Karnataka

Kolar

CC/13/2014

C.N. Venkateshappa, - Complainant(s)

Versus

Mr. Albert, & Ors. - Opp.Party(s)

K.Munivenkatappa

23 Jun 2015

ORDER

Date of Filing: 06/03/2014

Date of Order: 23/06/2015

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 23^RD DAY OF JUNE 2015

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB              ……..    MEMBER

CONSUMER COMPLAINT NO 13 OF 2014

C.N. Venkateshappa,

S/o.E.Narayanappa,

Chatrakodihalli,

Beglihosahalli Post,

Kolar Taluk.

 

(Rep. by Sriyuth. K.Munivenkatappa, Advocate)       ….  Complainant.

 

- V/s -

1) Mrs. Albert,

Authorized Dealer, (Mahindra Two

Wheeler) FERRO MIOTORS,

NH-75, Bangalore Chennai Road,

Kolar High Way.

(Notice served – remained exparte)

 

2) Mahendra Two Wheeler Limited,

Pune Office D-1 Block, Plot No.

18/2 (part), M.I.D.C Chickchwad,

Pune-411019 (INDIA).

(Rep. by Sriyuth. Harish.H.V. & Hari Prasad B.U, Advocate) 

                                                                  …. Opposite Parties.

-: ORDER:-

BY SRI N.B. KULKARNI, B.Sc., LLB,(Spl.)    , PRESIDENT

01.   The complainant being then in-person has submitted this complaint which is taken read as Under Section 12 of the Consumer Protection Act 1986, seeking relief of vehicle value of Rs.51,600/-, extra fitting charges of Rs.2,000/-, towards consumption of petrol Rs.9,600/- and Rs.22,500/- frequenting expenses to the show room of the Ops for the duration of three months, and hence total sum of Rs.85,700/- and taking back the two wheeler Mahindra DURO DZ-125 CC or in the alternative replacement of the said vehicle.

 

02.   The facts in brief:-

It is contention of the complainant that, OP-1 is the authorized dealer of “Mahindra two wheeler” having the office located at NH-75, Bangalore Chennai Road, Kolar High Way, Kolar, whereas OP-2 is the manufacturer.  And that on confirming that, Mahindra DURO DZ-125 CC being the two wheeler would give mileage of 59 kilometers per liter petrol, on 01.11.2013 he purchased the same bearing registration No. KA-07-R-2651 by paying sum of Rs.53,600/- to the OP-1.

(a)    Further it is contended that, on filling the tank of the said two wheeler to the full when checked the mileage it gave only 25 kilometers per liter petrol.  And that he approached the show-room (OP-1) he was told to leave the vehicle for servicing and after servicing the promised mileage would be possible and that he complied.  And that again when the said vehicle was checked for the promised mileage again the mileage given was only 25 kilometers per liter petrol.

(b)    Further he has contended that again he took the vehicle to the OP-1 for rectification of the said defect.  Even then the vehicle did not give the promised mileage.  And that the OP-1 had taken duration of one month for service of checking.  And that in spite of this the mileage given was only 25 kilometers per liter petrol.  And that he again went to OP-1 on 15.02.2014 and tried to contact on mobile phone Mr. Albert the dealer who did not receive the phone call.  And that even in the police station his complaint was not received.  And that as his frequenting to the OP-1 was made with failure on 19.02.2014 he caused notice through his counsel.  And that as the notice remained unheeded he was constrained to come up with this complaint on hand.  Along with the complaint, the complainant has submitted copies of the following documents:-

(1)    Copy of the Ration Card.

(2)    Office copy of the notice dated: 19.02.2014.

(3)    Postal acknowledgement at the instance of the OP-1.

(4)    Broacher issued by the Ops

(5)    Receipt issued by the Transport Department.

(6)    Receipt dated: 21.11.2013 issued by OP-1,

(7)    Owner’s Manual issued by Ops,

(8)    With Xerox copies of various receipts issued by the Petrol Bunks.

(9)    Delivery Note dated: 01.11.2013 in respect of the said vehicle bearing registration No. KA-07-R-2651,

(10)  Copy of the Insurance Policy.

 

(c)    At subsequent stage the said learned counsel for the complainant has put his appearance on 30.05.2014.

03.   On submission of the complaint by the complainant on 06.03.2014 in-person the case on hand came to be registered and notices came to be issued to the Ops.  On 19.04.2014 though the notice came to be served to both the parties as the OP-1 remained absent subsequently on 25.04.2014 the learned predecessor passed an order placing the OP-1 exparte.

(a)    Whereas the OP-2 on 25.05.2014 engaged the said learned counsel on his behalf.  On 16.05.2014 written version came to be submitted on behalf of the OP-2.

(b)    Resisting claim of the complainant it is contended that complainant has been guilty of suppression of material facts and that there could be no cause of action against it.  And that the relationship between it and the OP-1 is on principal to principal basis.  And that it could be a fact that on 01.11.2013 the complainant did purchase the said two wheeler by paying Rs.53,600/- to the OP-1.  However it is denied that there was assurance of 59 kilometer mileage per liter of petrol.  And that as the complainant has been running the said vehicle it cannot be held that there could be any defects. 

(c)    Further it is specifically contended in Para-3 and reproduction of the relevant portion reads hereunder:-

“The Mileage is not defined or promised as alleged by the complainant.  It is submitted that there is nothing on record to show/ prove that the complainant is driving vehicle without abusing and that he is riding vehicle by accelerating it while breaking leads to low mileage.  Further the complainant might have filled with adulterated fuel and of not proper usage.  Further it is not established by an affidavit or otherwise that proper and permitted unladden weight was put on the vehicle, during that period and has maintained the battery, put correct pressure on tyres and that she has filled fuel in a properly maintained petrol Bunk.  The said possibilities are not ruled out.  Hence the complainant has not made out any case there is no standard mileage fixed by manufacturer so as to test the same.”

(d)    Further it is contended that it was not within its knowledge about contended issuance of notice dated: 19.02.2014 to the OP-1 and it is specifically contended that it did not receive any such notice.  And that as the present complaint is only to harass and as it is not a proper and necessary party the complaint against it deserves dismissal by awarding exemplary costs.

04.   On 06.06.2014 affidavit evidence of the complainant has been submitted.  And on this day with Memo following two documents came to be submitted:-

(1) Copy of application dated: 25.04.2014 addressed to the OP-1.

(2) Receipt dated: 23.05.2014 (old 01.11.2013) as issued by the OP-1.

(a)    On 29.11.2014 the learned counsel appearing for the complainant with Memo submitted following three documents:-

(1) copy of insurance policy, with effect from 02.12.2013 to 01.12.2014.

(2) Copy of the letter dated: 12.01.2014 addressed by Head Operations and Claims of the said insurance company to the present complainant.

(3) Receipt dated: 01.11.2013 for Rs.51,600/- as issued by the OP-1.

(4) Postal acknowledgement as issued by the OP-1

(5) Receipt dated: 09.12.2013 issued by Transport Department in a sum of Rs.5,265/- in favour of the complainant.

(6) Broacher as issued by the Ops.

(7) Office copy of the notice dated: 19.02.2014.

 

(b)    The Learned Counsel appearing for the complainant on 15.06.2015 with Memo submitted as many as 37 receipts issued by various Petrol Bunks and Owner’s Manual issued by the Ops.

 

(c)    At the instance of the OP-2 on 27.06.2014 Sri.Kiran Mahyavanshi has submitted his affidavit evidence.

 

(d)    It is also worth to note at this juncture that Sri.K.V. Chandra Shekar, Proprietor of M/s.HI-TECH GARAGE, Specialist in Maruthi, Tata, Mahindra, Enfield, residing at 5^th Cross, Jayanagar, Tekal Main Road, Kolar, was appointed as a Commissioner to report regarding the defects in the said vehicle.  His report dated: 24.12.2014 is on record.  Both in hand-written and typed version.  Both the parties have put in their written objections to this report.  It is also worth to note at this juncture that on 22.05.2015 this Commissioner has put in his affidavit evidence.

05.   On 11.07.2014 the learned counsel appearing for OP-2 has submitted the written arguments, memo with Xerox copies of following four citations:-

(1)      III (2009) CPJ 20 (NC)

(2)      III (2009) CPJ 22 (NC)

(3)      Order dated: 13.09.2013 as passed by the IInd Additional District Consumer Disputes Redressal Forum, Sheshadripuram, Bangalore-20, in C.C.No.1118/2012.

(4)      Order Dated: 02.02.2013 in C.C.No.2296/2011 as passed by the IInd Additional District Consumer Disputes Redressal Forum, Sheshadripuram, Bangalore-20.

 

06.   On 22.05.2015 the learned counsel appearing for the complainant has submitted written arguments.  And on 15.06.2015 the said learned counsel appearing for the complainant with Memo has submitted Xerox copies of following citations:-

(1)    IV(2014) CPJ 517 (NC)

(2)    II (2013) CPJ 394 (NC)

(3)    IV(2012) CPJ 586 (NC)

(4)    IV(2014) CPJ 714 (NC)

(5)    II(2013) CPJ 14 (NC)

On 22.06.2015 as the learned counsel appearing for the complainant was present, heard oral arguments submitted by him only, for, the learned counsel appearing for the OP-2 and the OP-2 had remained absent. 

 

07.   Therefore the points that do arise for our consideration in this case are:-

1. Whether the said two wheeler Mahindra DURO DZ-125 CC bearing registration No. KA-07-R-2651 as sold by OP-1 to the complainant on 01.11.2013 for the said consideration of Rs.53,600/- was inherently defective?

2. If so, whether OP-2 could also be accountable along with the OP-1?

3. To what relief the complainant is entitled to?

 

08.   Findings of this District Forum on the above stated points for the following reasons are:-

POINT No.1:    In the Affirmative

 

POINT No.2:    In the Affirmative

POINT No.3:    The complainant is held entitled to relief of recovery of sum of Rs.75,000/- together with interest @ 9% pa from 06.03.2014 being the date of the complaint till realization, for being recovered from the OP Nos.1 & 2 jointly and severally, on condition that, he should hand over the said two wheeler bearing registration No. KA-07-R-2651 to the OP-1 within 30 days from the date of receipt of copy of this order.

POINT No.4:            As per final order.

 

REASONS

POINT NO.s. 1 TO 4:-

09.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a) As the OP-1 has been placed exparte as for as him is concerned, the averments made in the complaint coupled with said voluminous oral as well as documentary evidence would prevail.

(b)    The said broacher issued by the OP-2 handed over to the complainant through the OP-1 would reveal that this particular vehicle would give mileage of 59 kilometers per liter of petrol.  Naturally the complainant being very much moved by the promise went ahead in purchasing the same on the said day.  Unfortunately the vehicle did not give the mileage, for, the mileage given was only 25 kilometers per liter of petrol.

(c)    Though both the parties have preferred objections to the report of the Commissioner appointed by this Forum the main ingredients of this report with regard to material defects reveled in the said vehicle would emerge as indisputable aspects.  At this juncture it is worth to note that, the OP-2 has contended in the objection through the learned counsel that in the absence of Ops the said report came in to being checking and this is worthless contention in as much as the said commissioner appointed by the District Forum was a qualified person and nothing prevented the OP-2 to remain present at the time of inspection.  And the complainant has raised objections by contending that the quantum in terms of money with regard to the defects noticed are not mentioned.  This is also worthless objection, for, the main aspect is to see whether the vehicle in question is inherently defective of its mechanism or not.  And that same commissioner with full knowledge having inspected the vehicle has given experience merited opinion.

(d)    The defects noticed are as follows:-

(1) The vehicle gives an average mileage below 25 KMPL.

(2) The kicker proved to be defective and not working.

(3) Proves to be poor and weak compression.

(4) The V-drive auto transmission proves to be in bad condition and defective

(5) The engine gets two hot for a shorter distance.

(6) The carborator not properly caliberated.

(7) The poor compression in the head and valve assembly.

(8) The key is duplicate and with a single key.

(9) Too Noisy engine and vibration.

(10) Defective seat lock.

(11) Broken seat ring is noticed.

 

(e)    Therefore it is evident that because of the inherent defects in the said vehicle the same resulted in giving poor mileage.

(f)     Since the vehicle is defective and it was the OP-1 who sold it and as it was OP-2 who manufactured it now we proceed to consider the aspect of fastening of the liability.

 

(g)    Coming to the OP-2, in a written version Para-E(1) it has been pleaded that it might be that the complainant on 01.11.2013 by paying said consideration of Rs.53,600/- to the OP-1 did purchase the said two wheeler.  Hence the factum of purchasing of this two wheeler on the part of the complainant from the OP-1 the dealer for which OP-2 was a manufacturer emerge as indisputable aspect.

(h)    At this juncture it is worth to note that, the OP-2 by contending that, the relationship between it and the OP-1 is on principal to principal basis, as trying to avoiding the liability.  For this end it has placed reliance on principals enhanced III (2009) CPJ 20 (NC), III (2009) CPJ 22 (NC), and said orders of the said District Forum.  As against this the learned counsel appearing for the complainant has placed reliance on IV (2014) CPJ 517 (NC), II (2013) CPJ 394 (NC), IV (2012) CPJ 586 (NC), IV (2014) CPJ 714 (NC), and II (2013) CPJ 14 (NC).

(i)     The principals enhanciated in the said citations as relied by the Learned counsel appearing for the complainant would indicate that in given circumstances like the facts involved in the case on hand the manufacturer and the dealer are bound to be held responsible jointly and severally.  Therefore the principals enhanciated in the citations as relied by the learned counsel appearing for the OP-2 do not apply for the case on hand.  Therefore OP Nos.1 & 2 are bound to be held jointly and severally liable.

 

10.   Therefore now we proceed to assess the quantum of relief to be granted.

(a)    It is a fact that on 01.11.2013 the complainant by paying sum of Rs.53,600/- did purchase the said vehicle.  As because of inherently defective condition this vehicle has become totally useless.  The complainant cannot be blamed for it.  Therefore both the Ops are accountable.

(b)    The complainant has claimed sum of Rs.9,600/- towards petrol charges which cannot be granted, for, by spending the contended amount he has utilized the petrol by running the vehicle.  The complainant has claimed sum of Rs.22,500/- towards frequenting charges for which there are no satisfactory documentary evidence.  However it is indisputable aspect that because of the said defective vehicle the complainant has suffered loss besides suffering mentally also.  Therefore we quantify the compensation in a sum of Rs.22,000/- and we round-of the said price consideration of Rs.53,600/- to Rs.53,000/- thus this complainant is entitled to total compensation of Rs.75,000/- together with interest @ 9% pa from 06.03.2014 being the date of the complaint till realization have to be recovered from OP Nos.1 & 2 jointly and severally on a condition that within 30 days from the receipt of the copy of this order he shall hand-over the said vehicle to the OP-1 in the existing condition.

 

11.   We proceed to pass the following:-

ORDER

(01)  For foregoing reasons this complaint stands allowed with costs of Rs.2,500/-.

(02) The complainant is entitled to total compensation of Rs.75,000/- together with interest @ 9% pa from 06.03.2014 being the date of the complaint till realization have to be recovered from OP Nos.1 & 2 jointly and severally on a condition that within 30 days from the receipt of the copy of this order he shall hand-over the said vehicle to the OP-1 in the existing condition.

(03)  Send a copy of this order to both parties free of costs.

 

 

MEMBER                                                 PRESIDENT