BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 10^th day of January 2017

Filed on : 18.01.2013

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.42/13

Between

O R D E R

Beena Kumari V.K., Member

1) A brief statement of facts of this complaint is as stated below:

The complainant Sri. K.R. Rajan, who is a driver by profession is earning his livelihood by undertaking the transportation of materials from various shops at Palarivattom in Ernakulam District to their customers all over Kerala. The complainant sold his old vehicle to meet his financial needs and purchased an APE mini 4 wheeler manufactured by the 1^st opposite party- Piaggio Vehicles Pvt. Ltd. which was sold by the 3^rd opposite party- SML Motors, the authorised dealer of the 1^st opposite party. The 2^nd opposite party is the regional office of the 1^st opposite party at Edappally, Kochi. The complainant had paid Rs.173,599/- to the 3^rd opposite party for purchasing the vehicle on 18.01.2011. The complainant availed the financial assistance from the 4^th opposite party – SML Finance Ltd. at Edappally to purchase the above vehicle and the Registration Number of the vehicle is KL 39C 4898. Within a few days of its purchase, the vehicle started showing defects like clutch complaint, oil leak, diesel tank leak, accelerator complaint, motor complaint, tyre complaint and gear problem. The complainant had to approach the 3^rd opposite party service station on several times to cure the defects and to replace the defective parts. The vehicle caught fire within 3 kms of its journey due to cable problem and the complainant escaped from the fire by grace of God. Moreover, the vehicle suffered brake down on several occasions and the complainant had to hire another vehicle for the transportation and delivery of the goods to the customers thereby incurred extra costs. The continuous defects of the vehicle were informed to the Technical Engineer of the 2^nd opposite party but in vain and the 1^st and 3^rd opposite parties also did nothing to cure the defects but threatened the complainant with dare consequences and now the vehicle is at the 3^rd opposite party's service centre and the complainant is now a coolly worker. The vehicle ran for 13000 kms within 2 years and the complainant tried to sell back the vehicle, but the 4^th opposite party- SML Finance Ltd. offered a megre amount of Rs. 50,000/- only. Apprehending the emergence of further defects and due to financial stringency the complainant did not take delivery of the vehicle. Now the 4^th opposite party is persuading the complainant to surrender the vehicle for Rs.50,000/- and to pay the balance amount of Rs. 100,000/-. The complainant contended that the opposite parties defrauded the complainant by selling a defective vehicle and failed to replace the said vehicle with a new vehicle or to refund the money spent by him on the vehicle, that the opposite parties did not provide the complainant best service of the vehicle. It is also contended that the complainant is entitled to get compensation for the mental agony and for the financial loss suffered by him. The cause of action arose on 18.01.2011 and this complaint is filed claiming a total amount of Rs. 439,536/- towards refund of the price amount with interest @ 12% from 18.01.2011, compensation amount for the mental agony suffered by him, the repairing charges, loss of employment and refund of repairing charges along with costs of the proceedings.

2) Notices were issued to the opposite parties from this Forum and the opposite parties filed their versions.

3) Version filed by the 1^st and 2^nd opposite parties

It is admitted that the vehicle “APE MINI” was purchased by the complainant after paying Rs. 1,73,599.55 on 18.01.2011 from the 3^rd opposite party, an authorised dealer-cum-service centre of the 1^st opposite party and the said vehicle was purchased for commercial purposes and hence the complainant is not a 'consumer' as defined in Consumer Protection Act. Moreover, this complaint is filed after 2 years from the date of the cause of action. Hence, this complaint is not maintainable. It is further contended that the vehicle was provided with 15 months warranty from the date of purchased i.e., from 18.01.2011 to 17.04.2012. Since the vehicle was serviced at unauthorised service centres and altered the vehicle, the warranty provided to the vehicle became null and void for violation of warranty conditions. When the vehicle was brought for the 1^st free service on 26.03.2011, the complainant intimated about earthing wire and wiring kit complaint and on verification, wiring kit alone was scanned and it was damaged due to short circuit. Therefore, the wiring kit was replaced at free of cost under the warranty. No such complaints were raised thereafter. The complainant did not produce the vehicle for the mandatory 3^rd free service thereby violated the warranty condition. The vehicle had plied over 4750 kms when the vehicle was brought to the service centre on 11.07.2011 for rectifying the defects like oil leak, brake and clutch complaint as per job card No. 41763. By that time the non-service had contributed to the damage of the vehicle. However, all the complaints raised by the complainant were rectified free of cost during the warranty service period and there was no manufacturing defect for the vehicle as alleged by the complainant. The allegation of brake down of the vehicle on several occasions and that of vehicle catching fire on road within 3 kms are nor correct, hence denied. The minor complaints of wear and tear due to regular running raised by the complainant were corrected and the vehicle was returned back in good running condition and the complainant had never approached the opposite parties for the replacement of the vehicle. Neither the staff of the 3^rd opposite party had ever threatened the complainant and due to the alteration of the vehicle, the warranty was rendered null and void and the vehicle was not taken delivery from the 3^rd opposite party's service centre after entrusting the vehicle lastly for service. It is submitted that no manufacturing defect or deficiency in service were established by the complainant. Hence, he is not entitled to get replacement of the vehicle with a new one or to get Rs.4,39,536/- towards refund of the price of the vehicle as claimed by the complainant. The 1^st and 2^nd opposite parties sought for the dismissal of the complaint with exemplary costs to the opposite parties.

4) Version of the 3^rd opposite party

It is submitted that the complaint filed by the complainant is barred by limitation and hence liable to be dismissed. Without prejudice to the above, it is submitted that the alteration of the vehicle rendered the warranty null and void, that the vehicle had been delivered after minimum 5, 8 days after service of the vehicle. The subject vehicle suffered from no manufacturing defect as alleged and the smell of burning of the wire was described as fire by the complainant. All the averments raised by the complainant were denied and the 3^rd opposite party sought for the dismissal of the complaint with compensatory costs to the 3^rd opposite party.

5) Version of the 4^th opposite party

It is contended that the complaint is barred by limitation. Hence it is not maintainable in law.

6) The following issues were settled for consideration of this Forum.

Issue No. (i)

Whether the complaint is maintainable in law?

Issue No. (ii)

Whether the complainant has proved manufacturing defect of the vehicle so as to entitle him for the replacement of the vehicle with a new one?

Issue No. (iii)

Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

7) Evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and that of the Motor Vehicle Inspector as PW2 and the documentary evidences furnished were marked as Ext. A1 to A 21 on the side of the complainant. The opposite party adduced oral evidence as DW1 and the documentary evidences furnished by the opposite parties were marked as Ext. B1 to B12 and the Commission Report is marked as Exbt. C1.

8. Issue No. (i)

The complainant has submitted that the cause of action arose on 18.01.2011 and this complaint is filed on 18.01.2013. The complainant's case is that within a few days of the purchase, the vehicle started showing defects like clutch complaint oil leakage and accelerator complaint. Thus after a few day of its purchase, on 18.01.2011 the cause of action had arose. Thus, this complaint is filed within 2 years from the date of the cause of action. This point is decided in favour of the complainant. Another contention of the opposite parties 1 and 2 is that, the subject vehicle was purchased for commercial purpose, hence the complainant is not a 'consumer'. The complainant has specially contended that the vehicle was purchased for earning his livelihood by undertaking the transportation of materials from various shops at Palarivattom to their customers. Thus the complainant is a 'consumer' for the purpose of the Consumer Protection Act. This point is also decided in favour of the complainant.

9) Issue No. (ii)

The 3^rd opposite party had produced the job cards marked as Exbt. B1 to B12 with a view to defend the allegations raised by the complainant. It is alleged that the 3^rd opposite party had raised 3 job cards on the very same day i.e. on 26.03.2011. Exbt. B1, B2 and B3 job cards were seen raised by the 3^rd opposite party. Exbt. B1 shows that wiring kit was replaced under the warranty free of cost. Exbt. B2 shows that new gear box was fitted and Ext. B3 shows that there was starting complaint for the vehicle. The defects were cured and the above defects are not sufficient to prove that the vehicle was suffering from manufacturing defect. The Exbt. B4 is the job sheet dated 17.06.2011 wherein the defects complained of were Beeding leak, clutch tight etc. The above defects were cured by clutch play adjustment, gasket replacement on payment basis for Rs. 518/- at 3850 kms. The Exbt. No. B5 (at 4750 kms) revealed the complaints of the vehicle such as 'Rev Gear slipping', clutch complaint, Brake low and starting complaint and Exbt. B6 - Job card shows that the vehicle showed the starting complaint. The defects were rectified by replacing the speedometer cable. This was the last service under warranty and defects were rectified by the payment of a normal amount of Rs. 95. The complainant had not availed the 3^rd Free service. Hence, as per Ext. B6, the 3^rd service was cancelled. Further, the complainant has not produced his Motor Driving license and badge before this Forum. An Expert Commission was appointed by this Forum and as per Exbt. C1 – Commission Report, no defects were detailed and no major defects were pointed out. There was no answer from the complainant or from the Expert Commission to the question from this Forum as to what are the major defects. The Expert Commission says about Engine vibration but the complainant has no such complaint. Engine foundation, Engine transmission overhauling are not manufacturing defects as alleged by the complainant. Engine was firm. The total bill amount comes to Rs.3,000/- and odd. Since the cable of the speedometer was disconnected, the kilometers run by the vehicle are not made known to this Forum. Further the engine was over burdened by alteration of the vehicle. In view of the facts narrated above we find that the complainant has not established that the subject vehicle was suffering from any manufacturing defect. This issue is therefore decided against the complainant and we find that the complainant is not entitled to get a replacement of the vehicle.

10) Issue No. (iii)

Since the issue No. (ii) is decided against the complainant, we are not inclined to decide the issue No. (iii).

In the result, the complaint is found liable to be dismissed. Hence, the complaint is hereby dismissed.

Pronounced in the open Forum on this the 10^th day of January 2017.

Sd/- Beena Kumari V.K., Member.

Sd/-Cherian K. Kuriakose, President.

Sd/-Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:

Depositions:

PW1 : Rajan K.R.

PW2 : Vinod Kumar N., Motor Vehicle Inspector

DW2 : Johnson T.J.

Date of Despatch of this Order ::

By Post ::

By Hand ::

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