be explained by the opposite parties. Hence the opposite party No.1 and 2 is liable for the loss sustained to the complainant for the remaining 5 months. The average profit per day for the said vehicle may come around Rs.500/-. So monthly income come around Rs.12,500/- for 25 days. So Rs.12,500 x 5 = Rs.62,500/-. The point No.1 is found accordingly.

13. Point No.2:- Since the Point No.1 is found against the opposite party No.1 and 2, they are liable to pay the loss, cost and compensation and the complainant is entitled for the same.

In the result, the complaint is partly allowed and the opposite party No.1 and 2 are jointly and severally directed to pay Rs.62,500/- (Rupees Sixty Two Thousand and Five Hundred) as loss caused to the complainant due to the non plying of the vehicle and also directed to pay Rs.5,000/- (Rupees Five Thousand) as compensation and Rs.2,500/- (Rupees Two Thousand and Five Hundred) as cost of the proceedings. The opposite party No.1 and 2 should comply the Order within one month from the date of receipt of this Order. Thereafter the complainant entitled for an interest at the rate of 12% per annum.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 26^th day of June 2015.

Date of Filing:10.10.2013. PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Prabhakaran. Complainant.

Witness for the Opposite Party:-

OPW1. Manoj. Service Manager, KTC Automobiles

Kakkavayal( Formerly known as Kalpaka Motors).

Exhibits for the complainant:

A1. Copy of Driving License.

A2. Labour Bill. Dt:21.05.2013.

A3(1). Postal Receipt.

A3(2). Copy of Lawyer Notice.

A4. Invoice. Dt:03.01.2012.

A5. Invoice. Dt:10.02.2012.

A6. Invoice cum Delivery Challan. Dt:02.01.2013.

A7(1). Invoice cum Delivery Challan. Dt:24.06.2013.

A7(2). Invoice cum Delivery Challan. Dt:24.06.2013.

A7(3). Invoice cum Delivery Challan. Dt:24.06.2013.

Exhibits for the opposite parties:-

B1. Satisfaction Note. Dt:08.02.2014.

Sd/-

PRESIDENT, CDRF, WAYANAD.

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