SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order directing opposite parties to take back the vehicle in dispute and to provide a vehicle manufactured in the year 2018 or in the alternative to pay an amount of Rs.1,99,682/- with interest and to pay cost of the proceedings of the complaint.
The facts in brief of the case are that the complainant approached OP No.2 and made a booking of LMP 3 wheel vehicle APE CITY Passenger. OP NO.2 agreed to provide the said vehicle to the complainant, as per quotation Performa invoice NO.722 dated 04/04/2018. The vehicle was delivered to the complainant on 11/04/2018. The total cost of vehicle was delivered to the Rs.1,60,799/-. Insurance tax, registration tax, registration C.F, cess is Rs.6,000/- fittings and accessories is Rs.20,000/- fare meter is Rs.3,000/-. The grand total of the vehicle is Rs.1,99,682/-. It is submitted that after receiving the copy of the RC, complainant perused the year and the month of manufacturing of the vehicle. Then it was revealed that the vehicle was manufactured by the OP No.1 in July 2017. It is also submitted that OP No.2 provided a vehicle to the complainant which was manufactured nearly one year back by OP No.2 representing the same was newly made vehicle. Even before the purchase of the said vehicle by the complainant, OP No.2 provided and supplied the same type of vehicle to so many persons who are residing in the locality of the complainant which was manufactured in the year 2018. The complainant reasonably suspects that the OP No.2 supplied the vehicle which was kept by the OP No.2 for display and test drive. It is submitted that the act of the OPs are none other than an unfair trade practice. The complainant send lawyer’s notice to the OP on 02/06/2018. The OP received the same on 02/06/2018 date. The OP neither paid any amount nor taken any steps for the redressal of the complainant. Hence this complaint.
OP No.1 filed version. It is pleaded that the complainant had purchased the vehicle for commercial purposes and not for his livelihood and hence he is not a “consumer” as defined under section 2(d) of the Consumer Protection Act. There is no privity of contract between the complainant and this OP. The complainant has not availed any services or purchased any goods for consideration from this OP. The 1st OP, M/s Piaggio Vehicles Pvt. having its Registered office at Pune, is engaged in the business of manufacture and marketing of vehicles, especially 3 and 4 wheelers. The 2nd OP is an authorized Dealer cum service centre of third OP at Kannur. The brand new vehicles’ manufactured by the 1st OP is sold for consideration to the 2nd OP, who in turn sells it to its customers. The relationship between the 1st OP and the 2nd OP is on a principal to principal basis. However there is no contractual/ consumer relationship between the complainant and this OP. The complainant had approached the 2nd OP’s show Room on 04/04/2018 for purchase of an Ape City compact Diesel 3 wheeler (passenger Auto-Rickshaw). The complainant had inspected/test driven several vehicles than available and had decided to buy the subject vehicle which was at his request earmarked for sale to him. As per the information received from the 2nd OP, it is understood that the 2nd OP’s sales representative and team leader, Mr. Vinod informed the complainant that the vehicle he selected to buy is of the manufacturing year 2017. This OP had sold a brand-new vehicle to the 2nd OP. The year of manufacture etc. are borne out from the records. It is submitted that the year of manufacture was informed to him by the 2nd OP when the vehicle was selected for purchase by the complainant. The representatives of the 2nd OP never represented that the vehicle is manufactured in 2018, instead clarified that it is 2017 model. The vehicle delivered was a brand new one. But the allegation that the vehicle had run for 500Kms before delivery is denied. There is no manufacturing defect or other defects in the vehicle or deficiency in service on the part of this OP which allegedly caused any loss to the complainant. This OP is not liable to replace the vehicle nor is the complainant entitled to any such relief or refund of any alleged amounts from this OP. Hence prayed for the dismissal of complaint against OP No.1.
OP No.2 filed version. It is admitted that it is admitted that the complainant has purchased Ape three wheel vehicle Ape city passenger manufactured by OP No.1 from this OP but he has intended to start a self employment is not correct and is hereby denied by the OP. It is true that the vehicle was delivered on 11/04/2018 and the total cost of the vehicle is Rs.1,60,232/-. The complainant has not done any fitting and accessory cost from the 2nd OP and the payment this OP received from the complainant are Rs.1,50,000/- by NEFT on 10/04/2018 from Kerala Gramin Bank, Chemberi and an amount of Rs.10,000/- cash paid by the complainant vide receipt No.142 dated 12/04/2018. This OP has refunded an amount of Rs.3217/- to the complainant by cheque No.910764 dated 04/05/2018 and hence the total amount received by this OP from the complainant towards the sale of the above vehicle is Rs.1,76,783/-. The complainant did not buy or avail of any extra fittings and accessories from the 2nd OP. The payments received by this OP towards the sale of the above vehicle are as follows.1)Rs.1,50,000/- from Kerala Gramin Bank Chemberi Branch by NEFT on 10/014/2018. 2) Rs.30,000/- cash receive from complainant as per receipt No.142 dated 12/04/2018. It is not correct to say that the complainant came to know that the vehicle purchased by the complainant was manufactured only in the month of July 2017. The complainant was informed regarding the availability of the vehicle for delivery are the vehicles manufactured in July 2017. The complainant has booked the vehicle on 04/04/2018 and has informed this OP that he want immediate delivery of the vehicle since he is purchasing the vehicle to earn his livelihood. At the time when the complainant approached this OP to book the vehicle he was informed that vehicles available with them for delivery are those vehicles manufactured in the year 2017 and if he wants the vehicle manufactured in the current year he has to book for the vehicle after remitting an amount of Rs.5,000/- and for which the delivery of the vehicle will be only after a period of 3 to 6 months when this OP gets the current loan of vehicles and delivery of vehicles to the company from the 1st OP. The complainant was well informed regarding the year of manufacture of the vehicle even at the time of the invoice No.722 dated 04/04/2018 and tax invoice (B2C) dated 19/04/2018. The allegation that this OP has suppressed the year of manufacture of the vehicle and the allegation that the complainant came to know regarding the year of manufacture of the vehicle only after receiving the registration certificate of the vehicle is not correct and is hereby denied by this OP. The complainant has never approached or requested to provide newly made vehicle immediately or at any time after taking delivery of the vehicle except as per the lawyer notice issued to this OP. After receiving the registered lawyer notice this OPs staff has contacted the complainant and after taking to him he has agreed that he will not give any complaint because he has purchase the vehicle with the full knowledge that it was manufactured in the year 2017. The complainant should have given back the vehicle immediately after taking delivery and when he came to know that the vehicle was manufactured in the year 2017. The complainant is even now using the above vehicle without any complaint and earning his livelihood. The allegation that the vehicle was showing a meter reading of 500Km at the time of delivery is not correct. The vehicle may run for a few kilometers for the purpose of trial, testing and because of the vehicle being taken for registration by driving it and also for test ride the vehicle for pre-delivery inspection. Further submits that it is not possible for this OP to deliver vehicle to respective customers on the basis of date or month of their booking. The date manufacture is not relevant and it is the date of registration of the vehicle which will compute the model of the vehicle because the vehicles cannot be sold immediately after manufacturing because the vehicle comes to the hand of the customer only through the dealer and which process will take some time because it has to under the process of securing and other test of the vehicle and then transported to the dealer for sale. The vehicle manufactured by the 1st OP will reach the dealer onyx after a delay of more than 6 months form the manufacturing month and year. It is also not correct to say that even before the purchase of the above vehicle this OP has provided and supplied the same type of vehicle to so many persons which was manufactured in the year 2018. OP2 submitted that there is unfair trade practice on the part of this OP and there is no deficiency in service, defect in service, dereliction in duty and any unfair trade practice on the part of this OP. Hence complaint has to be dismissed.
Complainant filed his chief-affidavit. He proved documents Ext.A1 to A4. On the other hand, on behalf of OP No.2, the sales executive of OP No.2 Mr. Renjith filed the affidavit. After the that learned counsel of OPs made oral argument.
The allegation of the complainant is that OPs have sold the LMP3 Wheel vehicle APE city passenger 2017 model manufactured in 2017 July by representing the same to be of 2018 model and this fact had come to the notice of the complainant only on getting the copy of the RC on 13/04/2018. It is also alleged that even before the purchase of the said vehicle by the complainant, the OP NO.2 provided and supplied the same type of vehicle to so many persons who are residing on the locality of the complainant which was manufactured in the year 2018.
On the other hand the submission of the learned counsel for the OPs are that the complainant had purchased the APE of 2017 model in 2018 after getting information from the salesmen of OPNo.2 that the vehicle was of 2017 model. Since complainant want immediate delivery of the vehicle, to earn his livelihood, he has selected 2017 model because, 2018 model vehicle will be available with OP 2 only after a period of 3 to 6 months from the date of booking made by complainant. OP No.2 further contended that the complainant has never approached or requested to provide vehicle of 2018 model at any point of time after taking the delivery of the vehicle. Further submitted that after receiving lawyer notice the OPs staff has contacted complainant and after taking to him he has agreed that he will not give any complaint because he has purchased the vehicle with the full knowledge that it was manufactured in the year 2017. Hence prayed that this complaint be dismissed.
It is admitted between the parties that the complainant had purchased APE city passenger, manufactured by OP NO.1, from the dealer OP NO.2 on 11/04/2018, the value of the vehicle was Rs.1,60799/-. It is also not denying the fact that the OP NO.2 had issued invoice dated 04/04/2018 (Ext.A1). It is further admitted that the vehicle was manufactured in the year 2017 July.
After examining the available document on the file, it is clearly proved that the APE of 2017 model was sold by OP No.1 to the complainant on 11/04/2018 and the year of manufacture in the RC document was mentioned as 2017.
Now the question is whether the complainant was aware on the date of purchase that the car was manufactured in the year 2017. For proving the said fact the documents for sale and the insurance policy are relevant. Here in Ext.A2 issued by RTO Registration details of the vehicle, the year of manufacture noted as 2017 model. Since OP raised a contention that the complainant purchased the vehicle with full knowledge that it belongs to 2017 model, it is the bounden duty lies upon the complainant to prove his averment. By producing Ext.A5 RC of another person and on examining one person who purchased 2018 model after the complainant as Pw2 is not sufficient. Complainant should have produced the Insurance certificate, sales certificates, Form No.22 before the commission to show that OP NO.2 had made misrepresentation about the year of manufacture as 2018, Since complainant failed to prove his contentions raised against OPs, we cannot come to a conclusion that there was no misrepresentation about the year of manufacturer of the vehicle in dispute either by the dealer or by the manufacturer. Further as Ext.A2 Registration details shows that the year of manufacture of the vehicle as 2017 July, details and as the complainant is not disputing the details of the vehicle mentioned in Registration details, it is clear that OP No.2 furnished the chassis number, Engine number and model of the vehicle to motor vehicle department for the registration are correct.
Further complainant pleaded that the vehicle was financed from KGB (Chemperi Branch) but the complainant very cleverly did not produce the loan agreement before us to show the details about the vehicle mentioned in the agreement.
In view of the discussion stated above, we are of the view that the complainant was aware of the purchase time itself that the APE vehicle in dispute was manufactured in the year 2017 and there is no deficiency in service or unfair trade practice on the part of opposite parties1 and 2.
In the result, complaint fails and hence it is dismissed. No order as to cost.
Exts
A1- Invoice (Subject to proof)
A2-Copy of RC Details (Subject to proof)
A3-Copy of Lawyer notice
A4-Postal receipt (2 in numbers)
Pw1-Complainant
Pw2-Thoamas- witness of complainant
Dw1-Renjith P-witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
