DOF.5.12.08 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 15th day of May 2010 C.C.No.294/2008 A.C.Karunakaran, Karuna Nivas, Pallikunnu, Kannur (Rep. by Adv.Sunny Joseph) Complainant Proprietor, Gopal Sons, Spare parts Merchant, South Bazar, Kannur 2. Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay rs.2, 335/- together with the cost of these proceedings. The case of the complainant in brief is as follows: complainant is the owner and driver fan auto rickshaw. He purchased three shock absorbers from the shop of the opposite party for his auto rickshaw on 25.5.08 on payment of rs.835/-. Opposite party made believe the complainant that these shock absorbers were useful and qualitatively good opposite party did not issue any bill. Complainant realized while running the Auto that the above said shock absorbers were defective and substandard quality. So he had returned one shock absorber and told him that he is ready to return the other two shock absorbers also. Complainant demanded for the price of the shock absorber already returned but opposite party was not ready to give the price back. Opposite party was also not ready to receive the other shock absorbers or to return its price or else to replace useful shock absorbers. Complainant approached opposite party many time but he was not ready to solve the problem. Complainant sent two registered notice but he returned those notices deliberately. Thereafter when again sent notice on 8.9.08 and replied admitting the purchase and denying other things. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the main allegations of the complainant. The brief content of the version is as follows; It is true that complainant had purchased three shock absorbers for Rs.835/- from opposite party. Opposite party is the dealer in automobiles spare parts and the shock absorbers sold to the complaint were manufactured by Gabriel India Ltd., Pune. Since the manufacturing defects alleged to the shock absorber, the manufacturer should have been impleaded as a necessary party. This opposite party did not sell inferior quality goods. There is no basis on the allegation that the shock absorber purchased by the complainant from the opposite party is defective and not of the required standard. It is not correct to say that the complaint had returned one out of three shock absorbers became of defect and the opposite party has refused to accept the other two shock absorbers and to return their cost or supply shock absorbers of the requisite standard. Complainant did not come to opposite party’s shop as alleged in the complaint. After one month of the purchase complainant came to the shop of opposite party with one shock absorber with a complaint of over action. It was then and there examined and convinced him that there was no defect to that shock absorber. He did not come to opposite party’s shop thereafter. He had no complaint of other shock absorbers and it was never taken to opposite party. If there is any defect it is not this opposite party but Gabriel India Ltd. Is liable and there was no unfair trade practice on the side of this opposite party as a seller. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether the complainant is a consumer and complaint is maintainable? 2. Whether there is any deficiency on the part of opposite party? 3. Whether the complainant is entitled to get the relief as prayed for? 4. Releif and cost. The evidence consist of oral evidence of complainant as PW1 and Exts.A1 to 12, Mo1 & 2 marked on the side of the complainant and on the side of opposite party oral evidence adduced by DW1. Issue Nos. 1 to 4 Admittedly complainant purchased three Shock absorbers from the shop of the opposite party by a payment of Rs.835/-. The opposite party contended first of all that the complainant is not a consumer since the purchase is for commercial transaction. The case of the complainant from the very outset is that he is the owner and driver of the vehicle for which the alleged shock absorbers had been purchased. Purchase and consideration admitted by the opposite party. Explanation substituted by act 62 of 2002 makes it clear that for the purpose of clause (d) of the section 2 of CPA “ Commercial purpose” does not include use by a person of goods brought and used by him exclusively for the purpose of earning his livelihood by means of self employment. Ext.A12. the identity card issued by Kannur Municipality together with Ext.A8, driving license and ext., A10 contract carriage permit undoubtedly proves that the Auto is used by him for earning his livelihood. As far as this case is concerned it is quite evident from the evidence that the complainant purchased the alleged shock absorbers for the purpose of using it for his own vehicle in which the complainant himself had been the driver. Hence there is no doubt that the purchaser complainant is a consumer and the complaint is maintainable. The second important point to be discussed is whether there is any deficiency on the part of opposite party. The complainant’s case is that the shock absorbers purchased form the opposite party’s shop were defective and he went to opposite party’s shop with one out of three shock absorbers and handed over to opposite party and also told that he is ready to return the other two shock absorbers also and demanded to refund the amount or to supply standard shock absorbers. The opposite party’s stand is that he is the dealer in the automobile spare parts and the shock absorbers sold were manufactured by the Gabriel India Ltd., who is the necessary party liable for the defect. Opposite party contended that complainant went to his shop with one shock absorber having complaint of over action. Which was then and there examined and convinced the complainant that there was no defect to the shock absorber? It is a fact that complainant approached the opposite party in his shop with one shock absorber. The other portion of the explanation that the shock absorber produced before him examined then and there and convinced the complainant that the same was defect free is something difficult to digest. Even if examined it cannot be believed that the opposite party convinced the complaint that there was no defect to the shock absorber. The situation explained does not permit to disbelieve the complainant. Anyhow, complainant took only one absorber to opposite party. From the above explained situation it can be assumed that at least one shock absorber was useless and defective. Hence we are of opening that the opposite party is liable to return the price of one absorber to the complainant. The contention of opposite party that he is only a dealer and it is not he, who s liable but the manufacturer is liable for the defect, has not been sustainable under law. The Hon’ble National Commission handed down to its verdict in Bhopal Motors Pvt. Ltd. Vs. Saudan Singh and another(2008 CTJ 601(CP)(NCDRC) that “ in the case where the independent dealership without there being any agency of the manufacturers, then the dealer cannot escape from the liability in respect of the manufacturing defect”/ It is also important to not the position taken in Hyundai Motors Case (2008 CTJ 1127(CP) that “ In fact dealer is the front man or the face of the manufacturer for the sale/marketing its manufactured products, therefore, both of them cannot escape form liability and are jointly and severally liable. In the light of the above discussion we are of opinion that the opposite party is liable to return the price of one absorber Rs.278/- together with Rs.500/- as compensation. Complainant is also entitled for Rs.750/- as cost of these proceedings. Hence the issues 1 to 4 are found in favour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite party to refund the price of one shock absorber Rs.278/-(Rupees Two hundred and seventy eight only) together with Rs.500/- (Rupees Five hundred only) as compensation and Rs.750/- (Rupees Seven hundred and fifty only) as the cost of these proceedings to the complaint within one month from the ate of receipt of this order failing which the complainant is at liberty to execute the order as per the provisions of the consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1 & A2. Returned Registered notice A3.copy of the notice dt.8,.9.08 A4.Replynotice A5.AD card A6 & 7.Bills dt.22.5.08 and 28.5.08. A8.Copy of driving licence of complainant A9.& 10.Copy of contract carriage permit of vehicle No.13/689 and 13/1554/08 issued by RTO A11.Bill dt.5.8.05 issued from Murali Auto house. A12.Copy of ID card of complainant Exhibits for the opposite party: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.A.C.Krunakaran /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
