SMT. RAVI SUSHA: PRESIDENT

Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite parties 1 to 3 @ to refund the value of the vehicle Rs.4,00,000/- b) to pay a sum of Rs.3,00,000/- repair charges c) Rs.1,00,000/- towards compensation together  with cost of the proceedings.

            Brief facts are that the complainant is the owner in possession of the EICHER POL/MULTIX, Registration No.KL-59-Q-6940, Chasis/Engine No.Mandbrbiso 1103906HH/57G8724288 purchased on 18/09/2017 from OP No2&3 and which was manufactured by 1^st OP.  The 4^th OP was the financier.  The complainant submits that the vehicle after running for a few days was showing a tendency of automatically slowing down the speed and not picking up again.  This defect was found at the very beginning stage and was reported at the time of 1^st servicing the vehicle at 2,000 KM.  But the service centre could not resolve the defect completely and the defect continued after the service also.  Moreover the company promised the seating capacity of the vehicle is 4 and maximum is 5.  But the vehicle would not move when there are four passengers in it, the complainant, had to visit various workshops and spend huge sum of money to rectify the defect, but they could not completely   resolve the issue.  As such the defect lingered on causing many hardships to the complainant.  The complainant further submit that the company promised that this vehicle can be used as a truck as well as a traveler, and also promised efficient service centers and assured the availability of spare parts.  But the OP failed to provide good service and also ensure the availability of the spare parts.  The complainant further submit that when the engine of the vehicle finally failed at 28630 KM, he visited the service center and workshops to do the needy but since the spare parts were not available in the open market and they couldn’t repair it.  Altogether for getting the vehicle repaired the complainant had to spent 3,50,000/-.  The complainant further submits that the vehicle had a tendency to automatically slow down while running and not picking up again well within the warranty period.  The complainant had made 40 visits in various workshop and spend a huge amount to rectify the defects.  If the OPs 1 to 3 had been sold a defect less vehicle to the complainant, the complainant did not have to spend a huge amount of Rs.3,50,000/- as repair charge.  Hence this complaint.

            After receiving notices, all OPs filed their contentions through written version.

            1^st OP pleaded that the purchase price of vehicle is not on 18/09/2017, but it was on 31/08/2017.  Further the complainant did not avail the 1^st free service as per vehicle history.  The increasing odometer readings of the vehicle make it evident that the complainant was using the vehicle extensively.  It is accepted at the seating capacity is of 5 persons as per Owner Manual Page No.14.  The vehicle is not having any complaints as alleged by the complainant.  It is started that the vehicles bought from OP No.1 requires routine maintenance and servicing during its usage and normal wear and tear is common during the use of the vehicles.  During servicing of vehicles, some consumables like filters, engine  oil etc. are required to be changed and if other consumables are found less, then the same are also filled up or topped up.  All consumables are on chargeable basis and hence are charged to the customers of OP No.1.  If there is no proper service being done with respect to the vehicle, then the vehicle will face problems due to wear and tear.  There is no unfair trade practice or negligence on the part of the OP No.1.  Hence, prayed for the dismissal of complaint with cost.

            2^nd and 3^rd OP filed joint version admitting that they were the authorized dealer of OP No.1, who is the manufacturer of Eicher/Multix Vehicles and the complainant had purchased above vehicle on 18/09/2017.  These OPs have no role in the manufacturing process of the vehicle.  The vehicle was delivered to the complainant as delivered by OP No.1 to these OPs after pre-delivery inspection.  As per the warranty issued by the manufacturer of the vehicle the liability of the manufacturer is only to repair or replace the defective part, if the defect is caused due to any manufacturing defect of the particular part.  These OP had not issued any warranty or guarantee to the complainant.  The averments in the complainant that  after few days of the purchase of the vehicle, the vehicle showed tendency of automatically slowing down and not picking up speed and reported at the 1^st servicing itself and the service center could not resolve the defect completely etc. are not correct.  Further allegation that the vehicle would not move when there are 4 passengers in it and the complainant had to visit various workshops and spend huge amount to rectify the defects, but they could not completely resolve the issue etc. are not correct.  The engine of the vehicle failed at 28,630 Kms. and he visited the service centre and workshops and he was forced to spend Rs.3,50,000/- to repair vehicle etc. are also not correct.  Defect if any caused to the vehicle is due to improper use and improper maintenance of the vehicle.  There was no manufacturing defects to the vehicle sold to the complainant.  Since the OP NO.1 had terminated the dealership and service centre of these OPs with effect from 25/05/2018, these OPs are not liable to replace the vehicle or to pay the value of the vehicle and to pay compensation to the complaint.  The complainant had not approached these OPs after 25/05/2018 for repair of the vehicle and these OPs are not authorized to carry out the repairs after 25/05/2018. There was no deficiency of service on the part of OPs.  Hence, prayed for the dismissal of complaint. 

            4^th OP has stated that there is no case for the complainant that the  4^th has committed any deficiency of service.  Hence it is submitted that this OP is absolutely an unnecessary party to the dispute.  The issue raised in the compliant is purely a dispute between the complainant and the OPs 1,2 and 3.  There is no privity of contract between OP Nos.1 to 3 and 4.   This OP cannot be burdened with any liability for the defect in service committed by OP Nos.1 to 3.  Hence, prayed for the dismissal of the complaint. 

            At the evidence stage complainant has filed his chief affidavit and documents.  He was examined a sPw1 and marked Ext.A1 to A8.  One more witness, the mechanic in the workshop, Manikadavu Automobile workshope, in which the vehicle is now kept in idle and issused Ext.A8 was examined as Pw2 was subjected to cross-examination by the OPs and Pw2 was cross-examined by OP No.1.

            After that, the learned counsel of complainant and OPs 1 to 3 filed their written argument notes.  We have gone through the documents of complainant, evidence adduced and also considered the submissions of the learned counsels of parties.

            Learned counsel of complainant submitted that the complainant is the owner in possession of the EICHER POL/MULTIX, Registration No.KL-59-Q-6940, Chasis/Engine No.Mandbrbiso 1103906HH/57G8724288 purchased on 18/09/2017 from OP No2&3 and which was manufactured by 1^st OP.  The 4^th OP was the financier.  The vehicle after running for a few days was showing a tendency of automatically slowing down the speed and not picking up again.  This defect was found at the very beginning stage and was reported at the time of 1^st servicing the vehicle at 2,000 KM.  But the service centre could not resolve the defect completely and the defect continued after the service also.  Moreover the company promised the seating capacity of the vehicle is 4 and maximum is 5.  But the vehicle would not move when there are four passengers in it, the complainant, had to visit various workshops and spend huge sum of money to rectify the defect, but they could not completely   resolve the issue.  As such the defect lingered on causing many hardships to the complainant.  The company promised that this vehicle can be used as a truck as well as a traveler, and also promised efficient service centers and assured the availability of spare parts.  But the OP failed to provide good service and also ensure the availability of the spare parts.  When the engine of the vehicle finally failed at 28630 KM, complainant visited the service center and workshops to do the needy but since the spare parts were not available in the open market and they couldn’t repair it.  Altogether for getting the vehicle repaired the complainant had to spent 3,50,000/-.  The vehicle had a tendency to automatically slow down while running and not picking up again well within the warranty period.  The complainant had made 40 visits in various workshop and spend a huge amount to rectify the defects.  If the OPs 1 to 3 had been sold a defect less vehicle to the complainant, the complainant did not have to spend a huge amount of Rs.3,50,000/- as repair charge. 

            On the other hand the learned counsel of OPs 1 to 3 submitted that OPs are

admitting that OPs 2 and 3 were the authorized dealer of OP No.1, who is the manufacturer of Eicher/Multix Vehicles and the complainant had purchased above vehicle on 18/09/2017.  These OPs have no role in the manufacturing process of the vehicle.  The vehicle was delivered to the complainant as delivered by OP No.1 to these OPs after pre-delivery inspection.  As per the warranty issued by the manufacturer of the vehicle the liability of the manufacturer is only to repair or replace the defective part, if the defect is caused due to any manufacturing defect of the particular part.  These OP had not issued any warranty or guarantee to the complainant.  After few days of the purchase of the vehicle, the vehicle showed tendency of automatically slowing down and not picking up speed and reported at the 1^st servicing itself and the service center could not resolve the defect completely etc. are not correct.  The vehicle would not move when there are 4 passengers in it and the complainant had to visit various workshops and spend huge amount to rectify the defects, but they could not completely resolve the issue etc. are not correct.  The engine of the vehicle failed at 28,630 Kms. and he visited the service centre and workshops and he was forced to spend Rs.3,50,000/- to repair vehicle etc. are also not correct.  Defect if any caused to the vehicle is due to improper use and improper maintenance of the vehicle.  There was no manufacturing defects to the vehicle sold to the complainant.  Since the OP NO.1 had terminated the dealership and service centre of these OPs with effect from 25/05/2018, these OPs are not liable to replace the vehicle or to pay the value of the vehicle and to pay compensation to the complaint.  The complainant had not approached these OPs after 25/05/2018 for repair of the vehicle and these OPs are not authorized to carry out the repairs after 25/05/2018. There was no deficiency of service on the part of OPs

            Here complainant has not proved the manufacturing defect of the vehicle.  Further no documents has been submitted by the complainant to show that he had spent Rs.3,50,000/- for the repair work of the vehicle in dispute.  Further except the deposition of Pw2, there is no material evidence to establish that vehicle had been taken to the workshop of Pw2 for the repair work prior to the accident.  The only material evidence before us is the oral evidence o Pw2 and Ext.A8, relating to the defect to the vehicle as alleged by the complaint.  On analyzing the evidence of Pw2, he has stated “ഇപ്പോൾ ഈ വണ്ടി എെൻറ work shop ൽ ഉണ്ട്.  Break fail ആയി accident ആയി crane ൽ കൊണ്ടുവന്നതാണ്.  Parts ഇല്ലാത്തതുകൊണ്ട് നന്നാക്കി കൊടുക്കാൻ പറ്റില്ല.  വണ്ടിയുടെ എഞ്ചിെൻറ Break fail ആയി accident ആകുകയാണ് ചെയ്തത്.” Ext.A8 ൽ പറയുന്ന 14 items ഇപ്പോൾ എവിടെയെങ്കിലും ലഭ്യമാണോ? നിലവിൽ എവിടെയും കിട്ടില്ല. പെരുമ്പാവൂരിലുള്ള ഷോപ്പും പൂട്ടിപ്പോയി.  കേരളത്തിന് പുറത്ത് ഉണ്ടോ എന്ന് എനിക്കറിയില്ല.

            Pw2 has stated that the vehicle is kept idle in his work shope due to non-availability of its spare parts mentioned in Ext.A8.  But no work order or estimate are submitted from the side of complainant to establish the nature of work to be needed to the vehicle.  Moreover no GD entry or FIR also submitted to  show the accident happened to the vehicle as alleged by the complainant.  Pw2 has stated that the accident was happened due to break fail of the engine.  For that also no evidence.  The deposition of Pw2     alone is          not sufficiently.  Moreover Pw2 cannot be considered as an expert.  No document from the service centre is produced.

            Considering the entire facts and circumstances of this case a stated above, complainant has failed to substantiate the manufacturing defect and other defects as alleged by the complainant through material evidence.  Complainant has not produced any piece of evidence to show that the vehicle was taken to the service centre for repair work prior to the alleged accident.  Hence we are of the view that there is no deficiency in service on the part of opposite parties.

            In the result complaint is dismissed.  No order as to cost.

Exts.

A1-Supply order advised to dealer dated 15/09/2017 (Photocopy) produced original  and returned verified.

A2- Quotation performa  invoice dated 18/09/2017

A3- Contract carriage permit (Verified & returned)

A4- Passbook –Kerala Gramin bank dated 15/09/2017(Ulikkal branch)

A5-Certificate of registration dated 26/09/2017 (Photocopy)

A6- Tax license dated 18/09/2017(Photocopy) original verified and returned.

A7- Advertisement by Eicher Polaris.

A8- List of spare note available dated 08/02/2022(orginal  produced & verified returned) (subject to proof)

PW1-Complainant

Pw2- Binu Francis-Witness of complainant

      Sd/                                                                                 Sd/                                                        Sd/

PRESIDENT                                                                  MEMBER                                             MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar