DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of August 2017 

Present  : Smt.Shiny.P.R,  President

             : Smt.Suma.K.P, Member

             : Sri. V.P.Anantha Narayanan, Member       Date of Filing : 27/09/2012

                                                            CC/177/2012                                                                     

Akbar,                                                                              :      Complainant

S/o Ayamutty,        

Kuzhimannil House,

Kunthippuzha,

Mannarkkad.

Palakkad.

(Adv.P.R.Jayakrishnan)

                                                                           Vs

1.  Proprietor, Surya Motors,                                                         :      Opposite parties

     Melamuri, Palakkad (PO)

     (Adv.M.P.Rajesh)

2.  Managing Director,

     Kumar Motors Pvt.Ltd,

     Gat No.316, Kasaramboli,

    Ambedwet PO, Pirangat, Mulshi,

     Pune 412 111.

     (Adv.K.B.Arun Kumar)

3.  Manager,

     Mahindra & Mahindra Financial Service Ltd,

     2^nd Floor, T.M.Complex, Chandranagar,

     Palakakd

     (Adv.Viju.K.Raphel)

O R D E R

By Smt.Shiny.P.R, President,

          The complainant has purchased an auto rickshaw bearing registration No.KL-50A-8305 Engine No.AIE 0496141, chasis No. MDGDPGLX 4A 9P 02088 from the 1^st opposite party on 28.6.2011.  The 1^st opposite party has introduced the vehicle assuring that the autorickshaw  is having so many peculiarities, like more mileage than the other autorickshaws etc.  And also assured that mechanically it is more strong and efficient than the other similar vehicles.  Believing the assurance given by the 1^st opposite party dealer, the complainant has purchased the vehicle.

          Complainant submitted that the frontage of the vehicle is cracked within one month from the date of purchase.  Chasis and frontage are not in a usable condition its stumbolts are frequently failing and its shock absorber are not in a working conditions. Then the complainant approached the 1^st opposite party. He refused to repair the defects saying that its spare parts are not supplied by the 2^nd opposite party. Now the vehicle is totally in such a condition that cannot be used in a public road safely.  These defects are the manufacturing defects occurred while producing these vehicles.     Complainant further submits that the vehicle cannot be used and is totally unfit for the use.  Complainant has spent Rs.1,71,640/- (Rupees One Lakh seventy one thousand six hundred and forty rupees only) including the road tax for three years and insurance of Rs.4,640/-(Rupees four thousand six hundred and forty only) for the purchase.  After that complainant has to spend some more money for its body work also. Complainant  has  purchased this vehicle with a loan from bank at Palakkad.  He has to repay the loan amount as earlier as possible.  Otherwise he will have to face legal proceedings for that.  This is a public carrier vehicle used as taxi autorickshaw.  As it cannot be used in a public road, there are no earnings from this vehicle and he could not repay his loan properly.  Therefore the 1^st and 2^nd opposite parties are liable for loss of the complainant.  Complainant has sent a registered lawyer notice to the 1^st and 2^nd opposite party on 20.06.2012 to get the refund of an amount of Rs. 1,71,640/- (Rupees One Lakh seventy one thousand six hundred and forty rupees only) or to replace the vehicle with a new one.  The 1^st opposite party has received the notice and sent a reply notice, admitting the purchase of the vehicle from him, but denied all other allegation and stated that the company alone is responsible for the loss sustained to the complainant.  Hence the complaint. Complainant prays for an order directing 1^st and 2^nd opposite parties to pay an amount of Rs. 1,71,640/- (Rupees One Lakh seventy one thousand six hundred and forty rupees only) as compensation or to replace the vehicle by a new one in good condition to the complainant.

Complaint was admitted and issued notices to opposite parties. Opposite parties entered appearance and filed their separate version.

1^st opposite party filed version contending the following;-

          1^st opposite party admitted the purchase of autorickshaw. But all other allegations in the complaint are denied by this opposite party.  After the purchase of the vehicle the complainant had approached 1^st opposite party for the periodical maintenance and services and 1^st opposite party had done the periodical maintenance and services frequently in satisfactory manner and that the complainant was very much satisfied with the same.  While giving the vehicle for periodical maintenance the complainant had never expressed any of the defects as mentioned in the complaint or in the notice.    The opposite party had caused a reply notice to the notice send by the complainant stating the true facts. There is no deficiency in service from their part. Hence complaint against the 1^st opposite party has to  dismissed with the cost.

          2^nd opposite party filed their version contending the following :-

2^nd opposite party admitted the purchase of vehicle from the 1^st opposite party.  The complainant has purchased the vehicle on his own accord and only after careful consideration and inspection of the side of vehicle.  2^nd opposite party has offered warranty for the period of 6 months for the vehicle from the date of sale or 15000 kilo meter whichever is earlier.  The vehicle was purchased by the complainant on 18.06.2011 and therefore the warranty period of the vehicle was already expired on 17.12.2011.  It is submitted that during the warranty period, this opposite party has not received any kind of complaint from the complainant regarding any manufacturing defects or otherwise.  If the alleged defects are existed immediately after the purchase of the vehicle as alleged, certainly the complainant would bring to the notice of the 1^st opposite party at the time of periodic service.  This opposite party had already supplied necessary spare parts to the 1^st opposite party.  It is submitted that no communication was received from the 1^st opposite party requiring the supply of spare parts to this opposite party during the relevant time.  The product of the 2^nd opposite party purchased by the complainant is running successfully in the market.  The said vehicle is sturdy, durable and highly efficient.    The complainant was issued the owner’s manual which gives valuable and clear information regarding the warranty conditions with respect of the said vehicle.  The 2^nd opposite party submits that all the so called complaints of the complaint in respect of the vehicle are only due to the rough use of the vehicle by the complainant in respect of the vehicle are only due to the rough use of the vehicle by the complainant.  The alleged problems in the complaint are not attribute to any manufacturing defects, but are effects of utter negligence and mishandling of the vehicle by the complainant.  This opposite party is not aware about the loan said to have been availed by the complainant for purchase of vehicle and this opposite party is not at all responsible for the defaults committed by the complainant in repaying the loan availed.    The complainant is not entitled for the reliefs as claimed in the complaint.    The complaint is devoid of any merits and therefore is to be dismissed.

3^rd  opposite party filed their version contending the following;-

 The complainant for purchasing “autorickshaw” named Kumar 3 Wheeler Parinda bearing registration no. KL 50 A 8305 availed a loan from this opposite party by entering into an agreement with the opposite party.  The amount financed was Rs.1,20,777/- (Rupees one lakh twenty thousand seven hundred and seventy seven only) and the finance charges were Rs.46,623/- (Rupees forty six thousand six hundred and twenty three only).  Thus agreement value was Rs.1,67,400/- (Rupees one lakh sixty seven thousand four hundred only).  The same was agreed to be repaid on 36 monthly installments of Rs.4,650/- (Rupees four thousand six hundred and fifty only).  The first installment was agreed to be paid on the 28.6.2011 and every other installments on the 25^th day of every succeeding English calendar month and the date of the last installment was on 27.6.2014.  All other allegation regarding the mechanical defects condition of the vehicle etc. in the complaint is not known to this opposite party.  This opposite party is only a financier of the above said vehicle.  They further submitted that complainant is a chronic defaulter in repaying the monthly installments. On repeated demands and requests from this opposite party to the complainants for payment of defaulted installments, the complainant has surrendered the vehicle to this opposite party. This opposite party has sold the vehicle in public auction as per the terms of loan agreement, after completing all necessary legal formalities. The proceeds of the said vehicle were adjusted towards the loan account of the complainant as per the terms of agreement. Still there is balance of Rs. 67,853/- towards the loan account of the complainant as on 25.7.2013.   There is no deficiency of service from this opposite party towards the complainant and hence unnecessary party to the complaint.  Hence complaint against this opposite party is to be dismissed with cost.

Complainant filed interim application to appoint an expert commissioner to inspect the vehicle and to file a detailed report. In the interest of justice application was allowed. Commissioner filed interim report stating that the vehicle involved in this case was not available for his inspection.

 Complainant and 1^st and 3^rd opposite parties filed their separate chief affidavit. Ext A1 to A5 marked from the side of the complainant. Ext B1 to B3 marked from the side of the 3^rd opposite party.  Interim commission report is marked as Ext C1.

In this case the following issues are considered.

1. Whether there is any deficiency of service from the part of opposite parties?
2. If so, what is the remedy?

Issues 1 and 2

Complainant and 1^st & 3^rd  opposite parties heard. No representation for 2^nd opposite party. 1^st and 2^nd Opposite parties admitted the purchase of autorikshaw bearing registration No  (KL-50A-8305) Engine No.AIE 0496141, chasis No. MDGDPGLX 4A 9P 02088. 1^st and 2^nd opposite parties filed interim applications seeking permission to cross examine the complainant. In the interest of justice application was allowed. But the complainant did not appear before the Forum for cross examination. Opposite parties contended that complainant has purchased the vehicle only after careful consideration and inspection of the side of vehicle.  2^nd opposite party has offered warranty for the period of 6 months for the vehicle from the date of sale or 15000 kilo meter whichever is earlier. As per Ext A5 it is seen that the vehicle was purchased by the complainant on 18.06.2011 and therefore the warranty period of the vehicle was already expired on 17.12.2011.  It is also seen that during the warranty period, the complainant availed free service of opposite parties without any complaints. 1^st and 2^nd opposite parties contended that during warranty period they have not received any kind of complaint from the complainant regarding any manufacturing defects or otherwise. According to 1^st and 2^nd opposite parties if there are any defects immediately after the purchase of the vehicle, certainly the complainant would bring to the notice of the 1^st opposite party at the time of periodic service. Complainant did not adduce evidence before the Forum to prove that the purchased vehicle has manufacturing defects during warranty period. Expert Commissioner filed interim report stating that the vehicle was not available for inspection. 3^rd opposite party submitted that on repeated demands and requests for payment of defaulted installments, the complainant has surrendered the vehicle and this opposite party has sold the vehicle in public auction. It is well settled position that once vehicle is sold, complainant does not remain consumer for purpose of Consumer Protection Act.

In the above circumstances complaint dismissed without cost.  

          Pronounced in the open court on this the  30^th day of August  2017.

                                                                                      Sd/-                                                                                                                Shiny.P.R                                                                                

                       President

Sd/-

                      Suma.K.P

                       Member

                          Sd/-

          V.P.Anantha Narayanan

                        Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 series   –  Copy of registered lawyer notice sent by the complainant’s advocate to the 1^st & 2^nd

                             opposite parties

Ext.A2   –  Original Postal Receipt (2 No’s)

Ext.A3   -  Acknowledgement card signed by the 1^st opposite party               

Ext.A4   -  Reply notice sent by 2^nd opposite party through his counsel

Ext.A5     - Owners manual 

Exhibits marked on the side of Opposite parties

Ext.B1   - Copy of the power of attorney

Ext.B2   - Computer printout of ledger extract of complainant maintained in the 3^rd opposite party

                company

Ext.B3   - Original Loan Agreement between the complainant and 3^rd opposite party

Commission report

Ext.C1   - Interim Commission report Dated. 18.12.2013

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost    

Nil