DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Friday the 21st day of July 2023
C.C.295/2017
Complainant
C.K Sathyanathan
S/o C.K Madhavan,
Chathothkandy House,
Karanthoor (P.O),
Kozhikode – 673 571.
(By Adv.Sri.Biju.M)
Opposite Parties
1. Panama Motors,
West Hill,
Kozhikode.
(By Adv.Sri. Pavithran.K)
2. Secretary,
Kunnamangalam Grama Panchayath,
Kunnamangalam.
(By Adv.Sri. Vinod Singh Cheriyan, Adv.Sri. P.K VenuGopalan Nambiar,
Adv.Sri.T.M Khalid, Adv.Smt. Saranya.O)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
- The case of the complainant, in brief, is as follows:
The complainant is a differently abled person. He was provided with a Mahindra Rodeo RZ Scooter with side wheel from Kunnamangalam Grama Panchayath. But resoled tyres were seen fitted on the side wheels of the scooter. There was no brake lever beneath the clutch lever on the left side which is usually found in the vehicles provided to differently abled people. About 2 weeks ago, the scooter stopped abruptly in the road. A local mechanic, after inspecting the vehicle, informed that the battery of the vehicle was down. Thereafter he informed the matter to the first opposite party. But they did not do anything. Now he is not in a position to continue his lottery sale as the vehicle could not be driven. The opposite parties are responsible for the loss and inconvenience caused to him. Hence the complaint to direct the opposite parties to rectify the defect in the vehicle and to pay Rs.50,000/- as compensation to him.
- The opposite parties resisted the complaint by filing written version separately. According to the first opposite party, the complainant is not a consumer as defined under the Consumer Protection Act. The vehicle was delivered to the complainant free of cost as per the scheme launched by the Govt. of Kerala for supply of two wheelers to differently abled persons. No consideration has been obtained from the complainant for the supply of the scooter. There had been no direct transaction between complainant and the first opposite party in connection with the purchase of the scooter. The first opposite party had no occasion to sell a scooter to the complainant. There is no privity of contract between them and they are unnecessary party to the proceedings.
- The complaint is bad for non-joinder of necessary parties. The manufacturer of the vehicle is not in the party array. The first opposite party is supplying only two wheelers and are not converting two wheeler as a three wheeler by making alteration to the original vehicle to suit the vehicle for use of differently abled persons. There is no manufacturing defect in the vehicle. There is no complaint to the battery. The allegation that the first opposite party failed to extend proper care and attention to the vehicle is false and hence denied. The vehicle was delivered to the second opposite party as per the order placed by the Kerala State Industrial Enterprises Limited. The value of the vehicle was paid by the Kerala State Industrial Enterprises Limited through the second opposite party. After delivery of the vehicle, the complainant had taken the vehicle to AFIA Engineering Pvt. Ltd to convert the same as a three wheeler. They are necessary party to the proceedings. The complaint as alleged might have occurred on conversion of the vehicle from a two wheeler to three wheeler. The Kerala State Industrial Enterprises Limited is a necessary party. The defects as alleged by the complainant are to be proved by taking an expert opinion. The complainant is not entitled to get any reliefs as claimed. With the above contentions, the first opposite party prays for dismissal of the complaint with costs.
- According to the second opposite party, the complaint is not maintainable since the matter of providing scooter to differently abled person by a local self Govt. Institution does not come under the purview of the Consumer Protection Act, 1986. The complainant has not paid anything to the second opposite party. The scooter was provided to him free of cost and therefore he does not come under the definition of a Consumer. There is no case for the complainant that there was any failure on the part of the first opposite party in any manner. He never approached them with any sort of complaint regarding mechanical problem of the vehicle. The second opposite party is totally unaware of the mechanical problem or the consequent inconvenience claimed to have been caused to the complainant. They are unnecessarily dragged to the litigation in order to make undue monetary gain. The second opposite party, therefore, prays for dismissal of the complaint with compensatory costs.
- The points that arise for determination in this complaint are:
- Whether the complaint is maintainable?
- Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?
3) Reliefs and costs.
- Evidence consists of the oral evidence of PW1 and Exts. A1 to A8 on the side of the complainant. RWs 1 and 2 were examined and Ext. B1 was marked on the side of the opposite parties. MO1 (battery) was also marked.
- Heard. Brief argument notes were filed.
- Point No 1: The opposite parties have contended that the complainant is not a consumer as defined under the provisions of the Consumer Protection Act and as such the complaint is not maintainable. Along with the written version, the second opposite party had filed I.A No.213/2018 challenging the maintainability of the complaint. After hearing both sides, the said petition was dismissed by our learned - predecessors- in office as per Order dated 26-11-2018. The order is extracted below:
“The complaint filed by the petitioner is for getting compensation from the opposite parties for delivering a defective vehicle to him. The second opposite party Kunnamangalam Grama Panchayath who had delivered the vehicle to the petitioner filed I.A 213/2018 challenging maintainability of this complaint before this Forum. According to them “the matter of providing a three wheeler to a handicapped person by the local self Govt. Institution does not come under the purview of Consumer Protection Act 1986. Therefore this petition is not maintainable”. Petitioner filed counter objecting this contention.
Heard both sides. The petitioner/second opposite party has not stated the reason why a complaint is not maintainable against local self Govt. Institution as stated by the opposite party. No explanation was given in this regard. So we are of the view that the reason showed in the I.A is not sufficient to allow the petition. Hence the I.A is dismissed.”
The said order is not seen challenged by the opposite parties. Thus the question regarding maintainability stands already answered in favour of the complainant and hence this point does not arise for consideration.
- Point No.2: The complainant is a differently abled person. The first opposite party is the authorised dealer of Mahindra Two Wheelers Ltd and the second opposite party is the secretary of Kunnamangalam Grama Panchayath. The complainant has approached this Commission with a grievance that the Mahindra scooter with side wheel allotted to him as per the Govt. scheme from Kunnamangalam Grama Panchayath began to show complaints and there was failure on the part of the opposite parties to take necessary steps to repair the vehicle and to redress his grievance. The prayer in the complaint is to direct the opposite parties to take steps to repair the vehicle and pay compensation of Rs.50,000/-.
- The complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the certificate of registration of KL-57-L-7432 scooter, Ext A2 is the copy of the insurance certificate, Ext A3 is the copy of the pass book issued by Akshayasree Swayam Sahaya Sangam, Ext A4 is the copy of the bank statement, Ext A5 is the copy of the pass book of Ganga Swasraya Sangam, Ext A6 is the copy of the disability certificate, Ext A7 series are the receipt and invoice issued by Panama Motors, Calicut and Ext A8 is the reply to the application filed by the complainant under the Right to Information Act furnished by Kunnamangalam Grama Panchayath.
- The case advanced by the first opposite party is that there had been no direct transaction between them and the complainant and they had no occasion to sell the scooter to the complainant and in fact the vehicle was delivered to the secretary of Kunnamangalam Grama Panchayath as per the order of Kerala State Industrial Enterprises Ltd in view of the scheme introduced by the Govt. of Kerala for supply of two wheelers to differently abled persons. The two wheeler so supplied was altered and converted and so they are not responsible for the defects, if any. It is also the case of the first opposite party that the complainant has not approached them for repairs as alleged in the complaint and the allegation of manufacturing defect is also denied by them. The managing partner of the first opposite party was examined as RW2. RW2 has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. Ext B1 is the copy of the invoice dated 27-07-2018.
- The stand taken by the second opposite party is that the scooter was supplied to the complainant entirely free of cost and the Panchayath is totally unaware of the mechanical problems alleged to have been caused to the vehicle and the consequent inconvenience claimed to have been caused to the complainant. According to the second opposite party, the complainant had never approached them with any sort of complaint. The secretary of the Panchayath was examined as RW1, who has given evidence in support of the contentions in the written version.
- As already stated, the complainant is a differently abled person and the vehicle involved in this case is a Mahindra Rodeo RZ Scooter bearing Reg. No. KL-57-L-7432. It was allotted to him on 07-04-2015 from Kunnamangalam Grama Panchayath under a Govt. scheme for the supply of two wheelers to differently abled persons. No consideration was paid by the complainant. This is admitted by PW1 in the cross examination. The vehicle in question was delivered by the first opposite party to the second opposite party as per the order placed by the Kerala State Industrial Enterprises Ltd in view of the scheme introduced by the Govt. The purchase value was paid to the dealer by the Kerala State Industrial Enterprises Ltd through the second opposite party Panchayath.
- The grievance of the complainant is that on 18-09-2017 the said vehicle suddenly stopped on the way and the first opposite party neglected to repair the vehicle and the second opposite party did not extend any help in this matter despite his request. It is stated in the complaint that the problem was with regard to the battery. The opposite parties have denied any deficient service on their part. According to them, the complainant has not approached them. RW2 has given evidence that after the institution of the complaint, on 18-11-2017 and on 27-07-2018 the vehicle was reported for service and repairs and same was promptly attended to by them. Ext B1 is the copy of the invoice dated 27-07-2018 of such repairs. The complainant has not produced any evidence to show that the matter was reported to the opposite parties. In a consumer complaint, the onus is on the complainant to prove deficiency of service. But in the instant case, there is no proof of any deficiency of service on the part of the opposite parties.
- The alleged complaint arose on 18-09-2017 ie, nearly two and half years of the delivery of the vehicle. It may be noted that the first opposite party is supplying only two wheelers and it is an admitted fact that the said two wheeler was converted by making alterations to the original vehicle to suit the vehicle for use of a differently abled person. Admittedly the said alteration was not made by the first opposite party. At the time of evidence, PW1 has alleged mechanical and manufacturing defects to the vehicle. The alleged issue of manufacturing defect was also projected at the time of hearing by the learned counsel for the complainant. But on a careful consideration and scrutiny of the evidence in hand, it can be seen that there is absolutely nothing to show that the vehicle is having any manufacturing defect. Even the complainant has no specific allegation as to any such manufacturing defect. The complainant has failed to make available any technical/expert report to support his allegation that the said vehicle is having inherent manufacturing defects. Not even a single document has been placed on record in support of the contention that there is manufacturing or mechanical defect in the vehicle as alleged. The vehicle is still in the possession and use of the complainant. Ext B1 would show that as on 27-07-2018 the vehicle had run 14069 kms. This would indicate that the complainant was in extensive use of the vehicle. This is also indicative of the fact that there is no manufacturing defect in the vehicle or else, he would not have been able to drive it all these years and that too to the extent of 14069 kms. The complainant could not establish that the vehicle is having any inherent manufacturing defect.
- Another important aspect is to be noted is that Mahindra Two Wheelers Ltd is the manufacturer of the vehicle. The complainant has not taken any steps to implead the manufacturer in spite of the specific contention of non-joinder of necessary parties raised by the first opposite party in the version. The complainant is not entitled to make any complaint of manufacturing defect without impleading the manufacturer. As rightly pointed out by the learned counsel for the first opposite party, even if it is taken that the vehicle is having manufacturing defect, the manufacturer or dealer in this case cannot be made liable since alterations were made to the vehicle outside, without the consent of the manufacturer.
- From the above discussion, what emerges is that there is no proof of any unfair trade practice or deficiency of service on the part of the opposite parties and consequently the complaint must fail.
- Point No:3 In view of the finding on the above points, the complainant is not eligible to claim and get any relief as prayed for.
In the result, the complaint is dismissed. No order as to costs.
MO1 battery shall be returned to the complainant.
Pronounced in open Commission on this the 21st day of July, 2023.
Date of Filing: 10-08-2017.
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PRESIDENT MEMBER MEMBER
APPENDIX
Exhibits for the Complainant :
Ext A1 - Copy of the certificate of registration of KL-57-L-7432 scooter.
Ext A2 - Copy of the insurance certificate.
Ext A3 - Copy of the pass book issued by Akshayasree Swayam Sahaya Sangam.
Ext A4 - Copy of the bank statement.
Ext A5 - Copy of the pass book of Ganga Swasraya Sangam.
Ext A6 - Copy of the disability certificate.
Ext A7 Series - Receipt and invoice issued by Panama Motors, Calicut.
Ext A8 - Reply to the application filed by the complainant under the Right to Information Act furnished by Kunnamangalam Grama Panchayath.
Exhibits for the Opposite Party
Ext B1 - Copy of the invoice dated 27-07-2018.
Witnesses for the Complainant
PW1 - C.K Sathyanathan (Complainant)
Witnesses for the opposite parties
RW1 – Indu.A
RW2 – Umar Mohiyudheen.
Material Object:
MO1 – Battery.
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PRESIDENT MEMBER MEMBER
True copy,
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Assistant Registrar.
