Kerala

Thiruvananthapuram

CC/16/375

Venkidachalam P - Complainant(s)

Versus

Rajagopaln Nair - Opp.Party(s)

31 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM

 

PRESENT

 

               SRI.P.V.JAYARAJAN           : PRESIDENT

           SRI.VIJU.V.R                       : MEMBER

 

CC.NO.375/16 (Filed on : 01/08/2016)

ORDER DATED : 31/05/2023

COMPLAINANT

Venkitachalam.P

TC 20/1746, ARA -4

Sasthri Nagar West

Karamana.P.O, Thiruvananthapuram – 2

(Party in person)

VS

OPPOSITE PARTIES

1. Rajagopalan Nair,

(Sales Manager)

Kallingal Auto Mobiles,

Autorickshaw Showroom,

Near Palayam Market,

Palayam, Thiruvananthapuram

2. Bajaj Auto Finance Limited,

DCC, Collection, Kallingal Automobiles,

Auto rickshaw show room, Inside

Near Palayam Market,

Palayam, Thiruvananthapuram

(OP2 by Adv.P.Balakrishnan)

3. Area Manager / Manager (Services)

Bajaj Auto LTD,

4.  

Chiranalloor Road,

By Pass Junction, Edappally, Cochin

4. Bajaj Auto Limited,

Pune – Mumbai, Maharashtra,

Pune – 411035

5. Human Resource Manager,

Aji Kripal,

Kallingal Bajaj Automobiles, Nedumangad

9873.  

ORDER

SRI.P.V.JAYARAJAN      : PRESIDENT

1. This complaint filed under section 12 of Consumer Protection Act 1986 and stood over to this date for consideration and this Commission passed the following order.

2. This is a complaint filed by the complainant against the opposite parties alleging deficiency in service on the part of the opposite parties.

3.  The case of the complainant in short is that the complainant placed order for an auto rickshaw with the first opposite party by paying Rs.34,000/- (Rupees thirty four thousand only). According to the complainant, at the time of placing order for the auto rickshaw, the first opposite party informed the complainant that there is an offer of Rs.30,000/- (Rupees thirty thousand only) reduction from the total value of the vehicle. The finance was arranged by the second opposite party. The complainant repaid Rs.12,202/- (Rupees twelve thousand two hundred and two only) to the opposite parties in three installments. The complainant further alleges that the opposite parties has not provided the offer of Rs.30,000/- (Rupees thirty thousand only) while arranging the loan. Another allegation of the complainant is that the first opposite party claimed that the vehicle will get 40 km mileage. But the complainant submits that the average mileage available to the vehicle is only 22kms. The further allegation of the complainant is that the opposite party has supplied a 2013 model vehicle to the complainant claiming that the same is of 2015 model. Hence alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant approached this commission for redressing his grievances. After admitting the complaint notice was issued to the opposite parties. Initially there were only two opposite parties and subsequently additional opposite parties 3 to 5 were impleaded. The opposite parties 1 to 5 entered appearance. The opposite parties 1 to 4 filed written version denying the allegations raised by the complainant. The opposite party no.5 filed memo adopting the written version filed by the opposite party numbers 3 & 4. The first opposite party contended that he is only a dealer who is selling the vehicle after receiving full amount as cash or DD from the customer. According to the first opposite party the allegations raised by the complainant are false and the complaint regarding mileage etc are not within the purview of the dealer and hence the complaint is liable to be dismissed as against the first opposite party. The second opposite party filed written version denying the allegations raised by the complainant. According to the second opposite party, the second opposite party is only a financier and not at all liable and responsible for the condition of the vehicle. Hence the question of deficiency of service or unfair trade practice does not arise against second opposite party. According to the second opposite party there is no deficiency in service or unfair trade practice from the part of the second opposite party at any point of time and the second opposite party has acted only as per the right available through the agreement executed by the complainant with the second opposite party. Hence the second opposite party prays for dismissal of the complaint.

4. Opposite parties 3 to 5 also filed written version denying the allegations raised by the complainant. According to the opposite parties 3 to 5 the Hon’ble National Commission in a number of cases has categorically held that whenever any person alleges, manufacturing defects, the same has to be proved with an expert report or opinion. According to the opposite party the complainant has not taken any steps to prove any sort of manufacturing defect to the vehicle purchased by the complainant. The opposite parties 3 to 5 further submitted that the overall price of the vehicle purchased by the complainant is Rs.1,59,725/- (Rupees one lakh fifty nine thousand seven hundred and twenty five only) and the complainant has paid initial amount of Rs.34,000/- (Rupees thirty four thousand only) and for balance amount the vehicle was hypothecated with the second opposite party. The EMI to be paid by the complainant to the opposite party is Rs.39011/- (Rupees thirty nine thousand and eleven only) and the period of repayment was 42 months. Opposite parties 3 to 5 also denied the allegation with regard to the mileage as well as the year of manufacture raised by the complainant. According to the opposite parties 3 to 5 the vehicle purchased by the complainant is manufactured in the month of November 2015 and the same is evident from the documents produced by the complainant himself. Hence according to opposite parties 3 to 5 there is no cause of action for filing this complaint and hence the same is liable to be dismissed.

5.  The evidence in this case consists of PW1 and Exts.P1 to P4 from the side of the complainant. Second opposite party sworn an affidavit as DW1. Exts.D1 to D5 were marked from the side of the opposite parties.

6.  The issues to be considered in this case

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
2. Whether the complainant is entitled for the relief claimed in the complaint.
3. Order as to cost.

7. Heard both sides. Perused records, evidence and argument notes filed by the parties to the proceedings. To substantiate the case of the complainant the complainant himself sworn an affidavit as PW1 and Exts.P1 to P4 were marked. Ext.P1 series (3 in nos) is the cash receipt issued by first opposite party. Ext.P2 is the job card (601) dated 21/04/2015 issued by the first opposite party. Ext.P3 is the registration certificate of the vehicle purchased by the complainant. Ext.P4 series (3 in nos) are the receipts issued by the second opposite party to the complainant. On the other hand to disprove the allegations of the complainant the opposite parties produced Exts.D1 to D5. Ext.D1 is the very same document which is marked as Ext.P2 from the side of the complainant. Ext.D2 is the loan agreement between the complainant and the second opposite party. Ext.D3 is the account statement in respect of the loan issued to the complainant by second opposite party. Ext.D4 is the legal notice issued on behalf of the second opposite party to the complainant. Ext.D5 is the copy of the loan recall notice issued by the third opposite party to the complainant.

8. The main allegations raised by the complainant are as follows:

 The first opposite party has offered a reduction of Rs.30,000/- from the total value of the vehicle. Another allegation is in respect of low mileage and further allegation is with regard to the year of the manufacture. Regarding the alleged offer made by the first opposite party, except the complainant’s allegation there is no proof produced by the complainant to substantiate the fact that first opposite party has offered Rs.30,000/- (Rupees thirty thousand only) reduction from the total value of the vehicle. In the absence of any piece of evidence with regard to the above referred offer, we are unable to accept the contention of the complainant that there was an offer from the side of the first opposite party to the tune of Rs.30,000/- (Rupees thirty thousand only). Another allegation of the complainant regarding mileage is that the opposite parties have claimed 40 kms mileage but the vehicle is getting only average 22 km mileage. To prove that also the complainant has not taken any steps to ascertain the actual mileage of the vehicle. Hence in the absence of any evidence to show that the vehicle is having only 22 km mileage, we are unable to accept the contention of the complainant regarding low mileage. On the other hand, Ext.D1 job card which is also marked as Ext.P2 from the side of the complainant was shown to the complainant at the time of cross examination and the complainant has admitted the signature in Ext.D1. Ext.D1 contains an endorsement to the effect that “mileage checking done” before: 22 kms per liter then after: 32 kms per liter. I am satisfied fully”. Below that complainant’s signature is there and the signature was admitted by the complainant. But the complainant deposed that those endorsements were made subsequent to obtaining his signature in Ext.D1. It is pertinent to note that the very same job card is seen produced by the complainant and the same was marked as Ext.P2. Ext.P2 also contains the very same details. While producing Ext.P2 the complainant in the affidavit, it is stated that those endorsements were subsequently made by the mechanic of the first opposite party. The complainant further states that at the column in the customer’s signature is to be in Ext.D1, the complainant’s signature is not seen. It is to be noted that when allegation is made by a particular party it is the duty of the party who alleges a fact to prove that aspect. Here in this case the complainant has failed to substantiate the fact of low mileage by taking any steps to prove that aspect before this commission. Regarding the further allegation that the vehicle supplied to the complainant is of the year 2013 and not 2015 as promised by the opposite parties also found to be false because of the endorsement in Ext.P3 document produced by the complainant himself. Ext.P3 is the registration certificate of the vehicle in the name of the complainant. On perusal of Ext.P3 shows that the month of manufacture November and year of manufacture is 2015. Hence the allegation regarding the year of manufacture raised by the complainant is falsified by his own document ie Ext.P3 registration certificate. Though the complainant has filed affidavit and Ext.P1 to P4 documents, we find that those evidence adduced by the complainant is not sufficient to establish the case put forward by the complainant against the opposite parties. Moreover, admittedly the complainant is a defaulter in respect of the vehicle loan obtained by the complainant from the second opposite party. Even according to the averments in para 3 of the complaint the claim of the complainant is that he has paid only Rs.12, 202/- (Rupees twelve thousand two hundred and two only) in three installments towards repayment of loan obtained from the second opposite party. So also no allegation of deficiency in service or unfair trade practice is seen raised against the second opposite party by the complainant. As per the available evidence before this commission, we find that those evidence adduced by the complainant are not sufficient to get an order in favour of the complainant. Moreover, since 23/02/2022 the complainant is continuously absent and there was no representation. As the complainant was continuously absent, a notice was issued to the complainant to appear before this commission to further proceed with this complaint. The complainant has not appeared before this commission from 23/02/2022, when the case was posted for cross examination of OP2. As the complainant has not turned up for cross examination of OP2, the evidence of OP2 was closed on 24/06/2022. The above referred notice issued to the complainant was returned with endorsement intimations served – not claimed”. Hence it is to be treated as unclaimed. In view of the above discussions, we find that the complaint is to be dismissed for want of evidence.

                   In the result, the complaint is dismissed. There will be no order as to costs.

                   Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 31^st day of May 2023.

 

                                                                                          Sd/-

P.V.JAYARAJAN   : PRESIDENT

 

                                                                                           

 

                                                                                              Sd/-

VIJU.V.R     : MEMBER

 

 

Be/

 

 

INDEX

CC.NO.375/16

List of witness for the complainant

PW1                      - Venkitachalam.P

List of Exhibits for the complainant

Ext.P1 series (3 in nos)   - Copy of cash receipt issued by first opposite party.

Ext.P2                            - Job card (601) dated 21/04/2015 issued by the first    

                                        opposite party.

Ext.P3                            - Registration certificate of the vehicle purchased by the complainant.

Ext.P4 series (3 in nos)   - Receipts issued by the second opposite party to the complainant.

List of witness for the opposite parties

DW1                           - Anees.B.R

List of Exhibits for the opposite parties

Ext.D1                       - Document which is marked as Ext.P2 from the side of the complainant.

Ext.D2                       - loan agreement between the complainant and the second          

                                    opposite party.

Ext.D3                       - account statement in respect of the loan issued to the complainant by second opposite party.

Ext.D4                       - legal notice issued on behalf of the second opposite party to the complainant.

Ext.D5                       - copy of the loan recall notice issued by the third opposite party to the complainant.

 

Court Exhibits           - NIL

                                                                                                Sd/-

                                                                                         PRESIDENT