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/182/2012                                                                     

Fathima,                                                                           :      Complainant

W/o Musthafa,

Chavakkadan House,  Pullasseri (PO),

Mannarkkad Taluk.

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.Arunkumar)

3. The Manager,

    Hinduja Lyeland Financial Service Ltd,

    Opposite Rappadi, Kanakath Towers, Palakkad

O R D E R

By Smt.Shiny.P.R, President,

          The complainant has purchased an autorickshaw bearing registration No. KL-50A-8642) Engine No.AIF 0505670, chasis No. MDGDPGLX 3A 9P 02121 from the 1^st opposite party on 15.07.2011.  The 1^st opposite party has introduced this vehicle in Palakkad District saying that it is a new model autorickshaw  having so many peculiarities, like its more mileage than the other auto rickshaws now in the market, like that.  The 1^st opposite party has also assured that even though this vehicle is of a new company, it is a fit vehicle in all respects.  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, the complainant has purchased the vehicle from the 1^st opposite party. 

          From the beginning itself the vehicle was not in such a condition as the 1^st opposite party has stated to the complainant.  The frontage of the vehicle is cracked within a month itself.  Chasis and frontage are not in a usable condition its stumbolts are frequently failing and its shock absorber are not in a working conditions.  Now the vehicle is totally in such a condition that cannot be used in a public road safely.  When complainant approached the 1^st opposite party he has refused to repair the defects saying that its spare part are not supplying by the 2^nd opposite party.  These defects are the manufacturing defects occurred while producing these vehicles.  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.  Now the condition of the afore said vehicle is in such a condition that it cannot be used in a public road safely.  This is a public carrier vehicle used as taxi autorickshaw.  As it cannot be used in a public road, now there is no earnings from this vehicle.  So the complainant is not in a position to repay the loan amount also.  Complainant has to incur the expense of Rs.1,71,640/- (Rupees One Lakh seventy one thousand six hundred and forty rupees only) in total (including the road tax for three years and insurance of Rs.4,640/-(Rupees four thousand six hundred and forty only) for purchasing this vehicle only.  After that complainant has to spend some more money for its body work also.     The 1^st and 2^nd opposite parties are liable for loss sustained to the complainant.  Complainant has sent a registered lawyer notice to the 1^st and 2^nd opposite party on 02.06.2012, stating that to compensate by paying the afore said amount of Rs. 1,71,640/- (Rupees One Lakh seventy one thousand six hundred and forty rupees only) or to replace the vehicle by giving a new one in a good condition.  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, by the opposite parties.

Complaint was admitted and issued notices to opposite parties. 1^st and 2^nd Opposite parties entered appearance and filed their separate version. Notice to 3^rd opposite party was  served. But they were not appeared before the Forum. Hence  set ex-parte.

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

1^st Opposite party admitted the purchase of the autorickshaw. But all the other allegations in the complainant are denied.  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.  It is further submitted that the complainant had produced the vehicle for the periodical service for the 1^st four free services. She had not been attended for the 5^th and 6^th services for which the complainant should have produced the vehicle.  The opposite party had caused a reply notice to the notice send by the complainant stating the true facts.  The case against the 1^st opposite party is to be dismissed with the cost. 

            2^nd opposite party filed their version contending the following;- The complainant had purchased the vehicle on her 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 11.07.2011 and therefore the warranty period of the vehicle was already expired on 10.01.2012.  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.  The product of the 2^nd opposite party purchased by the complainant is running successfully in the market.  The complainant had purchased the above vehicle only after testing and considering all the above factors and at the time of the purchase, the complainant was completely satisfied with the performance of the vehicle.  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 contentions in the complaint that the alleged defects are manufacturing defects occurred at the time of producing the vehicle and are against the warranty and agreements, while selling the vehicle to the complainant are false and denied by the opposite party. 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.  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.  In order to justify his defaults in loan repayment, the complainant has filed the present false and fictitious complainant.  The complainant is not entitled for the reliefs claimed in the complaint.  Hence complaint is to be dismissed. 

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 opposite parties filed their separate chief affidavit. Ext. A1 to A4 marked from the side of the complainant.  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 opposite parties heard. 1^st and 2^nd Opposite parties admitted the purchase of autorikshaw bearing registration No KL-50A-8642) Engine No.AIF 0505670, chasis No. MDGDPGLX 3A 9P 02121. 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 and 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. After the purchase of the vehicle, complainant had produced the vehicle for the 1^st four periodical services without any complaint. She had not been attended for the 5^th and 6^th services.  1^st opposite party had done the periodical maintenance and services till fourth service 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.  According to 1^st and 2^nd opposite parties if there were 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 the above contentions raised by opposite parties are false. Expert Commissioner filed interim report stating that the vehicle was not available for inspection. It is the duty of the complainant to produce the vehicle before the expert commissioner for examination. It is a settled legal position that the complainant has to prove the manufacturing defect of the vehicle. In the present case complainant is failed to prove her case.

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 lawyer notices sent by the complainant’s advocate to the 1^st & 2^nd opposite

                             Parties dated. 02.06.2012

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

Ext.A3 series  -  Acknowledgement card signed by the 1^st & 2^nd opposite parties    

Ext.A4   -  1^st opposite party advocate sent a Reply to complainant’s advocate dated.26.07.2012

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

Nil

Commission report

Ext.C1   - Interim Commission report Dated. 18.12.2013

Witness examined on the side of opposite party

Nil

Cost

Nil