BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 17th day of February 2017
Filed on :05-03-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.169/2013
Between
Vinu Thomas, : Complainant
S/o. K.J. Martin, (By Adv. Lal K. Joseph,Luxy T.A.,
Karukayil house, Maradu P.O., M/s. Sheriff Associates, 41/318-c,
Thomaspuram, Ernakulam. Kolliyil Buildings, Near Mullassery
Canal, Chittoor road, Kochi-682 011)
And
1. Piaggio Vehicles Pvt. Ltd., : Opposite parties
Having its Regd. Office at 102, (1st O.P. By Adv. Binu Mathew,
“Phoenix,' Bund Garden road, M/s. A.K.Chinnan, Arimboor house,
Pune 411 001, Having Branch Town Hall Road, Kochi-682 018)
at “Bhadra', 34/2429/A,
High School Junction,
Edappally, Cochin-682 024.
Rep. by the Manager.
2. SML Motors, (2nd o.p by Adv. B.S. Suresh Kumar,
SML Building, Toll Junction, M/s. Suresh Associates,#150,
Pookkattupadi Road, 1st floor, Kerala High Court Advocates'
Edappally Road, Edappally Chamber, Ernakulam-682 031)
Cochin-682 024,
rep. by the Manager.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
The complainant is a driver by profession and earning his livelihood by undertaking transportation works of various shops at Champakkara market. He purchased a mini four wheeler goods vehicle
manufactured by the 1st opposite party, through the 2nd opposite party, dealer and it was registered as KL-39-C-4534. He purchased it on 27-12-2010 on payment of an amount of Rs. 1,73,599/-. Apart from the above payment the complainant had spent additional amounts for altering the vehicle so as to meet the requirements of the complainant. After few days of its purchase the vehicle had shown defects such as starting problem, engine oil leakage and wheel alignment problem. The complainant approached the opposite parties to get the defective vehicle replaced but the opposite parties refused to do so. The complainant therefore prayed for a direction to the opposite parties to replace the vehicle with new one along with compensation and costs for the deficiency in service.
3. Notices were issued to the opposite parties. Both opposite parties appeared and resisted the claim by filing their respective versions.
4. The 1st opposite party in their version had contended that the complaint filed on 05-03-2013 is a time barred complaint as it was hit by Section 24A of the Consumer Protection Act. The vehicle was used for commercial purposes and therefore the complainant is not a consumer. The complainant purchased the vehicle on 27-12-2010 and the vehicle is not covered under warranty since the complainant had violated the warranty conditions. The complaint was filed after the expiry of the warranty period. The complainant did not produce the vehicle for the periodical maintenance. The 4th mandatory free service was not availed by the complainant and it is a violation of the warranty conditions. All other allegations in the complaint are denied by the 1st opposite party. The complainant also contended that the vehicle was subjected to alteration at the instance of the complainant and therefore the vehicle is out of purview of warranty .
The 2nd opposite party also took the very same contentions and denied their liability as it was only the dealer how sold the vehicle
manufactured by the 1st opposite party. The complaint is therefore sought to be dismissed.
6. The following issues were settled for consideration.
i. Whether the complainant had proved that there was any deficiency in service on the part of the opposite parties?.
ii. Reliefs and costs.
7. The evidence in this case consists of the oral evidence of PW1 and PW2 and Exbts. A1 to A31 documents on the side of the complainant and Exbts. B1 to B17 documents on the opposite parties in addition to the oral evidence of DWs 1 and 2. Exbt. C1 commission report was also marked.
8. Issue No. i. On going though the voluminous documentary evidence adduced by the parties it is seen that the complainant was using the vehicle for commercial usage. There is nothing in evidence to show that the complainant was eking out his livelihood only through the use of the vehicle. It is admitted in the complaint that the vehicle was subjected to alterations to suit his convenience. The opposite party contended that as there was alteration effected for the vehicle there is violation of warranty conditions. As on 03-10-2012 the vehicle had already run 42,000 kms. The evidence adduced in this case were not relating to the allegations in the complaint. The complaint is also found to be time barred U/s. 24A of the Consumer Protection Act 1986 since the allegation of the complainant is manufacturing defects. We therefore find the issue against the complainant.
9. Issue No. ii. Having found issue No. 1 against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 17th day of February 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : Operation Maintenance & Warranty
Manual
A2 : Tax receipt from 03-01-2011 to
31-12-2011
A3 : True copy of tax token
A4 : Insurance universal Sompo
03-01-2011
A5 : Copy of statement from
03-01-2012 to 02-01-2013
A6 : Receipt dt. 24-01-2012
A7 : Copy of retail invoice dt. 27-12-2010
A8 : Cash bill dt. 16-09-2011
A9 : Cash bill dt. 16-09-2011
A10 : Cash bill dt. 03-11-2011
A11 : Cash bill dt. 30-11-2011
A12 : Cash bill dt. 30-11-2011
A13 : Cash bill dt. 03-11-2011
A14 : Cash bill dt. 28-07-2012
A15 : Cash bill dt. 28-07-2012
A16 : Cash bill dt. 28-07-2012
A17 : Cash bill dt. 28-07-2012
A18 : Cash bill dt 17-11-2011
A19 : Invoice No. 09-03-2012
A20 : Copy of labour bill dt. 07-03-2012
A21 : Cash bill dt. 07-03-2012
A22 : Copy of cash bill dt. 09-03-2011
A23 : Cash bill dt. 09-03-2012
A24 : Cash bill dt. 21-02-2012
A25 : Cash bill dt. 21-02-2012
A26 : Labour bill
A27 : Cash bill dt. 01-11-2012
A28 : Cash bill dt. 01-11-2012
A29 : Copy of Certificate of registration
A30 : Statement of account
A31 : Attested copy of driving license
C1 : Commission Report
C2 : Commission Report
Opposite party's exhibits: :
Exbt. B1 : Copy of letter dt. 20-06-2016
B2 : two photos
B3 : Job card dt. 27-01-2011
B4 : Job card dt. 17-03-2011
B5 : Job card dt. 06-05-2011
B6 : Job card dt. 13-07-2011
B7 : Job card dt. 30-07-2014
B8 : Job card dt. 13-09-2011
B9 : Job card dt. 10-10-2011
B10 : Job card dt 03-11-2011
B11 : Job card dt. 16-11-2011
B12 : Job card dt. 24-11-2011
B13 : Job card dt. 18-02-2012
B14 : Job card dt. 05-03-2012
B15 : Job card dt. 26-07-2012
B16 : Job card dt. 11-10-2012
B17 : Job card dt. 30-10-2012
Depositions
PW1 : Vinu Thomas
PW2 : P.J. James
DW1 : Chikku Mohan
DW2 : Johnson T.J.
Copy of order despatched on :
By Post: By Hand:
