BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 16^th day of May 2015

Filed on : 07-02-2012

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.72/2012

Between

Binu P. Mathew, : Complainant

Parappattu house, (By Adv. Alexander Joseph,

Vettampara P.O., Prince Tower, Kombara,

Kothamangalam, Market Road,(North) Kochi-14)

Ernakulam-686 691.

And

1. M/s. Mahindra & Mahindra : Opposite parties

Ltd., rep. by its President, (O.P.1&2by Adv. Sunil C.G., 64/3147,

Registered Office, Kalabhavan Road, Cochin-18)

Gateway Building,

Appollo Bunder,

Mumbai-400 039)

2. The Zonal Manager,

M/s. Mahindra & Mahindra Ltd.,

34/1128, Balakrishna Menon road,

Edappally, Kochi-682 024.

3. M/s. T.V. Sundaram Iyengar (3^rd O.P. by Adv.V. Krishna Menon

& Sons, Kaloor, Kochi-682 017. HRS Complex, 1^st Floor,

Rep. by its Manager (sales) SRM Road, Kochi-682 018)

4. The Director,

Automobile Research

Association of India,

(ARAI) P.B. No. 832,

Pune – 411 004. Regd. Office,

Survey No. 102, Vetal Hill,

Off Paul Road, Kothrud,

Pune-411 004.

O R D E R

Cherian K. Kuriakose, President.

This is a complaint filed under Section 12 of the Consumer Protection Act.

The case of the complainant.

The complainant Shri. Binu P. Mathew is the registered owner of Mahindra Genio SC 2WD BSIII car, bearing Regn. No. KL-44-A-9396. The 1^st opposite party M/s. Mahindra & Mahindra Ltd. is the manufacturer of the vehicle. The 3^rd opposite party is the dealer of the 1^st and 2^nd opposite parties at Ernakulam doing sales and services of the vehicle. The 4^th opposite party M/s. Automobile Research Association of India (ARAI) is the agency authorized to certify the quality and standard of the vehicle manufactured by the 1^st and 2^nd opposite parties. The vehicle was delivered to the complainant on 17-09-2011. On the very day of the delivery of the vehicle that is on 17-09-2011 the vehicle had a brake down on the road just after the 60 kms of running on sending information the service engineer of the 3^rd opposite party dealer came and repaired the vehicle. It was informed to the complainant that the complaint was with regard to the gear system. Again after a week, the rear wheel bolt of the vehicle was broken and again the 3drd opposite party, on getting information came to the spot and got it repaired through the service engineer. Again on 13-10-2011 the vehicle broke down on the road due to the defect in the power steering system. The complainant had to take the vehicle to the service centre of the 3^rd opposite party and got the defect rectified. Again on the next day there was a problem with the wheel alignment and the complainant took the vehicle to the service centre and got it corrected. Shortly one tyre of the vehicle burst out and cracks were developed on two tyres. The damage caused to the tyres of the vehicle were due to the defective alignment system and balancing system of the vehicle. The break shoe assembly system of the vehicle was also defective and the service engineer of the 3^rd opposite party had disconnected, the hand break observing that the hand brake should have been the reason for the constant damage being caused to the brake alignment. On 13-12-2011 there was oil leakage from the housing of the vehicle and it was brought to the service station and it was kept there for repairs. Due to the continuous repairs caused to the vehicle, the complainant finds it impossible to maintain and use the vehicle confidentially. Therefore he sent an e-mail on 08-12-2011 to the customer care of the 1^st and 2^nd opposite parties. The complainant was directed to contact the customer care Manager at Kochi. On 13-12-2011 the complainant again had sent an e-mail to the customer care to get the very same reply . The vehicle sold to the complainant by the 1^st opposite party was not up to the standard and quality mentioned by the 1^st opposite party and the complainant therefore requested to the opposite party to replace the vehicle with a Mahindra Bolero pickup van. Dissatisfied with the bad response on the part of the opposite party the complainant had sent a legal notice dated 19-12-2011 to the opposite parties 1 to 3 which was received and acknowledged by them. As per reply notice dated 28-12-2011 the complainant was requested not to resort to any hasty legal action for want of any positive steps on the part of the opposite parties to redress the grievances of the complainant. The complainant had proceeded to file this Consumer Complaint on 07-02-2012. Seeking a direction to the opposite parties to take back the vehicle purchased by the complainant or to refund the amount paid by him or in the alternative for a direction to the opposite parties 1 to 3 to replace the vehicle with a Mahindra Bolero pick up van manufactured by the 1^st and 2^nd opposite parties. Costs for the proceedings and compensation is also sought for.

2. Notices were issued to all the opposite parties. Opposite parties 1 to 3 appeared and they filed their respective versions.

3. Version of Opposite parties 1 and 2 the manufacturer.

The vehicle purchased by the complainant was a commercial vehicle and it was used for commercial purpose and therefore the complainant is not a ‘consumer’ as defined under Section 2(i)(d) of the Consumer Protection Act, 1986. The transaction between the opposite parties 1 and 2 and opposite party No. 3 are on the principle to principle basis. The 3^rd opposite party places bulk orders for vehicles which were being supplied by the manufacturer. The opposite parties 1 and 2 are not aware of the ultimate buyer of the vehicle manufactured by them at the time of purchase. There was no direct transaction between the complainant and the manufacturer. Therefore there is no privity of contract between the complainant and the manufacturer opposite parties. The statement in the complaint that the complainant had purchased the vehicle with a view to eke-out his livelihood, was made only for the purpose of filing this case before this Forum and there is no merit in that statement. The complainant had commercially exploited the vehicle by covering 30,599 kilometers during a period of less than 3 months. The complainant had admitted that he purchased the vehicle on 17-09-2011 and the odometer of the vehicle as on 13-12-2011 was 30,599 KMS. There was no vehicle brakedown as alleged. The allegation that on 13-10-2011 the vehicle brokedown due to the failure of the power steering was incorrect. As on 13-10-2011 the vehicle had already covered 5883 KMS. The damages if any caused to the tyres were not due to the alignment system and balancing system. The break shoe assembly system of the vehicle was not defective. The allegation that the service engineer of the 3^rd opposite party had disconnected the hand break is also not with the knowledge of the opposite parties 1 and 2. The problem in the brake system as stated may occur due to poor driving skills and abuse of the vehicle. The allegation that there was oil leaking from the housing of the vehicle is not factually correct. The leak was not due to any manufacturing defect. The vehicle had already covered 30,599 kms as on 13-01-2011. There is no merit in the statement that the complainant had requested for the replacement of the vehicle to the opposite parties 1 and 2. The opposite parties are not liable to take back the vehicle and to give refund of the price of the vehicle or to pay any compensation. There was no manufacturing defect for the vehicle as alleged. The complainant is not entitled to get any compensation for if in the vehicle ideally in the garage of the 3^rd opposite party. The vehicle was launched after getting the required certification under Rule 126 of the Central Motor Vehicle Act. The vehicle was certified to be road worthy and is perfectly complying to the of the safety norms prescribed by the statutory authority. The warranty conditions specifically noted in the owner’s manual provided to the complainant. The conditions are applicable to both complainant as well as to the manufacturer. The complaint was filed suppressing the terms and conditions of the warranty. The complainant is not entitled to get any compensation as per the calculation made by him in the complaint. The complaint is filed with a malafide intention and therefore the complainant is not entitled to get any relief as prayed for.

4. The case of the 3^rd opposite party the dealer.

The factual statements made by the complainant in his complaint are meritless. The complainant had entrusted the vehicle to the 3rd opposite party on 13-12-2011 for carrying out certain repairs and the vehicle was ready for delivery to the complainant on 17-12-2011. However for reasons best known to the complainant the delivery of the vehicle was not taken. As the complainant has not taken delivery of the vehicle in spite of completion of the repair work, the vehicle was shifted to the workshop yard at Alangadu. The 3^rd opposite party is entitled to get garage rent at Rs. 150/-per day till the complainant takes delivery of the vehicle. The complainant had purchased the vehicle on his own volition after personally examining the same. The complainant is not a consumer within the meaning of “consumer” under Section 2 (1) (d) of the Consumer Protection Act. The complainant had effected the service of the vehicle at 5000 kms and 10,000kms. There was no defect. There was no manufacturing defect for the vehicle as alleged by him. There was no deficiency of service on the part of the 3^rd opposite party. The relief sought by the complainant are beyond the scope the jurisdiction of this Forum and the complaint has filed vexatious complaint without any merit. The complaint is therefore sought to be dismissed.

5. The 4^th opposite party Automobile Research Association of India did not appear to contest the matter.

6. The following issues are settled for consideration.

i. Whether the complainant is a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act?

ii. Did the complainant prove that there was inherent manufacturing defect on the vehicle?

iii. Did the complainant prove that there was deficiency of service on the part of the 3^rd opposite party?

iv.Reliefs and costs

7. The evidence in this case consisted of the documentary evidence from Exbts. A1 to A9 and oral evidence of the complainant on the side of the complainant and Exbts. B1 to B4 and oral evidence of DW1, on the side of the opposite parties. Exbt. X1 series service records were produced by the 3^rd opposite party on direction.

8. Issue No. i. The primary contention taken by the opposite parties 1 to 3 through their version was that the complainant was not a consumer within the meaning of section 2 (1) (d) of the Consumer Protection Act. It is true that there is a mentioning in the complaint that the vehicle was purchased by the complainant for commercial use. But it was added by the complainant that he was using the vehicle for eking out his livelihood. The question of using the vehicle for the livelihood of the complainant has to be proved by him since he is taking a exception on the regular definition stated in Section 2 (1) (d) of the Consumer Protection Act. Normally complaints pertaining to commercial activity are not entertainable by the Forum. The only exceptional case is that when the commercial usage of the article was being used for eking out his livelihood of the complainant. In this case the original complainant was not examined. The brother of the complainant was examined as PW1 to support the case of the complainant. During cross-examination PW1 had admitted that the vehicle was being used to transport toddy from Palakkadu to Ernakulam district. He was no aware as to which routes the vehicle was being plied. To a specific question with regard to the usage of the vehicle to the tune of 30,599 kms within 3 months, PW1 was pleading ignorance. The complainant did not produce any material to substantiate that it was the complainant who was using the vehicle for his commercial purposes to eke out his livelihood. PW1 has categorically admitted that he had not gone through the warranty at the time of sale purchase of the vehicle. The vehicle was being plied throughout Kerala in almost all districts of Kerala according to PW1. The complainant owns 9 acres of property of which 5 acres is rubber estate. On the evidence adduced by PW1 with regard to the question of usage of the vehicle for livelihood of the complainant is disappointing. The Consumer Protection Act was devised to rescue the unfortunate victims who have been suffering from deficiency of service and unfair trade practice on the part of the manufacturer, sellers, dealers etc. Helping persons who purchase articles or vehicles who are using it for commercial purposes are clearly exempted from the purview of Consumer Protection Act. Their remedy lies elsewhere and not before a Forum like this. We find, on the basis of the evidence adduced by the PW1 that the complainant had failed to establish himself that he was entitled to file a complaint before this Forum to get his grievances redressed through the machinery of this Forum. We find ourselves difficult to conceive the contention taken by the complainant in his complaint that he was a consumer. We therefore find the issue against the complainant.

9. Issue No. ii & iii. Having found issue No. 1 against the complainant we find that we need not delve deep into the evidence produced, not with standing the fact that the complainant did not prove the allegation with regard to the deficiency in service and unfair trade practice even on merit.

10 Issue No. iv. Having found issue numbers 1 to 3 against the complainant we find that the complainant is not entitled to get any relief as prayed for and the complaint deserves dismissal.

11.Accordingly we dismiss the complaint. However in the circumstances of this case, we refrain from awarding the costs of proceedings. Parties shall suffer respective costs.

Pronounced in the open Forum on this the16^th day of May 2015.

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant’s Exhibits:

Ext. A1 : Copy of certificate of registration

A2 : Copy of motor vehicle cover note

dt. 16-09-2011

A3 : Copy of bill

A4 : Copy of sale certificate

dt. 17-09-2011

A5 : Lawyer notice dt. 19-12-2011

A6 : Copy of reply notice dt. 28-12-2011

A7 : Copy of retail invoice dt. 16/09/2011

A8 : Quotation

A9 :

Opposite party’s Exhibits:

Ext. B1 : Copy of letter dated 10-02-2014

B2 : Copy of Certificate dt. 22-12-2010

B3 : Copy of letter dt. 02-02-2011

B4 : Brochure

X1 series : retail invoices

Depositions:

PW1 : George Mathew

DW1 : Sriraj T.C.