DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 30th 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/181/12
R.Ganesh,
S/o Ramakrishnan, : Complainant
Veembath House,
Thekkummukkiyoor, Kottathara PO,
Agali, Mannarkkad Taluk,
Palakkad.
(Adv.P.R.Jayakrishnan)
Vs
1. Proprietor, Surya Motors, : Opposite parties
Melamuri, Palakkad PO
(M.P.Rajes)
2. Managing Director,
Kumar Motors Pvt.Ltd,
Gat No.316, Kasaramboli,
Ambedwet PO, Pirangat, Mulshi,
Pune 412 111.
(Adv.K.B.Arunkumar)
3. Manager,
Mahindra & Mahindra Financial Service Ltd,
2nd 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 autorickshaw (Reg No. KL-50A-8574) Engine No.AIF 050568, chasis No. MDGDPGLX 4A 9P 02122 from the 1st opposite party on 11.7.2011. The 1st opposite party has introduced the vehicle in Palakkad District saying that it is a new model autorickshaw having so many peculiarities. It has more mileage than the other auto rickshaws available in the market. And also assured that mechanically it is more strong and efficient than the other similar vehicles. Believing the version of the 1st opposite party, the complainant has purchased the vehicle.
Complainant submitted that the frontage of the vehicle was cracked within a month itself. Chasis and frontage were not in a usable condition, its stump bolts were frequently failing and its shock absorber were not in a working conditions. When complainant approached the 1st opposite party they refused to repair the defects by saying that spare parts were not supplied by the 2nd opposite party.
Complainant further submitted that the defects shown in the vehicle are the manufacturing defects. Complainant has purchased the vehicle by availing loan from 3rd opposite party bank. The vehicle purchased for using it as a taxi for livelihood. As the vehicle could not be used in public road safely, they have not received any earnings from this vehicle. So he could not repay the loan properly. Complainant has spent a total amount of 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/-) for purchasing this vehicle. According to complainant 1st and 2nd opposite parties are liable for loss sustained to the complainant. Complainant has sent a registered lawyer notice to the 1st and 2nd opposite party to refund the amount spent for the purchase of the vehicle or to replace the vehicle by a new one with good condition. The 1st opposite party has received the notice and sent a reply stating that the company alone is responsible for the loss sustained to the complainant. Hence the complainant prays for order directing 1st and 2nd 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 new one with good condition to the complainant.
Complaint was admitted and notices were issued to opposite parties. All the opposite parties entered appearance and filed their separate version.
1st opposite parties filed their version contending the following:-
1st 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 1st opposite party for the periodical maintenance and services and 1st opposite party had done the periodical maintenance and services frequently in satisfactory manner and that the complainant herein 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. Hence the case against the 1st opposite party is to be dismissed with the cost.
2nd 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. 2nd 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 the records the vehicle was purchased by the complainant on 05.07.2011 not on 11.07.2011. Hence the warranty period of the vehicle was already expired on 04.01.2012. 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 1st opposite party at the time of periodic service. The contention of the complainant that when he had approached the 1st opposite party to repair the alleged defects, the 1st opposite party had refused to repair stating that this opposite party is not supplying the spare parts incorrect and denied by the opposite party. This opposite party had already supplied necessary spare parts to the 1st opposite party. The product of the 2nd opposite party purchased by the complainant is running successfully in the market. The said vehicle is sturdy, durable and highly efficient. 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 2nd 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. It is specifically submitted that if the vehicle has any problem, the same caused entirely due to the rash driving or prevailing road condition and certainly not due to any manufacturing defects as alleged in the complaint. 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. 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. This opposite party is not liable to compensate the complainant in any manner. The complaint is devoid of any merits and therefore the same is to be dismissed.
3rd opposite party filed the version contending the following:-
The complainant for purchasing “autorickshaw” named Kumar 3 Wheeler Parinda bearing registration no. KL 50 A 8574 availed a loan from this opposite party by entering into an agreement with the opposite party. The amount financed was Rs.1,21,134/- (Rupees One lakh twenty one thousand one hundred and thirty four only) and the finance charges were Rs.46,806/- (Rupees forty six thousand eight hundred and six only). Thus agreement value was Rs.1,67,940/- (Rupees one lakh sixty seven thousand nine hundred and forty only). The same was agreed to be repaid on 36 monthly installments of Rs.4,665/- (Rupees four thousand six hundred sixty five only). The first installment was agreed to be paid on the 8.7.2011 and every other installments on the 5th day of every succeeding English calendar month and the date of the last installment was on 07.07.2014. The complainant has paid an amount of Rs.83,970/- (Rupees eighty three thousand nine hundred and seventhy only) towards the loan account as on 25.07.2013. The complainant is liable to pay an amount of Rs. 83,970/- (Rupees Eighty three thousand nine hundred and seventy only) excluding contracted rate of default interest, cheque return, charges – closure charges etc. 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. The vehicle has been hypothecated with this opposite party. There is no deficiency of service from our party towards the complainant and hence unnecessary party to the complainant. Hence it is humbly prayed that the complaint against to the opposite party may 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 report. Opposite parties 1 and 2 filed objection to commissioner report. 2nd opposite party IA 68/2014 filed to set aside the commission report. After the cross examination of the commissioner IA was partly allowed and report was remitted to the same commissioner to inspect the vehicle once more and to file a detailed report clarifying the defects and also nothing the additional points if any provided by both parties. But the 2nd opposite party did not take any steps to clarify the defects as alleged by them.1st and 2nd opposite parties filed applications seeking permission to cross examine the complainant. But the 2nd opposite party not appeared for the cross examination of the complainant.
Complainant filed chief affidavit and documents which were marked as Exts. A1 to A5. 1st and 3rd opposite parties filed their respective chief affidavit. Exts B1 to B3 were marked from the side of 3rd opposite party. Complainant was cross examined by 1st opposite party as PW1. Commission report was marked as Ext C1.
Commissioner has inspected the same model vehicles having similar defects as per the order of the Forum in CC 175/12, 176/12,178/12, 179/12 and181/12 and he has filed separate report. But he was examined as CW1 in CC175/12 only. Hence in the present case true copy of deposition of commissioner marked as Ext X1.
The following issues are considered.
- Whether there is any deficiency of service from the part of opposite parties?
- If so, what is the remedy?
Issues 1&2
Heard complainant and 1st & 3rd opposite parties. According to complainant the frontage of the vehicle is cracked within a month itself, chasis and frontage are not in a usable condition, its stump bolts are frequently failing and its shock absorber are not in a working conditions. 2nd opposite party on the other hand has contended that complaints in respect of the vehicle are only due to the rough use of the vehicle by the complainant. Though 2nd opposite party has pleaded so in the version and affidavit no evidence is forthcoming on the part of 2nd opposite party to prove the same. Expert commissioner has filed commission report C1 with regard to the defects in the vehicle in dispute. After filing the commission report the 2nd opposite party has filed IA 68/2014 to set aside the commission report. In the interest of justice that application was partly allowed and directed 2nd opposite party to take steps to inspect the vehicle by the same commissioner once more and to file detailed report clarifying the defects and also nothing the additional points if any provided by both parties. But the 2nd opposite party did not take any steps until the case posted for orders.
In Ext C1, Commissioner reported the present condition of the vehicle. The owner is having no complaints regarding the performance of the engine, clutch or the functioning of the brake system. There was frequent failure of wheel side milling end, axle rubber boot and cone set. Full wiring kit is replaced one due to electrical failure. This vehicle is suffering tight handle bar, no riding comfort, low pulling power and difficulty in balancing the vehicle while driving.
He also reported that the vehicle has some mechanical problems and manufacturing defects. The vehicle is suffering from cone set (star-washer and cone nut) failure. Front shock absorber fails frequently and the cost of replacement is more compared to other auto rickshaw manufacturers of the same category. Rear axle drive shaft milling –end and its female-milling wheel side-yoke fails prematurely and the spare is not available locality. Gearbox stump-bolt fails frequently. There is some serious design fault in its front wheel orientation and assembly and there is great difficulty in keeping the ride balance and steering control. Riding this vehicle with full passengers is a herculean task for the driver and risky for the passengers through a terrain which exists in Attappadi. Handlebar rotation-stopper fails frequently and this leads to breakage of the windshield and subsequent monetary and idle-time losses to the owners of the vehicle. Clutch cable of this vehicle is special (considering the shape and length) and is not easily available. Brake liner is not easily available in the market. Drive axle boot fails frequently and this may be due to the improper placement of drive shaft and rear wheel.
As the 2nd opposite party did not take any steps as per the order in IA 68/2014, we are constraint to accept the findings of the commissioner. Commissioner clearly established that the vehicle has some manufacturing defects and the parts of the vehicles are not available in the market. Though opposite parties have argued that spare parts are readily available, they have not produced any piece of evidence to show that still the spare parts are readily available in the market. It is the bounden duty of the 2nd opposite party manufacturer to assure the availability of the spare parts of new model vehicle in the market for their customers. From this we are of the view that 2nd opposite party committed deficiency in service.
Ext A5 reveals that the vehicle was purchased on 05.07.2011. Complaint was filed on 27.9.2012. But the commissioner was inspected the property on 02.06.2013. As per report it is seen that this vehicle was running on road 28669 km. Even though the vehicle has manufacturing defects as reported by the commissioner, the complainant used the vehicle for 16 months and the vehicle was running 28669 km on road. Complainant did not adduce any evidence to show that the defects in the vehicle were occurred within warranty period i.e within 04.01.2012. Therefore we cannot direct 2nd opposite party to replace the vehicle or refund the cost of the vehicle. Complainant who has purchased the vehicle for their own livelihood by availing loan from the financial institutions suffered a lot both mentally and financially. Hence the manufacturer 2nd opposite party is liable to pay compensation for their deficiency in service by selling defective vehicle and for not supplying spare parts in the market for the new model vehicle and the mental agony caused to the complainant. But, from the available evidence we cannot attribute deficiency in service on the part of 1st opposite party. 3rd opposite party is the financier and no reliefs were sought from them by the complainant. Hence 1st and 3rd opposite parties are exonerated from the liability.
Under the above circumstances we partly allowed the complaint. 2nd opposite party is directed to pay an amount of Rs.1,00,000/- (Rupees one lakh only) as compensation for mental agony and Rs.5,000/- (Rupees five thousand only) as cost of proceedings to complainant.
The afore said amount shall be paid within one month from the date of receipt of this order failing which complainant will be entitled to realize interest at the rate of 9% p.a from the date of order till realization.
Pronounced in the open court on this the 30th 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.A1series - Copy of the lawyer notice sent by complainant’s advocate to the 1st &
2nd opposite parties
Ext.A2 series - Original Postal Receipts
Ext.A3 - Acknowledgement card signed by the 1st opposite party
Ext.A4 series – 1st opposite party advocate sent a reply to complainant’s advocate
Dated. 26.07.2012
Ext.A5 - Owners Mannual of the vehicle
Ext X1 –True copy of deposition of CW1 in CC-175/12
Exhibits marked on the side of Opposite parties
Ext.B1 - Power of Attorney
Ext.B2 - Customer statement of Accounts Report dated. 25.07.2013
Ext.B3 - Loan Agreement No.1628381
Witness examined on the side of complainant
PW1 - R.Ganesh
Witness examined on the side of opposite party
Nil
Commission Report
Ext.C1 - Commissioner ‘s Report dated.18.12.2013
Cost
Rs.5,000/-
