D.O.F. 25.05.2010
D.O.O.10.01.2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. Sona Jayaraman K. : Member
Sri. Babu Sebastian : Member
Dated this the 10th day of January, 2014.
C.C.No.142/2010
P. Rajan,
S/o. Govindan,
‘Krishna Nivas’, : Complainants
Kavumthazham P.O.
Koodali, Kannur.
(Rep. by Adv. T.P. Hareendran)
1. Premier Ltd,
Mumbai, Pune Road,
Chinthu vad, Pune
Maharashtra – 411019. : Opposite Parties
2. Essar Premier
(Son Marine Automobiles)
Room No.55, Caps Centre,
P.O. Thottada, Kannur
(Both OP 1 & 2 rep. by Adv. T. Ramakrishnan)
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `3,00,000 as compensation.
The case of the complainant in brief is as follows : Complainant purchased a Red Star SA Model vehicle from 1st opposite party through 2nd opposite party for a price of `3,61,974 on 02.08.2007. On enquiry opposite party made believe him that the performance of the vehicle is excellent and the spare parts of the same are abundantly available in the market. But within the period of six months itself various parts of the vehicle namely suspension shock absorber, balance rod, break piston, Tyre Road etc of the vehicle became defective. The vehicle was then taken to the service centre of the opposite party. It is repaired thereafter temporarily and told him that certain spare parts required to be replaced but it is repaired with old parts because of non-availability of new one. The vehicle started showing the same defect within one month. It was taken to opposite party service centre again and he was told that the spare parts would be available within no time. It was kept there for about one month and somehow it was repaired with old abandoned spare parts the vehicle has been continuously shown defects and about ten times in a month. Vehicle had been taken to opposite party service centre to rectify the defect which caused heavy loss to complainant. For his use he hired other vehicles to transport the articles and thereby loss of `1,50,000 in this regard. The defects and troubles of vehicle increased day by day which later became not capable for use and thus the vehicle taken to opposite party’s service centre on 01.04.2010. Then 2nd opposite party told him that since all the vehicle of some model permanently showing suspension defects 1st opposite party is using new system suspensions for new model vehicle and 1st opposite party has promised to fix this new system to all the existing vehicles. But 2nd opposite party did not make available this system to the vehicle of complainant till date.
Moreover, they are not distributing in the market the spare parts of Road Star Model vehicles. Hence the complainant is not able to rectify the defects of the vehicle road worthy for the use and thereby happened to be kept idle in his courtyard. He has sustained loss of `1,50,000 for hiring vehicles and suffered great mental pain. Loss of customers also made loss to complainant. Manufacturing defects of the vehicle as well as poor services of the opposite parties caused the misery to complainant.
Opposite parties filed version jointly, the brief of which is given as follows : The complaint is not maintainable for want of jurisdiction. All cases arising out of warranty shall be subject to the jurisdiction of the courts at Mumbai only. The complainant is not a consumer. Complainant did not produce any documentary evidence to show that there was any deficiency in service or the vehicle is having any manufacturing defects. It is contended that the allegations that within six months of purchase of the vehicle, its suspension, shock absorbers, balance rod, break piston, tyre rod end failed without any reason, is not true. It is denied that the vehicle is repaired with old spare parts and as spare parts are not available and the vehicle repaired with old spare parts which were abandoned by other vehicles. The entire problem that has been alleged by the complainant are only due to overloading and as the vehicle is not properly maintained as per the guide lines. The allegation that at least once in 10 days in every month the vehicle was repaired is not true. Opposite party also denied that the spare parts of Roadstar Model vehicle are not made available in the market. It is false to say that the vehicle had been kept in the house for more than last one month. The complainant did not follow the advice for handling the said vehicle correctly and it is the negligence of the complainant which might have given rise to the alleged problems. The vehicle handed over to complainant was free from any defects. There is no deficiency in service on the parts of opposite party and hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
- Whether the complaint is maintainable in this Forum?
- Whether there is any deficiency in service on the part of opposite parties, if so, who is liable?
- Whether the complainant is entitled for the remedy as prayed for?
- Relief and cost.
The evidence consists of the oral evidence adduced by PW1 and DW1 and Ext.A1 to A6 and Ext.B1 to B3.
Admittedly complainant purchased the vehicle on 02.08.2007 and complaint filed on 24.05.2010. At the time of filing the complaint as per complainant’s case his vehicle was kept idle for last one month since it could not be repaired due to the non-availability of spare parts. Complainant filed chief affidavit on 13.10.2010. The condition of the vehicle had been same as that of the date of filing. On 11.07.2011 complainant filed additional chief affidavit. By the time the vehicle got repaired by obtaining spare parts from the shop of one Sharafudin, who is a retailed of old spare parts.
In the light of the affidavit filed by the complainant it can be very well be assumed that the vehicle for the time being remains on road worthy. Thus the main question that is to be considered at this juncture is nothing but whether the complainant is entitled for the expenses met by him for the repair of the vehicle and of compensation for the loss alleged to be sustained by him during the period of keeping the vehicle sick and idle. Complainant’s prayer for compensation for an amount of `3,00,000 remains as such even under the condition vehicle had been used road worthy. The price of the vehicle is `3,61,974 when it was purchased on 02.08.2007.
Opposite parties have the case that in view of the clause I of the warranty policy, the vehicle is not at all within the warranty period and hence, the complainant is not at all entitled to any of the benefits arising out of it. Opposite parties also contended that the vehicle has also been attended as and when requested by the complainant and hence there is no deficiency in service. The contention taken by the opposite parties with respect to the warranty has not been specifically denied by complainant. If that be so the vehicle cannot be considered within the warranty period. Ext.A5 bill dated 02.11.2010 and A6 bill dated 27.11.2010 are the two important bills which the complainant wanted to be considered.
According to complainant he has rectified the defects of the vehicle by repairing it not from the service centre of opposite party but from the workshop from Chalode. This repair had been done much after the warranty period. Complainant did not adduce evidence to the effect that he is entitled for the amount of repair carried out for his vehicle beyond the warranty period that too from the service centre other than that of the opposite party. The allegation of the complainant that there is manufacturing defect for the vehicle has no substance since the vehicle at present rectified the entire defects. The vehicle as such is road worthy for the time being. Complainant failed to establish the condition of the vehicle before carrying out the repair works. Complaint was filed on 25.05.2010. The above said repair work of Ext.A6 had been conducted in between 02.11.2010 and 25.11.2010, which is short during the pendency of the complaint, without giving notice to opposite parties. Those facts were not brought to the notice of the Forum. The vehicle, the subject matter of dispute the complainant is expected to be taken consent of the Forum in order to alter the condition of the vehicle. Complainant has the obligation to bring to the notice of the Forum, the then existing condition of the vehicle. At least steps could have been taken to get a Commission be appointed so as to obtain a report of the then existing condition of the vehicle. Complainant has not even taken initiative to examine neither the seller of spare parts (Ext.A5) nor the repairer, who has issued Ext.A6, for the purpose establishing the state of affair regarding the vehicle.
Complainant miserably failed to establish his case. The available evidence on record is not sufficient to cast liability upon the opposite party for any sort of relief. Hence the issues No.1 to 3 stands found against complainant.
In the result, the complaint is dismissed. No order as to costs.
Dated this the 10th day of January, 2014.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Copy of Sale certificate.
A2. Copy of Temporary R.C.
A3. Provisional receipt dated 06.04.2007.
A4. Provisional receipt dated 02.08.2007.
A5. Bill dated 02.11.2010.
A6. Bill dated 25.11.2010.
Exhibits for the opposite party
B1. Copy of Voters ID card of witness.
B2. Copy of Certificate showing qualification dated 22.01.2004.
B3. Experience Certificate dated 07.08.2012.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. Rineesh K.R.
/forwarded by order/
SENIOR SUPERINTENDENT
