IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

                                                    C.C.No. 297/2016

PRESENT

      SMT. S.K.SREELA, B.A.L, LL.B, PRESIDENT

       SRI.  STANLY HAROLD, B.A.LL.B, MEMBER

                                                            ORDER DATED: 16.10.2023.

   BETWEEN

   Balachandran Pillai, 40 years,

   S/o Thankappan Pillai,

   Kizhakkekara Puthen Veedu,

   Sadanandapuram, Vettikkavala,

   Kottarakkara.                                                                              :           Complainant

   (By Adv.M.Varghese)

   AND

1.         The Proprietor,

   Manju Automobiles,Uliyanadu, Karikkom P.O.,

   Vettikkavala, Kottarakkara                                                    :      Opposite Parties

   (By Adv.B.S.Prasad Gandhi)

2^nd Addl. OP Bajaj Automobiles Ltd., Akrudi, Pune 411035.

                    (Addl.2^nd opposite party impleaded as per order in I.A 134/2019)

   (By Adv.B.G.Ajith)

               ORDER

Stanly Harold, B.A.LLB, Member

            This complaint is filed U/s 12 of the Consumer Protection Act 1986.           

The averments in the complaint in short are as follows:-

The complainant is an Auto rickshaw driver in Sadanandapuram Auto stand, Vettikkavala Village, Kottarakkara for the last so many years.  The 1^st opposite party is a dealer doing booking sales and service of auto rickshaw.  On 01.06.2016 the complainant booked a new vehicle from the showroom of the 1^st opposite party.  The complainant has paid an amount of Rs.1,69,000/- towards the price of the vehicle.  Thereafter the complainant has submitted the vehicle for registration and after registration he obtained the vehicle number as KL-24-L-8492.  In the registration certificate, the manufacturing year of the vehicle was mentioned as 2015.  In the circumstances the complainant has submitted order for a new vehicle on 01.06.2016.  But the 1^st opposite party has cheated him by giving a 9 month old vehicle in the place of a new vehicle.  In the registration certificate the model of the vehicle was noted as October 2015.  The complainant had to accept an old vehicle of 2015 model.  Since the vehicle is of the year 2015, the resale value of the same is badly affected considering the year of manufacture.  After obtaining the R.C book only cheating of the 1^st opposite party was revealed to the complainant.  Soon after the same he approached the 1^st opposite party and demanded damages for the loss sustained in accepting an old vehicle.  But the opposite party did not respond positively to the demand of the complainant.  The act of the opposite parties clearly amounts to deficiency in service and unfair trade practice.  The complainant has issued registered notice through his counsel and the 1^st opposite party accepted the notice neither send any reply nor has paid any compensation for the complainant.  The complainant is entitled to recover the amount mentioned in the complaint from the opposite parties and their assets.  Hence the complaint.

1^st opposite party filed version receiving the averments in the complaint and demanded that they are engaged in the sales of Auto rickshaw booking and sales.  The allegation raised by the complainant that the 1^st opposite party has given an old auto rickshaw to the complaint is false and frivolous.  The 2^nd opposite party further contends that the vehicle was purchased on the year 2016 and the registration shown in the R.C book is 2015 October.  As a result the auto rickshaw become 2015 model and one year old which badly affected the resale value of the vehicle.  The registration of the vehicle was done on 09.06.2016 and the registration certificate  “ a new vehicle” it was return as a new vehicle.  The 1^st opposite party further contended that the vehicle including the chassis was booked by the opposite party on 30.10.2015 bearing No.3400036026 before the Bajaj company.  Thereafter on 04.11.2015 the Bajaj company has delivered 14 chassis to the 1^st opposite party.  The complainant had visited the show room of the opposite party and had witnessed the building of the body and satisfied he had selected the chassis manufacturing date and he has booked the vehicle and the documentation has been done by the opposite party and the vehicle was delivered to the complainant.  It is further contended by the 2^nd opposite party that their manufacturing office is at Pune.  Whenever a booking is received for the vehicles the opposite party will take only an ordinary time to deliver the vehicle to the complainant.  There is no willful latches from the part of the 1^st opposite party.  The main contention of the opposite party is that whenever a vehicle is manufactured in the company that vehicle cannot be delivered forthwith to the complainant there will be an ordinary delay in delivering due to the transportation etc.  In the result while examining date and registration, date will be recorded as new vehicle.  There will be a delay from the manufacturing date till the delivery date it will ordinary take 9 months or more for  which as a dealer 1^st opposite party is not at all responsible for the same.  So the opposite party contends that the complaint is filed by the complainant on an experimental basis without any bonafides lacks the legality.  Hence it is only to be dismissed on liminie.

The 2^nd opposite party filed separate version contending that the complaint is not maintainable either in law or on facts.  All the allegation stated in the complaint is false and frivolous.  It is also contended that 2^nd opposite party is not liable to pay any damages to the complainant as alleged in the complaint.  All the business transaction is truly done by the 1^st opposite party.  The 2^nd opposite party is trusted No.1 manufacturer of three wheelers in the world.  There is no expiry date printed on the vehicle.  At the time of delivery good condition new vehicle was delivered to the complainant.  The complainant has not raised any complaints regarding the manufacturing or running condition of the vehicle.  It is to be noted that the complainant is using the vehicle in good running condition.  The allegation leveled against the opposite parties are only to tarnish the image of the company.  The vehicle was registered on 09.06.2016 as ‘new vehicle category’.  The chassis of the vehicle was booked on 30.10.2013 with the company as No.3400036026 on 04.11.2015.  The 2^nd opposite party delivered the said vehicle to the 1^st opposite party.  After the personal perusal of the vehicle the manufacturing date is choosen thereafter the complainant had booked the vehicle and the opposite party had given best sales and service to the complainant.  The allegation raised by the complainant that the said vehicle is one year old at the time of delivery is not at all true.  Only normal course of time was taken between manufacturing and delivery.  The 2^nd opposite party is not a necessary party to the complaint.  There is no privity of contract between the 2^nd opposite party with the complainant.  So in the interest of justice.  The complaint may be dismissed with the cost of the opposite parties.

            In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get any compensation?
3. Reliefs and costs?

Evidence on the side of the complainant consists of Ext.A1 to A7 documents and the oral evidence of PW1.Evidence on the 1^st opposite party consists of Ext.B1 series and oral evidence of DW1 and DW2.Complainant and opposite parties filed notes of argument.Heard the counsel for the complainant and 2^nd opposite party and perused the records.

Points No. 1 to 3

            For avoiding repetition of discussion of materials these three points are considered together.  There is no dispute with regard to the fact that the complainant on 01.06.2016 booked an auto rickshaw in the show room of 1^st opposite party by paying Rs.1,69,000/- and for the purpose of registration the complainant has produced the records of the vehicle and availed registration No. KL 24 L 8492.  It is also admitted fact that in the registration certificate the manufacturing date of the auto rickshaw is shown as October 2015.  It is an undisputed fact that complainant has booked the auto rickshaw on 01.06.2016 for a new auto rickshaw.  According to the complainant the opposite party has sold a 9 month old auto rickshaw deliberately. So the registration certificate notices 2016 and in true the auto rickshaw was a 2015 model vehicle.  Due to this, it has been termed as a 2015 model vehicle and the resale value of the vehicle has been dicterioted. 

            The evidence in this case consists of depositions of PW1, DW1 and DW2 which establishes the case of the complainant.  The complainant deposed based on the complaint in line.  Nothing can be brought out in cross examination discredit the evidence of complainant.  The complainant deposed that he was driving auto rickshaw for the past 20 years and has got an all round knowledge about the auto rickshaw and also deposed that he has come to know about the year of manufacture only after 6 months when he got the R.C. Book by post.  The version of the complainant to that effect is true and believable.  It is an admitted fact that the year and month of the manufacturing will be noted in the R.C. particulars.  Moreover an ordinary man cannot identify the year of manufacture by seeing a vehicle even if he is an experienced driver in the field of auto rickshaw.  In any other documents relating to the vehicle the month and year of manufacturing is not endorsed.  So the case of the complainant is that he came to know about the month and year of the manufacturing vehicle only after six months of getting the vehicle.  It is pertinent to note that the sale of the used vehicle, the year of the manufacture is one the most important factor.  The model of the vehicle is the prominent factor in resale of the vehicle.  So according to the complainant by selling a 9 month old vehicle the opposite party had acted on a deficient manner.  The loss of model by one year is to be considered as fatal one.  So it is crystal clear that the opposite parties have provided an old vehicle to the complainant after accepting the value of new vehicle.  However the opposite party was contend that the R.C.Book endorsed as a “New Vehicle” is not appropriate ground to evade from the liability of issuing a 9 month old vehicle to the complainant.  It is pertinent to note that any vehicle which is not a used vehicle the R.C Book will be endorsed as a new vehicle even if the vehicle is registered after a lapse of years from the date of manufacture.  So the opposite party has an obligation to provide a 2016 model vehicle itself to the complainant.  However it is a settled rule usual practice in the automobile industry that the dealers will sell the old vehicles for a lesser value than the market value of the same.  Concealing the model of the vehicle the opposite party has obtained the value of a brand new vehicle from the complainant.  It is pertinent to note that the opposite party has not informed the complainant there will be a time lag of 9 months for delivery of vehicle.  It is an admitted fact that the manufactures of the automobiles will introduce drastic changes both to interior, exterior of the vehicles every year as part of the global competition.  It will also be applicable to mechanical parts of the vehicle.  The most crucial point to be evaluated as a discussion is that the complainant is not an educated man, an illiterate auto rickshaw driver solely winning the bread from the vehicle, he may not be aware about the particulars of mechanical factors of the vehicle even if he has a vast experience as a driver.  So it is clearly brought out in evidence the crucial aspect was suppressed by the dealer/opposite party.  

            The opposite party in its version had contended the rule of Caveat Emptor to the complainant as an experienced driver “Let the buyer beware”. It is true that whenever a person purchase the product he has to ensure and make sure its quality.  But in this case an illiterate person who is earning income from the vehicle cannot go to that much extend.  It can be evident from the deposition of DW1 who admits that the vehicle was delivered in the month of June 2016 and also admitted that the manufacturing year of the vehicle issued to the complainant is 2015.  DW2 while in the box has deposed to the question put forward by the counsel for the complainant whether the manufacturing year is a relevant factor for resale of the vehicle(Q) “As a company official, I have no answer”(A ).  So it is clear that he has evaded from answering the question knowing very well that the year of manufacture has a crucial role in the resale of the vehicle of all types.  DW2 also admitted that the vehicle delivered to the complainant is 7.5 months older, to a suggested question from the part of the counsel for the complainant that the vehicle allotted to the complainant is a 9 month old one.  He has specifically and categorically admitted that the complainant has booked the vehicle on 01.06.2016 and admitted that they have accepted the price of the vehicle as on the date of booking of the same by the complainant.  So it is crystal clear that the opposite party had accepted the price of the 2016 model vehicle and delivered 2015 model one. 

Based on the uncontroverted testimony of the complainant and the supporting documents marked as Exhibits A1 to A7, the complainant has provided substantial evidence to support his case. The documents presented, along with the complainant's testimony, seem to justify the relief he is seeking.

After evaluating all the available materials on record, it is evident that the opposite party has indeed failed to fulfill their obligation in providing a 2016 model vehicle. This failure constitutes a deficiency in service, as the complainant had a legitimate expectation to receive a 2016 model auto rickshaw. The evidence presented supports the complainant's case and justifies his complaint. The nonfulfillment of the obligation by the opposite parties have caused the complainant mental agony, financial losses which further strengthens validity of his claims.

The evidence of the complainant clearly shows that there is deficiency in service and unfair trade practice. Therefore, the relief sought by the complainant is justified.

The opposite parties have to be held accountable for their actions and the harm caused to the complainant. The evidence presented strongly supports the complainant's claims, and it is only just and fair to grant him the relief he is seeking.

In the result, the complaint is hereby allowed and the opposite parties are jointly and severally directed to pay Rs.1,69,000/-being the price of auto rickshaw and compensation of Rs.10,000/- for the losses suffered with interest @ 12% per annum from 01.06.2016 and Rs.5,000/- as costs of the proceedings.  On receipt of the amount, the complainant shall return the vehicle in dispute to the opposite parties. The opposite parties are directed to comply with the above directions within 45 days from the date of receipt of the order failing which the complainant can initiate execution proceedings.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 16^th  day of  October 2023.                                                                                         

Sd/-

STANLY HAROLD

MEMBER

Sd/-

S.K.SREELA

PRESIDENT

 Forwarded/by Order                                                                                                           

                            Senior superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : Balachandran Pillai

Documents marked for the  complainant

Ext.A1            : Copy of R.C Book

Ext.A2            : Copy of R.C Book

Ext.A3            : Mathrubhoomi News

Ext.A4            : Copy of Legal Notice

Ext.A5            : Postal Receipt

Ext.A6            : Quotation Receipt

Ext.A7            : Copy of R.C Book

Witnesses Examined for the opposite party:-

DW1               : Sujaraj

DW2               : Manoj M.K.

Documents marked for opposite party:-

Ext.B1 series   :  Photographs of Auto rickshaw

Sd/-

PRESIDENT