Kerala

Idukki

CC/273/2017

PrinceMon - Complainant(s)

Versus

Managing Director Eicher Motors - Opp.Party(s)

Adv.Shiji Joseph

30 Aug 2022

ORDER

DATE OF FILING :29.12.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  30^th  day of   August, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.273/2017

Between

Complainant                                            :   Prinsumon, S/o. Bhuvanachandran,

                                                                    Priya Bhavan,

                                                                    Koottar P.O.,

                                                                    Edatharamukku, Nedumkandam.

        (By Adv:  Shiji Joseph)

And

Opposite Parties                                       : 1. Eicher Polaris Pvt. Ltd.,

                                                                      Plot No.SP 02 RIICO Industrial Area,

                                                                      Kukas, Jaipur, Rajasthan.

                                                                      Represented by

                    The Managing Director.

           (By Adv: Sharan Shahier)

      2.  Kainikkara Motors,

                                                                      Opp. Govt. College, Nattakam P.O.,

                                                                      Kottayam.

                                                                       Represented by its Manager.

                                                                 3.  Harilal P.K.,

          Sale Executive,

         Multix, 3^rd Floor, Select City Walk A3,

                                                                      District Centre Saketh,

                                                                      New Delhi.

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 (the Act, for short).  Case of complainant is briefly discussed here under :

 

Complainant is welder by profession. 1^st  opposite party is manufacturer of the vehicle, known as Multix vehicle. 2^nd  opposite party is a dealer of this vehicle and 3 rd opposite party is Sales Executive attached to 2^nd  opposite party. 3 rd opposite party by convincing the complainant that the vehicle was useful for travelling, that it is a luggage                                                                                                                     (cont….2)

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carrier and apart from this there is a built in generator also in the vehicle, made him purchase the same. Since complainant thought that the generator in the vehicle will be useful for welding jobs in case of power failure, He had opted for purchasing the vehicle. Accordingly, he had paid Rs.3,79,691/- inclusive of all taxes and charges and had taken delivery of the vehicle from 2^nd  opposite party on 2.9.2017. After purchasing the vehicle, when the complainant was taking it to his house, which is situated in a hilly terrain, vehicle was found to be under powered and struggling to climb up slopes. While it was taken out subsequently, it’s engine had stalled when it reached Ramakkalmedu. Complainant had informed 2^nd  opposite party about this on 18.9.2017. 2^nd  opposite party had taken back the vehicle for rectifying the defect. However, he was not successful in curing the defect, despite repeated trials to make the vehicle road worthy. On 18/09/2017 itself, manager of 2^nd  opposite party had informed the complainant that the vehicle was not road worthy and hence they are refunding the price received from complainant. Vehicle was not returned to complainant after it was taken on 18th of September. Despite repeated demands, price of the vehicle was not refunded by 2^nd  opposite party. On 27.9.2017, a lawyer notice was issued to O.P.1 and O.P.2 by complainant demanding refund of vehicle cost and Rs.1 lakh as compensation. Though opposite parties had received notice, they had refused to comply with the same. Complainant alleges that a defective product was sold to him by 2^nd  opposite party, that there was misrepresentation from the side of 3 rd opposite party with regard to road worthiness of the vehicle. 1^st  opposite party being a manufacturer is also liable for the defective product. Hence complainant prays for refund of Rs.3,79,617/- along with 18% interest from the date of purchase till payment or realisation from O.P.1 & 2. He further seeks a compensation of Rs.1 lakh from opposite parties 1 to 3 for the defect in goods and deficiency in service. He also seeks Rs.10,000/- towards litigation cost from opposite parties.

 

                    Complaint was admitted and notice was issued to opposite parties 1 to 3. Opposite parties 2 and 3 have not appeared or filed any written version. 1^st  opposite party has filed written version. Its contentions are briefly discussed here under :

 

          According to 1st opposite party, complainant had purchased the vehicle for commercial purpose and therefore he will not come within the definition of the term, ‘consumer’, under the Act. Secondly, there is no cause of action against 1^st opposite party. Thirdly, this Forum does not having territorial jurisdiction to entertain the complaint. Coming to the alleged defect in the vehicle, opposite party No.1 would submit that vehicle was purchased after the complainant was satisfied of its road worthiness. Complainant had taken a test drive of the vehicle and it was only after this that he had opted to purchase the same. Before purchasing the vehicle, complainant was informed about features, in particular, about engine power of the vehicle as mentioned in                                                                                                       (cont…..3)

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its brochure and owners’ vehicle manual. After being fully aware of the features of vehicle and being satisfied of its road worthiness, complainant had purchased the vehicle. Allegation that the vehicle had stalled and that its engine was under powered are false. Generator set is not a part of the vehicle, but is only an accessory, which is purchased additionally. Complainant had purchased the vehicle knowing fully well what terrains could be traversed using the vehicle and its engine power specifications. The vehicle Multix MX performs only in the terrain mentioned in the owners’ manual. 1^st  opposite party had not informed the customer that vehicle had any defect and that could not be rectified. When complainant approached 1^st opposite party voicing apprehension about the engine, opposite party had immediately looked into the complaint, taken out a test drive of the vehicle and found that the vehicle was of the specifications promised by company. Complainant had deliberately concealed the weight of load, which was carried by the vehicle. Every vehicle has a capacity, subject to a maximum, for pulling the load and also regarding steepness of terrain it could climb. If the vehicle is over loaded, it cannot climb high upon steep terrains. Allegations to the effect that the vehicle was defective are false and made with an intention to make undue gains from 1^st  opposite party. Claim is misplaced and without any basis. Compensation claimed along with refund is excessive. Complainant is not entitled for the reliefs prayed for. There was no deficiency in service, defect in goods or unfair trade practice from the part of 1^st   opposite party. Hence complaint is to be dismissed with costs.

 

          During the course of proceedings, upon application by complainant, Joint RTO, Udumpanchola was appointed as Expert Commissioner for testing the vehicle. Since vehicle was not registered or insured, Joint RTO had informed that he was unable to drive and test the same. His report to this effect, which is admitted as Ext.C1 does not throw any light upon controversy. Thereafter case was posted for evidence, after giving sufficient opportunity to both sides to take steps. On the side of complainant, he himself was examined as PW1. Exts.P1 to P6 and Ext.C1 were marked. No evidence was tendered by 1^st opposite party. Hence evidence was closed and both sides were heard. Now points which arise for consideration are :

1) Whether complaint is maintainable ?

2) whether vehicle sold to complainant was manufactured by 1^st  opposite party and sold to him by 2^nd  opposite party ?

3) whether 3^rd  opposite party had misrepresented material facts regarding road worthiness of the vehicle to complainant ?

4) whether the vehicle was defective ?

5) whether complainant is entitled to get price paid for the vehicle from opposite parties 1 and 2 ?

6) whether complainant is entitled to get compensation for deficiency in service from opposite parties 1 to 3 ?

7) Reliefs and costs ?                                                                                  (cont….4)

-  4  -

Point Nos.1 to 6 are considered together :

 

          Complainant has a welding workshop wherein he along with 5 of his workers are managing the work. Evidence indicates that this workshop is a means of complainant’s self employment and therefore complainant comes within the definition of the term ‘consumer’ under the Act by virtue of explanation to Sec.2(1)d of the Act. As per Sec.11(2)c complaint can be instituted where cause of action had in part or whole had arisen. Therefore technical contentions advanced regarding lack of inherent and territorial jurisdiction do not survive. PW1, the complainant has given evidence with regard to facts alleged in his complaint. Ext.P1 is computer print out taken by complainant with regard to loan availed by him from State Bank of Travancore, for purchase of vehicle. Ext.P2 is a proforma invoice issued by 2^nd opposite party with regard to purchase of vehicle. Ex showroom price of the vehicle is Rs.3,44,022/-. Insurance amount is Rs.13,929/- and road tax paid is Rs.21,740/-. Total would come to Rs.3,79,691/-. Ext.P3 is a pamphlet describing the vehicle as a ‘3 in 1’ implying that it is suitable for family purpose, business and also for generating power. Ext.P4 are computer print outs pertaining to proceedings initiated upon the application by complainant for getting the vehicle registered in the name of complainant by 2^nd  opposite party. Ext.P5 is a letter addressed to Sales Head of 2^nd  opposite party from the Branch Manager of SBI, Koottar. Ext.P6 is office copy of lawyer notice issued at the instance of complainant to 1^st and 2^nd opposite parties, dated 27.9.2017. Evidence of complainant and documents produced would certainly prove that complainant had purchased the disputed vehicle manufactured by 1^st  opposite party and sold by 2^nd  opposite party, its dealer. Complainant has alleged that 3 rd opposite party is Sales Executive of the 2^nd opposite party. This fact has not been disputed by 2^nd  opposite party as he is exparte. Neither is the fact seen disputed during cross examination of complainant by 1st opposite party.

 

          According to complainant, the vehicle could not traverse hilly terrain and it had stalled near Ramakkalmedu. This, according to complainant, was due to defect of vehicle. As mentioned earlier, Ext.C1 report does not throw any light upon this controversy. However, complainant had alleged that the vehicle was taken back by 2^nd opposite party on 18.9.2017 for repairs and thereafter not returned. 2^nd  opposite party has not appeared or disputed this contention. The fact that the vehicle was taken back by 2^nd  opposite party would corroborate the case of complainant of the vehicle being defective. Though 1^st  opposite party has disputed this fact, it had not tendered evidence to prove that the vehicle was free of defects. Contentions that the vehicle was made specifically for some terrains and not suitable for all terrains, so taken in the written version are vague and not specific. 1^st opposite party has its own skilled employees engaged in the manufacture of the vehicle, who could have been summoned and                                                                                                                       (cont….5)

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examined by it to prove the condition of the vehicle. This has not been done. Aspersions that it will not pull if over loaded and that the vehicle may have stalled due to extreme conditions for which it was not suitable are devoid of any merits. The fact that the complainant had taken a test drive of the vehicle will not imply that the vehicle was free of defects which could not be noticed by the complainant. Ordinarily, no dealer would allow any customer to carry out extreme test drives to explore full potential of vehicle, lest it may sustain serious damages. Therefore, the fact that a test drive of vehicle was taken by complainant before purchase, will not absolve liability of manufacturer or dealer if the vehicle is proved to be defective, after purchase. The very fact that the vehicle was taken back by 2^nd  opposite party and not returned by itself indicates that the vehicle had defects as pointed out by complainant. 1^st opposite party, being manufacturer of the vehicle and 2^nd opposite party being dealer are jointly and severally liable to refund full amount paid by complainant towards purchase of vehicle, its road tax and insurance. Entire amount was collected by 2^nd opposite party. Complainant is entitled to get Rs.3,79,691/- with interest at the rate of 12% from 2.9.2017 till date of payment or realisation, from 1^st  and 2^nd  opposite parties.

 

          It is the case of complainant that 3 rd opposite party had misrepresented facts with regard to road worthiness of vehicle. He has also tendered evidence in this regard. Pleadings and evidence of complainant to this effect have not been controverted by 2^nd and 3^rd opposite parties. Both have remained exparte. Therefore, we find that 3 rd opposite party who was the sales executive of 2^nd  opposite party had misrepresented facts with regard to road worthiness of the vehicle to complainant, induced by which the complainant had purchased the same. There is deficiency in service on the part of 3 rd opposite party for which 2^nd  opposite party is also vicariously liable. There is no case for the complainant that 3 rd opposite party is an employee of 1^st opposite party. That being so, compensation for deficiency in service should come from 2^nd  and 3^rd opposite parties who are liable jointly and severally. 1^st opposite party having manufactured the vehicle which was defective, has also caused financial loss, inconvenience and mental agony to complainant. He is also liable to compensate the complainant on this count. Upon a fair measure, we find that 1^st  opposite party should compensate the complainant by paying Rs.50,000/-, 2^nd and 3^rd opposite parties by paying Rs.25,000/- each. 2^nd opposite party being vicariously liable for payment of compensation by 3 rd opposite party also. Opposite parties 1 to 3 will be also liable to pay Rs.5,000/- towards litigation cost of complainant. Point Nos.1 to 5 are answered accordingly.

 

Point No.6:

 

          In the result, this complaint is allowed in part, upon the following terms :

                                                                                                                                                                                                                                                (cont....6)

-  6  -

1. Opposite parties 1 and 2 are directed to pay Rs.3,79,691/- with interest at the rate of 12% per annum from 2.9.2017, till date of payment or realisation. Liability to pay the amount will be joint and several.

 

2. 1^st opposite party is directed to pay Rs.50,000/- as compensation to complainant.

 

3. 2^nd and 3^rd opposite parties are directed to pay Rs.25,000/- each as compensation to complainant. In case, 3 rd opposite party does not pay his share of compensation, complainant will be entitled to realise this portion also from 2^nd  opposite party, who is vicariously liable for the acts of 3^rd  opposite party.

 

4. Opposite parties 1 to 3 shall pay Rs.3000/- each as litigation cost to complainant.

 

5. All the amounts shall be paid within a period of 30 days from the date of this order. In case of non payment, amount mentioned in clause 2 and 3 shall carry interest at the rate of 12% per annum from the date of this order till date of payment or realisation.

 

 

                        Pronounced by this Commission on this the   39^th day of August, 2022

 

 

                                                                                          Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

 

                              Sd/-

SMT. ASAMOL P., MEMBER

 

 

                        Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

                                        (cont....7)

 

• 7  -

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        -  Prinsumon P.B.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -   computer print out of loan availed by him from State Bank of Travancore.

Ext.P2    -   proforma invoice issued by 2^nd opposite party.

Ext.P3   -   a pamphlet describing the vehicle as a ‘3 in 1’.

Ext.P4   -   application for registration of vehicle.

Ext.P5   -  letter addressed to Sales Head of 2^nd OP from SBI, Koottar.

Ext.P6   -  office copy of lawyer notice issued to 1^st and 2^nd opposite parties.

Ext.C1  -  Commission report.

On the side of the Opposite Party :

Nil.

 

 

 

                                                                                                                                  Forwarded by Order,

 

 

                                                                                   ASSISTANT REGISTRAR