BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 27/2003 Filed on 18.01.2003

Dated : 15.05.2009

Complainant:

G. Sasidharan, Mekke Vilakath Veedu, T.C 48/130, Ambalathara, Poonthura P.O, Thiruvananthapuram.

(By adv. A.S. Nazimudeen)

Opposite parties:

1. Proprietor/Partner, Deedi Automobiles, Kaimanam Junction, Thiruvananthapuram.

    

2. C.M. Mathew, Area Service Manager, Bajaj Auto Ltd., Krishna Kripa, 39/3584, KSN Menon Road, Kochi-16.

    

3. M/s Bajaj Auto Ltd., Akurdi, Pune 411 038 represented by its Managing Director.

(By adv. S. Ajith)

This O.P having been heard on 23.03.2009, the Forum on 15.05.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The complainant in this case is a physically handicapped person. He purchased a Bajaj RE-4 Stroke Auto rickshaw from the 1^st opposite party on 20.04.2001 for a price of Rs. 74,640.20 for which a loan amount of Rs. 73,500/- was paid by the Kerala State Physically Handicapped Person's Welfare Corporation. The 1^st opposite party is the dealer of 3^rd opposite party and the 2^nd opposite party is the authorized service centre. The complainant purchased the auto rickshaw for his livelihood. The complainant stated that the 1^st opposite party forced and instigated him to purchase the 4 stroke auto rickshaw. The 1^st opposite party misrepresented that the Bajaj company had stopped two stroke engine in the place of the new model and assured him of service for two years guarantee. The opposite parties represented falsely that the vehicle has got a fuel efficiency of 55 km per litre of petrol. Believing in all these representations the complainant purchased 4 stroke engine auto rickshaw. When the said vehicle was put into use it was found that the same was defective, substandard and unmerchantable in quality and performance from the very beginning. The fuel efficiency was found to be as low as 20 kms per litre. The auto rickshaw was purchased to make livelihood and the defective system was of no value to conduct the service as the same was defective. This has caused severe mental agony, irreparable injury and heavy loss to the complainant. The complainant further alleges that the auto rickshaw was manufactured using engine of a 4 stroke two wheeler integrating the body of the 3^rd opposite party's 2 stroke three wheeler and marketed the same without any necessary studies and modifications only to exploit the consumers without any scruples whatsoever and to do experimental studies on consumers. The system is having defect of fast wear and tear of engine parts because the engine is integrated from two wheelers. In this regard the complainant had raised complaint with the District Collector and the same was forwarded to the police station. The representatives of the company thereupon assured all repairs for the engine until the loan payment is complete. They have also proposed that the engine can be changed with a 2 Stroke engine after consulting with the 3^rd opposite party. But the opposite party did not act any further. The vehicle was handed over to the 1^st opposite party following a letter received from the 3^rd opposite party. The 1^st opposite party thereupon directed to approach them telling that the vehicle is ready after repair. The 1^st opposite party cannot rectify the inherent manufacturing defects of the 4-stroke engine. The opposite parties are liable to give a suitable replacement of the engine as the same was manufacturingly defective and unfit for the purpose for which it is purchased. Hence this complaint.

In this case the 1^st opposite party filed version on behalf of the 2^nd and 3^rd opposite parties also. In the version the opposite parties stated that the complainant has purchased the vehicle for commercial purpose. He is renting out the auto rickshaw purchased by him and as such he cannot be termed as a consumer. They further contended that the staff of the 1^st opposite party never instigated or forced the complainant to purchase the 4 stroke auto rickshaw. The 1^st opposite party never told the complainant or anyone else that the 3^rd opposite party is going to stop production of two stroke auto rickshaw. The opposite party never gave any assurance of two year service. Regarding mileage also the company did not give any assurance or advertisements. The allegations are baseless and is made with bad motives as an afterthought. The vehicle was not defective or substituted as alleged. The 4 stroke vehicle cannot be compared with 2 stroke vehicles and defects cannot be alleged. Further the auto rickshaw was not given 1 year guarantee or warranty. The auto rickshaws are given only warranty upto 5000 kms or 6 months whichever is earlier. The opposite parties have not given any assurance or 55 kms fuel efficiency. The complainant has purchased the vehicle on his own free will after fully satisfying the vehicle. The complainant has even took a test ride of the vehicle. The opposite parties stated that the vehicle is not an experimental one. It has got the approval of the concerned authorities under the Motor Vehicles Act, 1989. The wear and tear problems and cost of spare parts cannot be termed as a defect at all. There is no manufacturing defect in the vehicle. The complainant has used the vehicle excessively and the normal wear and tear of the vehicle would prove that the allegations are baseless. There is no basis for the claim made. There is no loss to the complainant. He is not entitled to the relief of the price of the vehicle since he has excessively used the same. Hence the opposite parties prayed for the dismissal of the complaint.

In this case the complainant has filed proof affidavit and he has produced 11 documents to prove his complaint. The opposite parties cross examined him. The opposite parties have no oral or documentary evidence. The commission report was marked as Ext. C1.

Points that would arise for consideration are:-

1. Whether there is unfair trade practice and deficiency in service from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- The complainant alleges that, though the complainant approached the 1^st opposite party for a 2 stroke auto rickshaw, the complainant was misrepresented by the 1^st opposite party that the production of 2 stroke auto had been stopped and the stock available was only 4 stroke auto rickshaw and its maintenance cost is less and is having better fuel efficiency than that of 2 stroke engine. In the above circumstances the complainant was forced to purchase the 4 stroke auto due to the misrepresentation and compulsion of the 1^st opposite party. When the 4 stroke auto was put in use it was found to be defective, substandard in quality. The fuel efficiency was found to be less than 20 km per litre. To prove his contentions the complainant has filed proof affidavit and produced 11 documents. Ext. P1 is the copy of invoice dated 16.04.2001. As per this document the price of the auto rickshaw is Rs. 74,640.20. Exts. P2 and P3 are the documents showing that the purchase of the auto rickshaw was by the loan sanctioned by the Kerala State Handicapped Person's Welfare Corporation Ltd. Exts. P4 and P5 are the copies of complaint filed by the complainant before the District Collector and Chief Minister. Ext. P6 is the copy of letter issued by the 1^st opposite party to the complainant requesting him to bring the vehicle to their workshop for servicing and to examine the vehicle for rectification of complaints if any under payment basis. Ext. P7 is the copy of letter issued by the 1^st opposite party to the complainant on 21.01.2003 informing him that the auto rickshaw was serviced and repaired and to take delivery of the vehicle and maintain the vehicle in good condition. Ext. P8 is the owners manual and service coupons. As per this document the manufacturer assures that they will replace or repair at their authorized workshop/s free of charge within a period of 120 days from the date of sale of the vehicle to the first owner or until the vehicle has been driven for 5500 kms of run whichever event shall occur first such part or parts thereof as may be found, on examination to have manufacturing defect. In this case the complainant raised the allegations after the warranty period. Ext. P9 is the copy of intimation issued by the Kerala State Physically Handicapped Persons' Welfare Corporation that to remit the balance loan amount of Rs. 40335/-. Ext. P10 is the copy of auto driving licence of the complainant. Ext. P11 is the report issued by the R.T.O regarding the registration of 4 stroke Bajaj RE auto rickshaw. From this document it is seen that from 2001 onwards to 2006 there was no registration of 4 Stroke Bajaj RE auto rickshaw.

In this case there is no evidence from the side of opposite parties. In this case as per the application submitted by the complainant this Forum appointed Mr. Anuraj. D as the commissioner. He has filed the report and the report was marked as Ext. C1. The complainant and opposite parties have filed objection to the report, but nobody has cited the commissioner as a witness in this Forum. In the report the commissioner stated that the average fuel efficiency of 4 stroke auto rickshaw is 25 kms. per litre which is normal. The commissioner reported that the engine of the three wheeler Bajaj RE 4 Stroke auto rickshaw is not adapted from a 4 stroke two wheeler and it is clear that the engine is designed for the purpose of three wheeler auto rickshaw. In his report the commissioner stated that the maintenance cost of 4 stroke auto rickshaw is higher than in 2 stroke engine, but the rate of wear and tear is lower than compared with the 2 stroke engine. The commissioner also stated that the spare parts of 4 stroke engine are available in all the opposite parties outlets. The commissioner stated that the maintenance cost of 4 stroke engine is more than 2 stroke engine. So the consumers opted for the 2 stroke auto rickshaw. In the conclusion para the commissioner stated that “though the vehicle 4 stroke auto rickshaw is of a quality make, the maintenance cost is greater than that of the 2 stroke. The 2 stroke auto rickshaw gives almost same mileage compared to the 4 stroke. The maintenance cost is also less for 2 stroke. Proper maintenance is the main aspect for the life of the vehicle. Periodic replacement of spare parts is greater in 4 stroke than 2 stroke. In 4 stroke, lubrication of piston is by the gear oil. So as the rings get weaker and weaker excessive oil will burn inside the cylinder. But in the 2 strokes the lubrication is by adding the oil along with petrol. It can be said that as the 4 stroke gets older the oil consumption increases. The difference in the prices of the spares shows a vast difference. So it is quite natural that the consumer may opt for the 2 stroke auto rickshaw”.

In this case the complainant purchased the vehicle on 20.04.2001. He has filed the complaint in February 2003, i.e, 22 months after the date of purchase. The main allegation of the complainant is that the 1^st opposite party compelled him to purchase the 4 stroke engine auto rickshaw by misrepresentation. If the matter was so the complainant should have filed the complaint immediately after the purchase. But the complainant filed this complaint after about 2 years from the date of purchase and moreover the complainant has admitted that he had used the vehicle for a distance of 20000 kms within that period though the expert commissioner reports in Ext. C1 that the vehicle has covered 40746.5 km. In short he used the vehicle in its maximum level within 20 months. And also the complainant has failed to prove that the opposite party has compelled him to purchase this vehicle. And also from the commissioner's report we have found that the allegations raised by the complainant regarding the defect of the 4 stroke engine auto rickshaw are all false and baseless. There is no manufacturing defect. The commissioner clearly stated that the engine of the 4 stroke auto rickshaw is not adapted from 4 stroke two wheeler. It is true that Ext. P11 document shows that From 2001 onwards there is no registration of 4 stroke Bajaj RE auto rickshaw. But it is not a ground for allowing this petition. In this case the vehicle in dispute has no manufacturing defect or any other reason for not using the vehicle. The complainant can use the vehicle for his livelihood. As per Ext. P7 document the 1^st opposite party informed the complainant to take the delivery of the vehicle. But the complainant was not ready to take the vehicle. In this case from the evidence and pleadings and argument of both the parties we have concluded that there is no unfair trade practice or deficiency in service from the side of opposite parties. In this case the complainant has failed to establish his case. And also from the above discussions we are of the view that the complaint lacks bonafide. He has no cause of action for filing this case. The claim of the complainant that to replace the vehicle or refund the amount after using the vehicle for about two years in its maximum level is not justifiable. Hence the complaint is dismissed. No cost. The complainant is at liberty to take delivery of the vehicle from the opposite parties.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th May 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 27/2003

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - G. Sasidharan

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of invoice dated 16.04.2001for Rs. 74640/- issued by

the 1^st opposite party to the complainant.

P2 - Copy of letter dated 06.01.2001 issued to the complainant

by the M.D, Kerala State Handicapped Persons Welfare

Corporation Ltd.

P3 - Copy of letter dated 20.02.2001 addressed to M/s Deedi

Automobiles.

P4 - Copy of petition dated 05.12.2002 addressed to District

Collector, Tvpm.

P5 - Copy of petition dated 01.01.2003 addressed to the Joint

Secretary to Public Grievances Redressal Cell of the Chief

Minister by the complainant.

P6 - Letter dated 10.12.2002 received from M/s Deedi

Automobiles.

P7 - Letter dated 10.12.2002 received from M/s Deedi

Automobiles.

P8 - Service manual issued by Deedi Automobiles.

P9 - Copy of notice dated 24.05.2005 issued to the complainant

by the M.D, Kerala State Physically Handicapped Persons

Welfare Corporation.

P10 - Photocopy of Driving Licence No. T 892/84 dated

15.02.1984.

P11 - Copy of letter in original dated 3.01.2007 from

RTO,Tvpm.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT

C1 - Commission Report

PRESIDENT