D.O.F. 17.11.2008

                                            D.O.O. 30.11.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                  :                President

                   Smt. K.P.Preethakumari   :               Member

                   Smt. M.D.Jessy                 :               Member

Dated this the 30^th day of November,  2011.

C.C.No.278/2008

Balakrishnan,

S/o. Achutha Kurup,

Kandoth House,                                                   :         Complainant

Varam P.O., Kannur.

(Rep. by Adv. E. Sanilkumar)

1. M/s. Mahindra & Mahindra Ltd.,

    Gateway Building,

    Appolo Bunder, Mumbai – 400 039

    Represented by its Managing Director

2. Manager,

    Kalpaka Motors,

    P.V. Sani Road,

    Calicut – 2.

3. Manager,                                                          :         Opposite Parties

    Kalpaka Motors,

    Thilleri Road,

    Nr.Hotel Savoy, Kannur -1.

4.  The Manager,

     Mahindra Finance, Danas Centre,

     Thiruvangad P.O.,

     Nr. Town Bank Auditorium,

     Kannur.

5.  M/s. Mahindra & Mahindra Fin.Cor. Ltd.

     Cochin

(O.P. No.5 Rep. by Adv. John Joseph)

O R D E R

Smt. K.P. Preethakumari, Member

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite parties No.1 to 3 to repay             ` 75,000 paid by the complainant to opposite parties No.4 and 5 and also to direct opposite parties No.4 and 5 not to take stringent actions against the complainant by way of recovery.

          The case in brief of the complainant is that attracted by the advertisement given in Newspaper, he had purchased Mahindra Champion V-S-II from 3^rd opposite party for earning for his livelihood on 18.11.2006, manufactured by 1^st opposite party under the financial assistance of 4^th and 5^th opposite parties. The running condition of the above said vehicle was not in good condition and could not operate the same and was not able to repay the same amount.  The complainant had paid same installments to 4^th opposite party by borrowing money from his friends and relatives.  Since the vehicle was not in good condition, it was need to be entrusted in workshop, twice or thrice in a week.  The opposite parties have shown unfair practice by giving false advertisement in the news paper.  So the complainant issued notice to the financier to repossess the vehicle and hence the 4^th opposite party repossessed the vehicle.  The vehicle has the following defects such as consumption of more oil, gear box complaint, slipping of gear, breading of pressure plates, breaking of engine mountain due to engine vibration, charging of battery due to complaint in alternative dynamo, front wheel slipping, defective break system, starter complaint, head casket complaint due to non-working of cooling system, frequent change of rubber pad, defective coil spring and show case gear etc.   So the complainant had issued registered lawyer notice to all opposite parties.  But they have not complied the notice.  Hence the complaint.

          In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version admitting that the complainant had purchased a Mahindra Champion Vehicle from 1^st opposite party.  But contended that the complainant is not a consumer since he had purchased the vehicle for commercial purpose and hence the grievance of the complainant can be adjudicated only through Civil Court.  The 1^st opposite party has no transaction with the complainant since the vehicle was supplied to 2^nd opposite party on bulk orders and hence there is no privilege of contract with the complainant.  So the complaint is liable to be dismissed.  The complainant has to produce related documents to prove the purchase of the vehicle.  The 1^st opposite party has never made any advertisement with respect to oil consumption.  The 4^th and 5^th opposite party has no connection to other opposite parties.  From enquiry it is revealed that the complainant had never bought the vehicle to workshop as alleged by the complainant.  The vehicle was brought before service centre for free service on 10 occasions.  The 1^st opposite party has never made any false representations about standard, quality and had never committed an act of deception on the complainant as a consumer.  The averment that the vehicle is used for the livelihood of the complainant is not correct and the vehicle is not used by the complainant.  If the vehicle is performing poorly it is due to the manhandling of the vehicle.  The 1^st opposite party has no knowledge about the registered letter and re-possession of the vehicle by 4^th and 5^th opposite parties.  The 1^st opposite party has never sold any vehicle by misrepresentation and hence there is no unfair practice on the part of 1^st opposite party.  The complainant has no bonafide to contended that the vehicle has to be taken back and to release the amount paid.  The vehicle has no defects as alleged.  If it was any defect it was due to manhandling of the vehicle of the complainant.  No major complaint was reported at any time when the vehicle was brought before 2^nd and 3^rd opposite parties for service and the complaints mentioned in the complaint is only for the purpose of the case and to get unlawful gain. There is no merit in the lawyer notice issued by the complainant.  There is no deficiency of service on the part of 1^st opposite party and hence the complaint is liable to be dismissed.

          2^nd and 3^rd opposite parties also filed version admitting the purchase.  Nothing is stated in the advertisement with respect to oil consumption and as per job card the complainant has no complaint regarding oil consumption and oil change was done by him only in the prescribed Kilometers.  It is not correct to say that the complainant had brought the vehicle to the workshop for twice in a week.  Actually the vehicle was brought for repair total 10 times including 6 free services and is shown in the job card issued by opposite parties.  It is not correct to say that the complainant had purchased the vehicle for his livelihood.  It is used for commercial purpose and some other drivers are using the vehicle.  There was no manufacturing defects and the damage was caused due to the careless handling of the vehicle by the driver.  The 2^nd and 3^rd opposite parties has no knowledge about handing over the possession or sale etc.  On perusal of job cards, the dates, Kms nature of defects noted, the replacement given under warranty etc shows that there is no manufacturing defects and there is no deficiency of service on the part of opposite parties. If the vehicle has any defect it was not because of any manufacturing defect but due to mishandling of the vehicle.  The oil consumption is same as offered.  The complainant has not reported any major defects about gear box in any arrival.  Only after 10^th month of purchase at the 8^th arrival the problem of gear slipping was reported and the same was cured.  On 9^th arrival on 15.11.07 a major complaint regarding engine was reported and the same was cured by replacement of crank shaft and timer assembly under goodwill warranty.  On 10^th arrival there was no gear related issues and engine problem.  The total cost incurred by the complainant for 20 month is 12,371.66.  So there is no deficiency of service on the parts of 2^nd and 3^rd opposite party and hence the complaint is liable to be dismissed.

          The 4^th and 5^th opposite parties also filed version contending that Forum has no jurisdiction to try the case since there exists an arbitration clause.  The 4^th and 5^th opposite parties admits that complainant had availed a loan of ` 1,45,000 from opposite parties for purchasing the vehicle.  The Mahindra and Mahindra Finance Company is an independent concern provides financial assistance to the public.  The complainant is a chronic defaulter and was repossessed vehicle on account of default of payment.  After July 2008, the complainant has not paid any amount to opposite parties.  It is not correct to say that the complainant had purchased the vehicle for the purpose of earning his livelihood and not for commercial purpose.  The vehicle was run by some other person and not by the complainant. The complainant has no cause of action against the opposite parties and is not entitled to seek the relief claimed against 4<sup>th</sup> and 5<sup>th</sup> opposite parties.  The complainant is liable to pay ` 4380 equal 48 monthly isallments from 17.11.06 and in case of single monthly installments has defaulted the opposite parties are entitled to repossess the vehicle as per the H.P. agreement.  Since the complainant had defaulted payments the opposite parties have repossessed the vehicle and hence there is no deficiency of service on the part of 4^th and 5^th opposite parties and hence the complaint is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

1.        Whether the complainant is a consumer and the Forum has jurisdiction to try the case?

2.        Whether there is any deficiency of service on the part of opposite parties?

3.        Whether the complainant is entitled to any relief?

4.        Relief and cost.

The evidence in the above consists of the oral testimony of PW1 to PW3 and DW1 and DW2 and Ext. A1 to A30 and B1.

Issue No.1 :

          The opposite parties in the above case contended that the complainant is not a consumer and the Forum has no jurisdiction to try the case since the complainant has purchased the vehicle for commercial purpose and an arbitration clause existing in the H.P. agreement.  But in the complaint, the complainant contended that he had purchased the vehicle for earnings his livelihood.  Eventhough the opposite parties contended that the complainant had purchased the vehicle for commercial purpose, they have not produced any documents to prove that the complainant have other means for his livelihood other than the income from impugned vehicle.  Moreover in Skypark Couriers Ltd Vs Tata Chemicals, the Hon’ble Supreme Court held that even if there exists an arbitration clause in an agreement and a complaint is made by consumer in relation to deficiency of service, then the existence of arbitration clause will not be a bar to the entertainment of the complaint by redressal agency constituted under the Act, since the remedy provides under the Act is in addition to the provisions of any other law for the time being in force, which was reported in AIR 2000 SC 2008.  So we hold the view that the complainant is a consumer and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.

Issue No.2 to 5 :

          The complainant’s further case is that due to inherent mechanical defect, he was not able to use the vehicle properly and earn money and hence he was failed to repay the finance amount in time.  As a result, the vehicle was surrendered before 4^th and 5^th opposite parties and hence opposite parties No.1 to 3 are liable to refund the above said amount to complainant. In order to prove his case he had examined PW1 to 3 and documents such as copy of lawyer notice dated 04.08.08, postal acknowledgments 4 in numbers, reply of 4^th opposite party, 26 repairing bills and paper advertisement etc.  In order to disprove the case the opposite parties also examined DW1 and 2 and produced documents such as loan agreement.  The complainant contended that the vehicle has inherent manufacturing default and the vehicle had entrusted the workshop twice every week and produced 26 bills to prove this.  Admittedly the complainant had purchased the vehicle on 18.11.06 and 4^th and 5^th opposite parties repossessed the vehicle.  The complainant had issued Ext.A1 notice to opposite parties only on 04.08.08 after 1 ½ years of purchase.  Moreover eventhough the complainant had contended that the vehicle has manufacturing defect, there is no document before us to show that the vehicle has manufacturing defect.  Moreover the complainant has not taken out an expert and call for expert’s report, in order to prove his contention.  It is true that the complainant has produced some bills, but it is not helpful to came to the conclusion that the vehicle has manufacturing defect. So the complainant failed miserably in convincing the Forum that the Vehicle has defect as stated in the complaint.  According to the complainant the production of these types of vehicle was stopped by 1^st opposite party due to inherent defects.  But the DW2 deposed that “]pXnb technologies with new model hcp-t¼mÄ ]gb model ]n³h-en-¡m-dp-­v.”  But the complainant has not taken any steps to disprove this and to prove his contention that the production was stopped due to inherent defects of the model.  So from the available evidence on record, it is seen that complainant has failed to establish and convince the Forum that the vehicle has manufacturing defects.  So we are of the opinion that the complaint is liable to be dismissed and order passed accordingly.

          In the result, complaint dismissed. No cost.

                              Sd/-                    Sd/-               Sd/-                                                         

President              Member          Member

APPENDIX

Exhibits for the Complainant

A1.  Lawyer notice.

A2. (a), (b), (c), (d) : Acknowledgments.

A3. Reply notice dated 18.08.08 issued by Mahindra.

A4  to A29 :  Cash bills.

A30.  News paper advertisement.

Exhibits for the opposite party

B1.  Loan Agreement.

Witness examined for the complainant

PW1. P.K. Balakrishnan

PW2. Sunil Kumar

PW3. K. Chandran

PW4.  Babu Jose

Witness examined for opposite party

Nil

/forwarded by order/

                                                                     SENIOR SUPERINTENDENT