CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD

Dated this the  30^th day of January 2015

PRESENT :  SMT.  SHINY. P.R, PRESIDENT

               :  SMT. SUMA. K.P, MEMBER                      Date  of filing : 11/6/2012

CC /102/2012

Sulaiman, S/o.Paintu Rowther,

Kundupadam, KTC,

Mukronikalam, Kanjikode (P.O),                                 :        Complainant

Palakkad Taluk, Palakkad District.

(By Adv.John John )

                                                          Vs

1. M/s.SML Motors,

    N.H 47, Coimbatore road,

    Marutharoad P.O, Palakkad – 678 007,

    Rep. by its Manager

    (By Adv.Mariam A Rahman)

2.  M/s.Piaggio Vehicles Private Limited,

     101 B/102, ‘PHOENIX’,

     Bund Garden Road, Opp. Residency Club,              :        Opposite parties

     Pune- 411001, India

     Rep. by its Manager

     (By Adv.Mariam A Rahman)

O R D E R

By Smt. Suma. K.P, Member,

Brief case of the complaint :-

     The complainant purchased a PIAGGIO–APE Mini motor vehicle on 23/09/2011 from the 1^st opposite  party who was the dealer with Engine No.GP11F 9129032 and Chassis No.VBNG 231125 on payment of the price partly by cash and partly by finance from M/s.SML Finance. The vehicle was registered as KL9-AB-4052 with the Motor Vehicle Department. The complainant alleges that the vehicle was having break failure from the first day of its usage and the matter was brought to the notice of 1^st opposite party immediately.  Attempts were made by the service centre of the 1^st opposite party, to correct the problem of brake failure. Inspite of several attempts of repair, the brake failure continued and hence the vehicle could not be operated on the road.  Complainant always followed the instructions of the 1^st opposite party and presented the vehicle for repair as and when instructed.  Though the service centre made efforts, no progress could be made in the matter.  The said vehicle is still not having satisfactory brake power and cannot be operated on the road due to brake failure.  Hence the complainant had kept the vehicle idle from the date of its purchase.  The complainant availed finance from M/s.SML Finance to purchase the said vehicle so as to earn his livelihood, and was under the impression that he can repay the amount from the earnings originated from the said vehicle by using the same as a goods taxi.  Due to the above defects the complainant is constrained to avail private loans to remit the monthly installments of the vehicle inorder to avoid vehicle being seized by the financier.  The complainant requested the opposite parties to take back the vehicle and pay back the price of the vehicle obtained by the 1^st opposite party or to provide a brand new PIAGGIO APE three wheeler passenger vehicle.  The opposite parties did not take any steps to discharge the above said liability.  Hence the complainant had approached before the Forum seeking an order to direct the opposite parties to take back the above said vehicle and pay back the price of the vehicle and also to grant an amount of Rs.50,000/- as compensation for the mental agony suffered along with cost.

Notice was issued to the opposite parties for appearance. Opposite parties entered appearance and filed their version denying the allegations alleged in the complaint.   Opposite parties admits that the complainant had purchased the above said vehicle on 23/9/2011.  The allegation that there was brake failure at the time of delivery of the vehicle is vehemently denied by the opposite parties. The allegation in the complaint that the complainant had delivered the vehicle to the 1^st opposite party’s service centre to rectify the brake failure defect was also denied. The further allegation that the vehicle is having manufacturing defect which cannot be rectified is also denied by them. The opposite parties contented that the complainant has not availed any free services from the 1^st opposite party.  The opposite parties repeatedly requested through phone to the complainant to avail the free service which he was legally entitled, but the complainant did not turned up.  The complainant has not made any request to the 1^st opposite party for repairing the vehicle or had gone to any authorized agent of the opposite parties for repairing the vehicle.  Opposite parties reiterate that the vehicle manufactured by them is of high quality and is according to the standards of Indian vehicle manufacturing industry. 

In order to prove the case of the complainant, an expert commissioner was taken from the part of the complainant.  The Commissioner filed his final report on 29/1/2013.  Both parties filed objections to the commission report.  Complainant filed chief affidavit to substantiate the contentions in the complaint.  Opposite parties filed petition seeking permission to cross examine the complainant.  Complainant as well as a witness from complainant’s  side was examined as PW1 & 2.  Complainant also filed application to examine the expert commissioner and he was examined as CW1.  Opposite parties also filed proof affidavit along with documents.  Ext.A1-A5 was marked from the part of the complainant and Ext.B1 was marked from the part of the opposite parties. The  Evidence was closed and matter was heard.  

The following issues are to be considered.

          1.   Whether there is any deficiency in service from the part of opposite

                parties?

          2.   If so, what is the reliefs and cost? 

 ISSUES 1 & 2

          Complainant was examined as PW1 who was an illiterate age old man.  His son-in-law is acting as the driver of the said vehicle.  We have also perused report filed by expert commissioner.  As per the report filed by the Commissioner he had clearly  stated that, the vehicle was not in a condition so that can be operated in a speed of more than 30 km/hr, as breaking efficiency is very low, and that no leakage in the system as well as no parts are having any wear and tear or any slackness in the adjustments and that no dust was found in the break drums and the members on the carrier plate.  Expert Commissioner has also stated that eventhough there is no defects in any of the spare parts, the breaking system is not working efficiently which shows that the vehicle is having manufacturing defects. 

          In point No.1 in Page no.3 of Ext.C1 Report, the Expert Commissioner had stated that the master cylinder presently fitted in the vehicle is not sufficient to create a break pressure so as to  stop the vehicle and hence this is a manufacturing defect.  The Commissioner has also stated as point no.2 that the vehicle in question cannot be operated in public places with or without load using the present breaking system.  In point no.3 the commissioner stated that defects can be rectified by replacing the existing master cylinder, wheel cylinder etc. The above statements was explained by the Expert Commissioner during cross examination.  In page no.2 of the deposition of CW1, he explained the statement in point no.3 that inorder to cure the defect the present master cylinder and the wheel cylinder has to be replaced with a modified one.  During re- examination the Commissioner has stated that our law doesn’t permits to modify the said parts. 

          The complainant had filed an application to cross examine the opposite parties.  Eventhough several reasonable opportunities were given to the opposite parties, they evaded from appearing before the Forum. So an adverse inference can be drawn against the opposite parties.

          The contention of the opposite parties that the complainant failed to avail the free services for his vehicle cannot be considered in the present case because the defect of the vehicle is manufacturing defects as pointed out by the Expert Commissioner and it happened to be caused at the time of manufacturing the vehicle.  The complainant has also submitted that he could not repay the monthly installments towards the loan and huge amount and its interest is in due. On perusing the documents and evidence adduced in the present case.  It is clear that the vehicle of the complainant is having manufacturing defects and the same cannot be rectified.  Hence we are of the view that there is deficiency in service and unfair trade practice on the part of the opposite parties.  In the said circumstances the complaint is allowed and we direct the  opposite parties to take back the vehicle in issue and pay back the price of the vehicle obtained by the 1^st opposite party from the complainant and to pay an amount of Rs.10,000/- (Rupees Ten  thousand only) to the complainant as compensation along with cost of Rs.5,000/- (Rupees Five  thousand only)  within one month from the date of receipt of this order failing which the complainant is entitled to get 6 % interest for the whole amount from the date of order till realization. 

Pronounced in the open court on this the  30^th day of January 2015

                                                                   Sd/-

                                                                   Smt. Shiny. P.R

                                                                     President                                                                                                        Sd/-                  

                                                                   Smt. Suma. K.P

                                                                         Member

                                                A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1- Copy of lawyer notice dtd.20/04/2012 Adv.John John to 1^st opposite party.

Ext.A2- Postal Receipt dtd.23/04/2012

Ext.A3- Postal ack.card dtd.24/04/2012

Ext.A4- Reply notice dtd.08/05/2012

Ext.A5-Operation Maintenance and Warranty manual of PIAGGIO APE MINI

Exhibits marked on the side of opposite parties

Ext.B1-Service Book Register

C1-Commission report filed by Sri.Appu P.M

C1(a)-Correction of Commission Report

Witness marked on the side of complainant

PW1   - Sulaiman.P

PW2- Jaffer Ali

CW1-Appu.P.M

Witness examined on the side of opposite parties

Nil

Cost Allowed

Rs.5,000/- as cost.