IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    16^th      Day of  December  2021

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

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.301/16

Sasikapoor                                                               :         Complainant

S.S Bhavan,

Vengara, Thodiyoor North

Karunagappally, Kollam.

(Represented by his power  holder

Sasikumar, S.S.Bhavan

Vengara, Thodiyoor North

Karunagappally, Kollam)

[By Adv.A.Omanakuttan&Adv.Shoba Joy]

V/s

1.          M/s International Cars and Motors Ltd.   :         Opposite parties

Village Chak Gujran P.O

Piplawalan, Jalandhar Road,

                  Hoshiarpur-146001(Pb)

(Represented by its Managing Director/Chief Executive)

[By Adv.Jyothisagar.V]

2.        Daiwik Motors Pvt. Ltd. Code No.28041

Jane&Jane Arcade

Cheppally Jn,

Sakthikulangara, Kollam.

[By Adv.S.Riyas]

FINAL    ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          1. This is a case filed by the power of attorney holder of the original complainant filed u/s 12 of the Consumer Protection Act 1986.

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

          The 1^st opposite party is the manufacturer of EXTREME VD Taxi Cab.  2nd opposite party is the authorized dealer of the 1^st opposite party and 3^rd opposite party is the hire purchaser/financier of the car.  On believing the advertisement regarding the vehicle/goods on various media and assurance of the 2^nd opposite party dealer at Karunagappally, on  28.02.2014 the complainant purchased good Taxi cab by  name EXTREME VDDIBS presently bearing Registration No.KL 23 J 197 by expending Rs.9,82,268/- as cost of the vehicle including accessories, registration, insurance, road tax etc.  During the course of free service itself the said vehicle revealed various mechanical complaints and at each time the 2^nd opposite party assured that those are only initial problems with all vehicles and  will be cured by the last free service.  But even after the free service at the 2^nd opposite parties authorized service point at Kottarakkara on 10.12.2015 the defect was available in the vehicle.  The complainant came to know that the 2^nd opposite party shop and service point at Sakthikulangara and Kottarakkara had been closed by deceiving hundreds of  ICML customers in the State of Kerala.  Even telephonic contact proved futile.  The complainant and other customers of ICML vehicle has been keeping the vehicle in an idle condition for want of genuine spare parts, proper service and maintenance of vehicle for the last 1 year.  As the vehicle lost road worthiness, it is kept at the complainant’s house in idle state.  As a result an amount of Rs.6,35,206/- as on 25.08.2015 has fallen due to the 3^rd opposite party.  He is totally incapacitated to pay the remaining hire-purchase amount to the 3^rd  opposite party, as the goods turned unworthy to be used as taxi cab.  1^st and 2^nd opposite party are liable to compensate the loss occurred to the complainant which amounts to the tune of Rs.9,82,268/- and the 3^rd opposite party has to be restrained from realizing the balance hire purchase loan amount to the tune of Rs.8,00,000/- by stay order from this Forum/Commission.  The complainant ins also entitled to Rs.1,00,000/- towards compensation for the loss and hardship occurred to him by the illegal act  of the 1^st and 2^nd opposite party.  Hence the complaint.

3.  Originally there were three opposite parties.  Subsequently as per order in IA.188/16 dated 08.12.16 the 3^rd opposite party was deleted from the party array. 

          4.  In response to the notice opposite party No.1&2 entered appearance and filed separate versions.  The contentions of the version filed by the 1^st opposite party in short are as follows.  The complaint is not maintainable either in law or on facts.  The complainant is not a consumer as defined under the Consumer Protection Act.  Admittedly the complainant has been using the vehicle for commercial purpose as Taxi cab for gaining profit and hence this Forum has no jurisdiction to try the case and the complainant is liable to be dismissed in-limini.  The complaint is very vague and false.  No detailed description or the nature of the so called defects in the vehicle have been averred.  However the 1^st opposite party would admit that the 1^st opposite party is the manufacturer and the 2^nd opposite party is the authorized dealer of the EXTREME VD Taxi Cab in Kollam.  The 1^st opposite party being the manufacturer appointed  its dealers on principle to principle basis and sells the vehicle to the dealers and ultimately the dealers sells the same vehicle to their customers against their own invoice.  The 1^st opposite party never deals with any customer directly.  Hence there is no privity of contract between the 1^st opposite party and the complainant.  Therefore the complaint is bad for misjoinder of parties.  1^st opposite party used to manufacture the vehicle with standardized  technique and quality control  system of ISO 9001 &ISO 14001.  After proper testing and quality check by the Government’s authorized agency the vehicle are send to dealers for sale.  The 1^st opposite as its authorized service centre in Kerala which has fully equipped workshop having fully trained service advisors, mechanic and helpers who are competent to attend their customers.  There are 9 service centers working in Kerala.  Spare parts worth crores of rupees have already been purchased by the said service centre.  The complainant did not avail  regular service in proper time.  The date of purchase of the vehicle and details of its service are suppressed by the complainant.  The complaint is barred by limitation.  The vehicle is out of warranty.  The allegation that no after sale service are available is utter falsehood.  The 1^st opposite party has provided all the best services to the customers.  All the complaint has been attended by the opposite parties by properly answering their demands .  There is no question of deceiving the ICML customers in Kerala.  After closing the 2^nd opposite party’s service point they directed their customers to avail service from the nearest service point.  The complainant is guilty not getting all the service stipulated in the service manual and the service are not averred in time.  Inorder to save from the recovery proceedings and repossession of the vehicle by the financier the complainant was not plying the vehicle to avoid payment to arrears of  loan.  It is utter false hood that the vehicle showed mechanical problem and the complainant did not get any proper service nor reported to the 1^st opposite party.  The claim of the complainant that he has not been using the vehicle for one year is not believable at any point of time the complainant has not send any  notice requesting any kind of service from the 1^st opposite party.  No manufacturing defect were alleged.  It is incorrect that the complainant has suffered a loss of  Rs.9,82,268/- as alleged.  The said claim is baseless, imaginary and having no nexus with reality.  1^st opposite  party is not liable to make any payment to the complainant.  The complainant is having no cause of action against the 1^st opposite party who has been unnecessarily arrayed in this case.  The 1^st opposite party is not liable to pay any compensation.  The 1^st opposite party further prays to dismiss the complaint with their costs and compensatory costs.

          5.  2^nd opposite party has filed separate version raising more or less same contentions.  However apart from the contentions of the 1^st opposite party the 2^nd opposite party would content that it is the only dealer of 1^st opposite party and having no role of what so ever in the manufacturer of the vehicle.  However the 2^nd opposite party would admit that the complainant had purchased the disputed EXTREME VD Taxi Cab from the 2^nd opposite party on 28.02.2014, that the complainant had purchased the same on his own free choice and free will after fully satisfied with the quality and performance of the vehicle.  The 2^nd opposite party is not aware of any bank loan arrangement entered into by the complainant for the purchase of the vehicle.  There is no unfair trade practice or deficiency in service on the part of the opposite party as alleged in the complaint.  The 2^nd opposite party had never canvassed the complainant or any person conveyed the advantage of the goods or other Taxi cab.  The 2^nd opposite party provides good service to its customers and also provides genuine spare parts to the vehicle manufactured by the 1^st opposite party.

          6.  The vehicle was  serviced to the entire satisfaction of the complainant on all occasions he visited the service centers.  The complainant has not made any specific complaints on the performance of the vehicle during production of vehicle for servicing or repair.  Whatever complaints reported were promptly attended to, repairs and rectified to the satisfaction of the complainant by the opposite party. The spare parts are available in our service station at Kottarakkara and the vehicle is still available in the market.  The opposite party had never refused to carry out any service subject to the terms and conditions of the owner manual and still continues to do so.  The said vehicle is still in use by the complainant.  The allegation in para 7 of the complaint “during the course of free service itself the goods revealed various mechanical problems and each time the 2^nd opposite party assured that those were only initial problems with all new vehicles and will be cured by the last service” are absolutely false and hence denied.  The 2^nd opposite party or any of his service person had never stated such assurance.  The 2^nd opposite party never conducted a service station at Sakthikulangara.  The said vehicle is still used by the complainant.  The opposite party has been conducting service station of the said vehicles at Karikkakam, Kottarakkara.  If any complaint mentioned in the petition had developed the complainant could have filed an application for expert report at the time of filing the original complaint.  But the complaint has not been filing such a petition for expert report.  As the complainant has not filed any such petition along with the original complaint itself means that there was no complaint at the time of filing this case.  The said vehicle is still used by the complainant.  The officer of the Motor Vehicles Department, Kerala inspected the said vehicle and issued fitness certificate dated 27.03.2017 for a period from 27.03.2017 to 26.03.2018.  Hence it can be seen that the said vehicle is still used by the complainant without any defects.  If any complaint mentioned in the petition had developed the complainant could have filed application for expert  report at the time of filing the original complaint.  As the complainant has not filed any such petition along with the original complaint itself would indicate that there was no complaint at the time of filing the case.  The vehicle purchased by the complainant is having no problems and routine service or repair to the vehicle was never refused by the opposite parties.  The allegations of non availability of service from the opposite parties and monetary loss to the complainant are a clever ploy to cover up the bank loan default by the complainant.  Since the complainant has caused chronic default in repayment of the bank loan availed for the purchase of the vehicle, the bank officials have started recovery proceedings against the complainant is enacting a drama through a cook and bull story of non performance of the vehicle, defective service and monetary loss etc.  The document produced by the complainant proves beyond doubt that this is a case of bank loan default and the opposite parties are unnecessarily dragged into the scene for a cover operation by the complainant against prosecution by the bank officials.  The opposite party company is carrying out the business of sales and servicing of vehicles for years and enjoys trust and reputation of the general public.  The complainant is trying to take undue advantages of his own negligence and latches and willful default of bank loan.  The false allegations by the complainant are intended to tarnish the image and goodwill enjoyed by the opposite parties.  There is no deficiency in service or unfair trade practice on the part of the 2^nd opposite party.  The 2^nd opposite party is not liable to pay any amount to the complainant as claimed that the amount claimed is excessive, exaggerated and exorbitant.  The  2^nd opposite party further contents that he is not liable for any consequential loss alleged to have been suffered by the complainant nor the complainant is entitled to get any compensation as claimed and also prays to dismiss the complaint with costs and compensatory costs u/s 26 of the Consumer Protection Act.

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

1. Is not the complaint maintainable?
2. Whether there is any deficiency in service  or any unfair trade practice on the part of the opposite party No.1&2 as alleged in the complaint?
3. Whether the complainant is entitled to get Rs.9,82,268/- with interest from the 1^st opposite party by taking back the  vehicle purchased by the complainant.  
4. Whether the complainant is entitled to get compensation from the opposite parties as claimed?
5. Reliefs and costs.

8.  Evidence on the side of the complainant consists of the oral evidence of  PW1 and got marked Ext.P1 to P3, P4 series, P5, P6 series and P7.  Evidence on the side of the opposite party consists of the oral evidence of DW1&Ext.D1 series, D2,D3 series, D4and D5 documents.  The learned counsel for the complainant and  opposite parties No.1&2 filed notes of argument. 

9.  Heard both sides.

Point No.1

          10.  The complaint has been filed u/s 12 of the Consumer Protection Act 1986.  The maintainability of the complainant has been challenged by the contesting opposite parties on the ground that the complainant is not a consumer as defined under the Consumer Protection Act.  Since the complainant has purchased the commercial vehicle and the complainant used for the same vehicle for commercial purpose for plying it as taxi cab for gaining profit the complainant would not come within the purview of consumer.  The term consumer has been defined u/s 2(1)(d) of the Consumer Protection Act.  Accordingly  the term consumer is any person who buys any goods for consideration and includes any user of such goods other than the person who buys such goods for consideration  when such goods used is used with  the approval of such person,  but does not include a person who obtains such goods for resale or for any commercial purpose.  The opposite parties rely  on the exclusion clause of the definition that the taxi cab purchased by the complainant was for commercial purpose and hence according to the opposite parties  the complainant would not come within the purview of the consumer.

          11.  It is true that the complainant has averred as the 1^st sentence in the 1^st paragraph of the complaint that the complainant is a consumer defined u/s 2(d) of the Consumer Protection Act.  The cause titled of the complainant would indicate that Sasikapoor, S.S Bhavan, Vengara is the complainant and his brother  Sasikumar is the power of attorney holder of the original complainant and the present complaint has been filed by the power of attorney holder.  Hence it is to be inferred that the original complainant is alleged to be a consumer as per the above pleadings.  But how he became a consumer is not averred in the complaint.  Admittedly the goods purchased is a commercial vehicle which is a taxi cab manufactured by the 1^st opposite party.  However the complainant has no case either in the complaint or in the proof affidavit that the original complainant has been plying the vehicle for earning his livelihood,  even though the opposite party No.1&2 would content that the complainant is not a consumer.  PW1 Sasikapoor who is  the original complainant has filed proof affidavit in lieu of chief examination by reiterating the averments in the complaint except the averments in the 1^st paragraph to the effect that the complainant is a consumer.  It is brought out in evidence that the complainant was not available at the native place as he has been working in gulf country and the vehicle was plied by his brother as a taxi cab from the very beginning.  However even in the proof affidavit or when PW1  was facing cross examination and re examination the original complainant  has no case that income from the vehicle plied as taxi by his brother was used for avocation of himself and his family.  As the original complainant was in gulf country there is no scope for presuming that the said income is required for his livelihood.  In the circumstance we are of the view that the complainant has utterly failed to plead and prove that he would come within the purview of consumer as defined u/s 2(d) of the Consumer Protection Act 1986.  Points answered accordingly against the complainant.

Point No.2&3

12.     For avoiding repetition of discussion of materials these 2 points are considered together.  On 28.02.2014 the complainant purchased EXTREME VD Taxi Cab manufactured by the 1^st opposite party from the 2^nd opposite party who is the authorized dealer of the 1^st opposite party.  The 1^st opposite party offered service and genuine spare parts of ICML to all its customers.  According to the complainant as the 2^nd opposite party who is the dealer as well as service centre has closed out all its showroom, service points and outlets of genuine spare parts in the year 2016 which is  after 2 years of the purchase of the vehicle.  Hence there was no proper service and availability of genuine spare parts and as a result the taxi cab purchased by him  bearing Registration No.KL23 J 197 has became in a non road worthy condition and hence the complainant suffered loss of  Rs. 9,82,268/- towards the cost and allied expenses.

          13.  The above allegations in the complaint and proof affidavit have been challenged by the opposite party No.1&2 during cross examination.  It is brought out during cross examination of PW1 by the 1^st opposite party that he had purchased the vehicle as it will get more mileage and the price of  the vehicle was also less compared to the other vehicle.  He has not produced warranty card of the vehicle.  Generally the warranty for a new vehicle is provided  for  2 years.  According to PW2 the 2^nd opposite party service station has closed within 1 year of the sale of the vehicle and thereafter when the timing belt was broken the vehicle was brought to one work shop at Pathanamthitta by using  recovery van and get it repaired.  However Ext.D1 series job card would indicate that the 2^nd opposite party service center was working on 21.07.2015 which is about 2½ years after the date of purchase of the vehicle.  As on the date of 21.07.2015 when the vehicle was brought to the 2^nd opposite party service station the odometer has shown  reading of 41375 km.  It is also brought out in evidence that the RTO has tested the vehicle and issued D2 fitness certificate in the year 2017-18.  Ext.D1 and D2 would cut the very root of  the complainant’s case that as all the authorized work shop of the ICML company which manufactured  the car had already closed and therefore his vehicle is not a road worthy condition and he has been keeping the vehicle idle and thereby he sustained heavy loss.  It is brought out in evidence through PW1 that Cu hml\w Ct¸mÄ Rm³ ss{]häv shln-¡nÄ B¡n. SmIvkpw C³jp-d³kpw em`n-¡m³ sNbvX-Xm-Wv. 

          14.  It is also brought out in evidence that during the year 2019 the complainant has renewed the RC, fitness certificate and the expiry of the same is 20.03.2029.  The above documents are marked as Ext.D3 series.  It is clear from the available materials that as the vehicle is not having any mechanical defect the RTO  has issued fitness certificate.  It is also brought out in evidence that when the power of attorney holder of the complainant has filed the complaint the complainant was not available in the native place and the vehicle run 100000kms.  It is also brought out in evidence that at the time of free service after running 35000 kms spare parts have been replaced by the 2^nd opposite party.

          15.  The oral evidence of  DW1 who is none other than the service manager of the 2^nd opposite party would indicate that the complainant has caused to produce the vehicle at the 2^nd opposite party’s service station at Kottarakkara and carried out the free service and as on those days the complainant has not mentioned anything regarding the defect in the performance of the vehicle and the service was satisfactory and the complainant has put his signature in the satisfaction memo and taken back the vehicle.  As and when the vehicle was produced for getting free service the 2^nd opposite party had done all the free service promptly.  In the circumstances we find merit in the contention of the opposite parties that the complainant intended to wriggle out from the liability of the loan available from the bank he has foisted the case by raising the allegations in the complaint against the manufacturer, dealer cum service centre.  It is also brought out in evidence through DW1 that the manufacturer of the car has stopped by the company  during the year 2016.  Thereafter the 1^st opposite party not provided spare parts to the 2^nd opposite party even then the 2^nd opposite party  has continued its  service centre with the available stock of spare parts till the month of August 2018 by sustaining heavy loss.  As the customers have not been approached the service centre and spare parts are not been provided by the 1^st opposite party the functioning of the service station has been stopped by the 2^nd opposite party during August 2018.  Even now the 2^nd opposite party has been keeping the spare parts available.  It is clear from the available evidence that the complainant has brought  his vehicle to the 2^nd opposite party service station on 21.07.2015 and thereafter the complainant has not approached the 2^nd opposite party service centre.  It is brought out during cross examination of the 1^st opposite party that the warranty period is 2 year or 100000 km whichever comes earlier.  In the circumstances it is cristal clear that the opposite parties have closed the service centre much after ceasing the warranty period of  2 year and even after 2 years they continued the service centre and carried out all the free service and the vehicle is not having any substantive manufacturing or mechanical defect.  It has already run about 100000kms at present.  Even now the vehicle is in a running condition and the complainant has converted the same into private vehicle.   The RC and fitness certificate is extended up to 2029.  In the circumstances we find no merit in the case of the complainant and the complainant is not entitled to get any of the relief sought for in the complaint.

16.  On evaluating the entire materials available on record we come to the conclusion that there is no merit in the complaint and the same is only to be dismissed.  The points answered accordingly.

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

 Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  16^th   day of  December   2021.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Stanly Harold:Sd/-

           Forwarded/by Order

           Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :  Sasikapoor

Documents marked for the  complainant

Ext P1 :   Copy of Owner’s details and vehicle details.

Ext.P2         :   Copy of retail invoice dated 28.02.2014.

Ext.P3         :   Copy of RC book.

Ext.P4         :   Copy of contract carriage permit.

Ext  P5        :   Copy of  account details in respect of the hire-purchase loan.

Ext.P6 series:   Bills.

Ext.P7         :    Owner’s manual and service book.

Witnesses Examined for the opposite party:-

DW1           :   Deepak Gopinadhan

Documents marked for opposite party:-

Ext.D1 series:       Copy of job card.

Ext.D2        :         Copy of registration details.

Ext.D3 series:       Copy of vehicle details

Ext.D4        :         Copy of RC/DL status

Ext.D5        :         Copy of RC status.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

          Stanly Harold:Sd/-

          Forwarded/by Order

          Senior Superintendent