BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 11^th day of August 2017

                                                                                                                                                Filed on: 23.11.2012

PRESENT:

 Shri.Cherian K. Kuriakose                                  President

 Shri. Sheen Jose,                                               Member

 Smt. Beena Kumari V.K.                           Member.

                            CC.No.735/2012

                                   Between

O R D E R

Cherian K. Kuriakose, President

1)     The case of the complainant is as follows:

        The complainant Sri. Girishkumar is the owner of an Autorishaw bearing Reg. No.Kl-35/B 9269 manufactured by the 2^nd opposite party.  He purchased the same from the 1^st opposite party for commercial usage inorder to eking out of his livelihood from the source of income derived by plying the vehicle.  The vehicle was Trump 15 Pick-up 2040 MM Goods Carriage Autorikshaw and he purchased on 10.02.2011.  Immediately after one month from the date of purchase, the Radiator Tube of the vehicle was broken and Piston of the engine was struck. When the vehicle was taken for repairs before the 1^st opposite party, it took 2 months to repair the vehicle.  Thereafter, the vehicle developed leakage of engine oil and the engine pump also became defective.  Thereafter, there were various complaints while in starting the engine.  The vehicle was suffering from serious manufacturing defects and the opposite parties are not taking any steps to cure the defects of the vehicle or to return the purchase price of the vehicle.   The complainant caused to issue a legal notice to the opposite parties which did not evoke any response.  The complainant therefore, pray for the refund of the purchase price with compensation for mental agony, valued Rs.50,000/- and costs of the proceedings.

2)     Notices were issued to the opposite parties.  Both opposite parties filed a joint version contending inter-alia as follows:

3)     The complaint is not maintainable.  He is a business man who engages several drivers for plying his goods carriage vehicles.  The driver of the vehicle was blatantly misusing the vehicle.   When the radiator tube of the vehicle is broken, the over heating indicator and temperature gauge would give a warning and the vehicle was supposed to stop immediately.  Whereas the driver of the vehicle ignoring the warning of over heating, had driven the vehicle further which caused serious engine damage.  However,  as a good  will gesture the opposite party had repaired the vehicle under warranty.  The work was completed with entire satisfaction of the complainant.  The complainant had delayed taking delivery of the vehicle.  The allegation of delay in service is false.  On 19.10.2011, the complainant’s driver brought the vehicle to the 1^st opposite party only for changing the oil and filter.  The complainant did not carry out the free services of the vehicle had regular intervals of 5000 kms and thereby had violated the conditions of the warranty.  On 09.03.2012, the complainant had complained regarding the starting trouble of the vehicle.  The repair work was done at 12536 kms.  On examination, it was found that the engine of the vehicle was ceased due to over loading and battened misuse of the vehicle.  The complainant wanted to get the work done under the warranty.  But since the complainant had violated the warranty conditions the opposite party informed their inability to provide warranty.  On the approval of the complaint the opposite party carried out the repair work on payment basis.  The complainant did not take any interest in taking delivery of the vehicle.  He took the delivery of the vehicle only on 29.12.2012.  He endorsed full satisfaction of the vehicle after a test drive.  The vehicle did not have any manufacturing defect as alleged.  The paid drivers of the complainant has misused the vehicle causing damage to the vehicle.  The complainant had no cause of action against the opposite parties.  The complaint is liable to be dismissed.

4)     The evidence in this case consists of the oral evidence of PW1 and Exbt. A1 to A4 on the side of the complainant and DW1 and DW2 were examined on the side of the opposite parties in addition to the marking of the Exbt. B1 to B8.  The complaint is also availed for answers for interrogatory.  Exbt. C1 Commission report was also marked in this case.

5)     The following issues were settled for considerations:

1.        Whether the complainant had proved that the opposite parties are committed deficiency in services as alleged in the complaint?

2.        Reliefs and costs.

6)      Issue No. (i)

          The complainant relayed on 4 documents to prove the case.  Exbt. A1 registration particulars (copy) would go to show that the vehicle KL-35/B-9269 was registered in the name of the complainant as LMV- goods carriage.  It is seen from Exbt. A2 that he purchased the vehicle from the 2^nd opposite party on 10.02.2011 on payment of Rs. 2,48,168/- on payment of ready cash.  Exbt. A3 is the Advocate Notice issued to the opposite parties on 05.07.2012.  The 1^st opposite party accepted the notice as Exbt. A4. Acknowledgment.  The case of the complainant is that he purchased the vehicle for eking out his livelihood.  He did not produce his driving license showing that he had a valid driving license to drive an LMV – goods vehicle.  During cross examination of PW1 complainant, he admitted that he came to the Forum on the date of his examination in a 2013 model full option Swift car with fancy registration No. Exbt. B1/1 copy of RC particulars of the vehicle would go to show that the vehicle was purchased without a hypothecation.  The complainant was not able to answer as whether he done free services of the vehicle in time.  The complainant did not produce any invoices for the repair carried out by the opposite party.  Though the vehicle was repaired at Kottayam Branch of the 1^st opposite party, the complainant is not seem to have made mention of those things in the complaint.

7)      The above facts would go to show that the complainant was employing some other person to drive the vehicle and that he was not plying the vehicle for his own livelihood as alleged.  The complainant was not available when the Commission Report was prepared.  He had deputed someone else to look after the affairs of the vehicle at the time of inspection by the Commissioner.  Where the commission was taken out after 4 years from the date of purchase of the vehicle.  The complainant had executed Exbt. B5 satisfaction memo dated 29.12.2012 which would go to show that he had no sustaining cause of action.  In page 2 of the Commission Report, it is specifically stated that there was no visible damage to the piston.  The commissioner was concluded that the defects found were due to idling of the vehicle DW1 and 2 who was examined on the side of the opposite party version of the cross examination by the complainant.  The evidence of DW1 S.Suresh the Territory Manager of the 1^st opposite party and that the DW2 Sri.Samba Moorthy, the Authorized Officer of the 2^nd opposite party and Exbt. B5 satisfaction letter signed by the complainant would clearly prove the case of the opposite party as contended in their version.  In the above circumstances, we find that the complainant is not qualified to be a ‘consumer’ within the meaning of the section 2 (1) (d) of the Consumer Protection Act, 1986 and therefore there is no consumer dispute disclose in the facts of the case.  Issue is therefore found against the complainant.

8)      Issue No. (ii)

          Having found the issue No. (i) 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 11^th day of August 2017.

                                                          Sd/- Cherian K. Kuriakose

                                                          Sd/-Sheen Jose,   Member

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

                                                                             Forwarded By Order

                                                                             Senior Superintendent

Date of Despactch:

By Post               ::

By Hand              ::

                                                          APPENDIX

Complainants Exhibits

Opposite party's Exhibits:

Depositions:      

                   PW1                    :        Girishkumar P.V                                                            DW1                    ::        S. Suresh                                                                      DW2                    ::        K.Samba Moorthy  

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