DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 18^th  day of March 2013

Present : Smt.Seena H, President

            : Smt. Preetha.G. Nair, Member

            : Smt. Bhanumathi.A.K, Member           Date of filing: 26/08/2011

(C.C.No.144/2011)

Ravindran,

S/o.Shunmughan,

5/11, Karadimalakundi, Puthan Veedu,

Keralassery, Palakkad – 678 641                       -       Complainant

(By Adv.O.P.Nandakumar) 

V/s

1.M/s.Force Motors Ltd.

  (A Firodia Enterprises),

  Rep.by its General Manager,

  M/s.Force Motors Ltd.,

  Mumbai-Pune Road,

  Pune – 411 035

(By Adv.E.Ramachandran)      

2.The Proprietor,

   M/s.Anugraha Automobiles,

  14/724, Coimbatore Road,

  Kalmandapam,

  Palakkad – 678 001                                       -        Opposite parties

O R D E R

By Smt.PREETHA G NAIR, MEMBER

The complainant is the registered owner of KL-09-U-3911 Minidor Autorickshaw, 2006 model manufactured by the 1^st opposite party and distributed by the 2^nd opposite party. The cost  of the vehicle was Rs.1,68,000/- on the road and purchased by the complainant on 23/9/06. The opposite parties had promised a mileage of 35km/litre for the vehicle. But the vehicle never crossed its half. The major defect noticed is heavy fuel consumption. On 21/7/07 and on several other occasions the complainant had approached the 2^nd opposite party with various defects in the engine of the vehicle, which they had not able to rectify the problems in spite of repeated removal of engine parts and accessories. Even during the warranty period the vehicle becomes constantly unserviceable resulting in huge financial loss and mental agony to the complainant. After several attempts to rectify the defects by removing and replacing almost all the vital and valuable parts of the engine by dismantling it, the 2^nd opposite party could not succeed. As a result the vehicle had been always with the 2^nd opposite party for the rectification of defects. But the 2^nd opposite party is not able to correct the defects of the vehicle so far. So legal notice was sent only on 21/06/11. 

Costs of each and every repair and work done on the vehicle and the spares replaced from the vehicle by the opposite parties were met by the complainant despite the offers made by the opposite parties. The complainant alleges that the opposite parties had canvassed him for the purchase of the vehicle and finance arranged at their instance through the State Bank of India. The complainant failed to repay the loan amount to the bank, as the autorickshaw failed on the road due to the defects, which were not rectified by the opposite parties. So far it is reliably known to the complainant that opposite parties had not made any further sales of the vehicle as the same is a failure on the road due to manufacturing defects. The act of opposite parties amounts to deficiency in service. Recovery proceedings are initiated by the bank. Hence the complainant prays an order directing the opposite parties to

1.    Take back the vehicle and return the price of the vehicle Rs.1,68,000/-, clearing the bank loan availed by the complainant

2.    Rectify the defects of the vehicle within a stipulated time and make the vehicle road worthy by attaining the mileage of 35km / litre with warranty for a further period  of one year and

3.    Cost of the proceedings.

1^st Opposite party filed version stating the following contentions. Complaint is not maintainable. The complaint has filed after more than 3 years from the purchase of the vehicle. The warranty period of the vehicle was for 180 days from the date of purchase.1^st opposite party stated that they are the manufacturer of the commercial vehicles engaged primarily in manufacture of three wheelers, four wheelers and tractors etc., Further stated that 2^nd opposite party was the authorized dealer of them. The dealers are independent entities  and they manage the sale and after sale services. So 1^st opposite party does not have privity of contract with the complainant. Further for several years the 2^nd opposite party has stopped working as dealership. Thereafter there is no relationship between them. The complainant has purchased the vehicle after obtaining loan facility. Hence, the complainant has filed this complaint to protect his inability to monthly installments of loan reimbursement.

The complainant had purchased the vehicle for its commercial purpose. Hence the complainant does not fall within the definition of consumer under Section 2(1)(d) of the Consumer Protection Act. It is true that Minidor vehicle bearing chassis No.T.15000448CO6 and engine number D 38000226 is manufactured by 1^st opposite party and purchased by the complainant from 2^nd opposite party on 23/09/2006. The relationship  between 1^st opposite party and 2^nd opposite party is on Principal to Principal basis. 2^nd opposite party is not an agent of 1^st opposite party. Hence 1^st opposite party cannot be held responsible for any acts and omissions on the part of 2^nd  opposite party. The model of the vehicle is approved by an independent testing institute / laboratory  approved by the Central Govt. So there was no manufacturing defects in the vehicle. The Minidor vehicles manufactured by 1^st opposite party are successfully sold throughout India for more than 18 years and those vehicles were plying successfully.

1^st opposite party is never assuring mileage as the mileage as well as fuel consumption depends on various factors such as maintenance, road conditions, load put on vehicles, oil and fuel quality and quantity, driving habits etc. 1^st opposite party is not aware of the transaction between the complainant and 2^nd opposite party. 1^st opposite party has provided services to the vehicle whenever the complainant has availed the same and he has used his vehicle regularly and extensively.  Further 1^st opposite party stated that the complainant has failed to avail 3^rd, 5^th and 6^th free services which are mandatory for proper maintenance of the vehicle. Therefore the alleged issues might have occurred due to the negligence of the complainant in availing all the mandatory services. The clause No.12 of the terms and conditions of warranty states that “The warranty claim will not be entertained unless all services up to date of the claim, have been performed on the vehicle by any one of our Authorized dealers”. Further it is also crystal clear from the services record of the vehicle maintained by the 1^st opposite party that no part of the vehicle was required to be replaced during the warranty period. Thus the vehicle does not have any manufacturing defect. The complainant has not communicated anything to 1^st opposite party from the date of purchase i.e. 23/9/2006 till 21/6/2011 means for almost a period of 4 years and 9 months. Moreover as per the    clause 2 of the  terms and conditions of warranty, warranty is limited for only repairing and replacement of the defective parts in genuine cases and not the entire vehicle.

Further the warranty period of 180 days from the date of purchase was expired on 22/3/2007. The alleged event of 21/6/2007 was 4 months after the expiry of warranty, hence the repairs if any were to be on chargeable basis. Therefore no deficiency in service on the part of 1^st opposite party. Hence 1^st opposite party prayed that dismiss the complaint with costs.

Notice served to 2^nd opposite party. But 2^nd opposite party was absent and set exparte.

Complainant and 1^st opposite party filed affidavit. Ext.A1 to A17 marked on the side of complainant. Commission report marked as Ext.C1. Complainant and one witness examined as PW1 and PW2. 1^st opposite party was not present for examination. Matter heard. 1^st opposite party filed argument notes.

Issues to be considered are

1.    Whether the complaint is maintainable ?

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

3.     If so, what is the relief and cost ?

Issue No.1  

Issue No.1 considered in favour of the complainant as per the order in I.A.82/12.

Issue No.2 & 3 

We perused relevant documents  on record. 1^st opposite party admitted that Minidor vehicle bearing chassis No.T 15000448CO6 and engine number D 38000226 is manufactured by them and purchased by the complainant from 2^nd opposite party on 23/9/06. Complainant stated that the major defect noticed is heavy fuel consumption. In Ext.C1 the Commissioner  noted that “the engine of the vehicle was found oil leaking through gaskets and breathers, this being the symptom of decompression weak engine due to blow by gases through piston rings as well as poor performance causing higher fuel consumptions. Further commissioner mentioned that the vehicle was not in a starting condition and no arrangements  were made by both parties at the place and time of inspection for starting the engine or conducting a road test of the vehicle. The 2^nd opposite party is the dealer of 1^st opposite party. But the 2^nd opposite party was set exparte and also  no version and affidavit filed. In Ext.A2 the complainant has sent the vehicle for 4^th service and the date of service was on 13/3/07. According to the complainant 2^nd opposite party closed the shop after the 4^th service. Thereafter he has not given any service to the vehicle. No contradictory evidence produced  by opposite parties.

Commissioner noted that the 1^st opposite party had stopped production of this kind of vehicles some years back and most of the spare parts are not easily available in the local market as the manufacturer is not supplying them as in the words of the dealers of M/s.Force  Motors  in Palakkad and Thrissur. No contradictory evidence produced by the opposite parties. According to the complainant the opposite parties had canvassed him for the purchase of the vehicle and finance arranged at their instance through the State Bank of India. According to 1^st opposite party the bank was not a party to the complaint. But the main allegation of the complainant was the manufacturing defect of the vehicle.

In Ext.A1 page 5 mentioned the hypothecation in favour of State Bank of India, Keralassery. Ext.A14 shows the bank sent the demand notice prior to  attachment of land. Ext.A7 to A12 shows the complainant had purchased items to repair the vehicle within one year from the date of purchase. No contradictory evidence produced by the opposite parties. The complainant stated that after several attempts to rectify the defects by removing and replacing almost all the vital and valuable parts of the engine the 2^nd opposite party could not succeed lost of each and every repair and work done on the vehicle and the spares replaced from the vehicle by opposite parties were met by the complainant despite the offers made them.

In the present case the opposite parties had not given proper service to the vehicle. It is revealed from Ext.C1 that the 1^st opposite party had stopped production of this kind of vehicles some years back. According to the complainant it also shows the defects of the vehicle. Further commissioner stated that the air cleaner of the vehicle is not fitted in a lower level, so as the water from the road can enter into the engine. PW1 deposed that service ചെയ്യാന്‍ പോയപ്പോള്‍ 2^nd opposite party സ്ഥാപനം പൂട്ടി  പോയിട്ടുണ്ടായിരുന്നു  5,6 service company ഇല്ലാത്തത് കൊണ്ട് service  ചെയ്തിട്ടില്ല.  The opposite parties had not produced evidence to show that service center was available at the period of 5^th and 6^th service.  PW2, employed with 2^nd opposite party deposed that the defects of the vehicle  noted in 2009. On 2009 PW2 has not working with 2^nd opposite party.

1^st opposite party had not present for cross examination. At the time of argument counsel of 1^st opposite party argued that they are ready to repair the vehicle. But the commissioner mentioned that the 1^st opposite party had stopped the production  of this kind of vehicle and spare parts are not available. It is also noted that a batch of cases is pending before this Forum alleging defects as to the same model of the vehicle. The opposite parties had failed to repair the defects of the vehicle within the warranty period. Moreover the expert commissioner noted the defects of the vehicle. The complainant purchased the vehicle  for an amount of Rs.1,68,000/- on the road on 23/9/2006. No documentary evidence produced by the complainant to show the price of the vehicle. But the opposite parties had not raised objection.  After 6 years 50% of the amount can be considered as depreciation. So the price of vehicle is considered as Rs.84,000/-.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result complaint partly allowed. We direct the opposite parties jointly and severally liable to pay the complainant an amount of Rs.84,000/- (Rupees Eighty four thousand only)  as the price of the vehicle and pay Rs.3,000/- (Rupees Three thousand only) as cost of the proceedings.

On receipt of the ordered amount complainant shall hand over the vehicle to the opposite parties. Order shall be complied within one month from the date of receipt of order,  failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 18^th day of March  2013.

            Sd/-

Seena H

President

                                                                                         Sd/-

Preetha G Nair

Member

    Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1  – Photocopy of RC book of vehicle No. KL09-U-3911 minidor autoriksha  owned by the complainant

Ext.A2  –Service coupon book of vehicle No. KL09-U-3911 minidor autoriksha  owned by the complainant

Ext.A3  – Photocopy of permit dated 10/10/2006 of vehicle bearing        

             No. KL09-U-3911

Ext.A4  –  Photocopy of driving licence issued to the complainant.    

Ext.A5  – Copy of legal notice dtd. 21/06/2011 sent to the opposite parties by

             the complainants advocates.  .

Ext.A6  –  Returned undelivered cover containing legal notice dtd. 21/06/2011

              sent to the 2nd opposite party.  

Ext.A7  –  Invoice No. 797 dtd. 14/06/2007 issued to the complainant by 2nd

              opposite party.

Ext.A8  – Bill No. 424 dtd. 14/06/2007 issued to the complainant by 2nd

             opposite party.

Ext.A9  –  Invoice No. 2858 dtd. 5/08/2007 issued to the complainant by 2nd

              opposite party.

Ext.A10  – Invoice No. 1186 dtd. 21/07/2007 issued to the complainant by 2nd

               opposite party   

Ext.A11  –  Bill No. 661 dtd. 21/07/2007 issued to the complainant by 2nd

                opposite party  

Ext.A12– Bill No. 298 dtd. 21/07/2007 issued to the complainant by 2nd

             opposite party  

Ext.A13  – Photocopy of demand notice dtd. 27/07/2011 issued to the

               complainant by the Dep. Tahsildar (RR), Palakkad.    

Ext.A14  – Photocopy of demand prior  to attatchment of land dtd. 27/07/2011

               issued to the complainant by the Dep. Tahsildar (RR), Palakkad.  

Ext.A15  – Govt. Order No. 65499/H1/2011/RD dtd. 26/11/2011 of Revenue

               Department.    

Ext.A16  – Owners Manual of Minidor vehicle. 

Ext.A17  –  Copy of order of Consumer Disputes Redressal Forum, Palakkad dtd.

                30/12/2010.   

Witness examined on the side of the complainant

PW1 – Ravidran

PW2 – Sabarish. R

Exhibits marked on the side of the opposite party

Nil

Commission Report

C1 – Appu.P.M. AMVI, RTO, Palakkad

Cost

Rs. 3,000/-  allowed as cost of the proceedings.