IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 30^th day of July, 2024

Present: Sri. Manulal V.S. President

  Smt. Bindhu R.  Member

Sri.K.M. Anto. Member

C C No. 278/2023 (Filed on 26.08.2023)

O R D E R

Sri. Manulal V.S. President

The complaint is filed under Section 35 of the Consumer Protection Act 2019.

On the advice of the opposite party on 17.05.2023, the complainant purchased a Ford Figo Aspire 2019 model car from the opposite party's showroom. The complainant had purchased the vehicle, believing the assurance given by the opposite party that the vehicle was in showroom condition and that there were no complaints about the vehicle. The complainant paid ₹ 4,70,000/- (Rupees four lakhs seventy thousand only) to the opposite party as the price of the car. Believing the assurance given by the opposite party, the complainant purchased the vehicle without a detailed inspection by removing the tyres of the vehicle.

According to the complainant, within a week from the date of purchase he found that the rear left tyre was torn and when the complainant approached the tyre shop, he was informed that it was a patched tyre. When he complained to the opposite party, the opposite party purchased another patched old tyre. After sometime during the plying of the car, the front tyre got punctured. Upon inspection, it was also found to be a patched tyre. It is further alleged in the complaint that within one week, the third tyre was also found to be in the same condition. The tyres fitted in the car was not the original tyre of the car and the size of the tyres fitted in the car was 185-60-15 instead of the tyre size of 195-55 -15.

Moreover the maintenance of the car after the sale was not done by the company. It is alleged in the complaint that the opposite party had sold the car to the complainant after removing the original tyres. Due to the deficiency in service and unfair trade practice on the part of the opposite party, the complainant was compelled to purchase four new tyres for the car. Hence, this complaint is filed by the complainant praying for an order to direct the opposite party to pay ₹ 35,000/- (Rupees thirty five thousand only) as compensation for the mental agony and financial loss caused to him due to the unfair trade practice and deficiency in service of the opposite party.

The opposite party appeared before the commission and filed version contenting as follows:

The complainant caused no contractual relationship with opposite party. The opposite party is not the manufacturer or the dealer of the complainant's Ford Figo Aspire car. It is a settled position of law that an employee of a company is not personally liable. At the time of the sale, Rajesh KR, who is shown as the opposite party, was only the sales executive and was not responsible for the claim of the complainant in this complaint.

It is submitted in the version that on 11.05.2023, the complainant and his friend came to the used car showroom of Kairali Ford and saw the various cars in the used car showroom. The complainant and his friend identified the 2019 model Ford Figo Aspire red color car bearing registration number  KL-17- T-3173. After a detailed inspection, they had taken a test drive of the said car on 11.05.2023. Thereafter being satisfied with the condition of the car complainant conveyed his desire to purchase this car on as is where is condition and accordingly, he had signed the order booking form and paid ₹ 5,000/- (Rupees five thousand) as advance. Before paying the advance, the complainant pointed out the scratches in the painting, repairing the scratched portion and polishing the car. Accordingly, the painting and polishing were done After that, the complainant paid the balance price of ₹ 4,65,000/- (Rupees four lakhs sixty five thousand only) and took delivery of the car on 17.05.2023 on as is where is condition. The car was delivered on as is condition is specifically stated in the customer declaration which is signed by the complainant.

At the time of the sale of the car, the car already covered 45221 KM and the complainant was the third owner of the vehicle. The allegation in the complaint that the tyres fitted in the car was not the original tyre of the car and the size of the tyres fitted in the car was 185-60-15 instead of the tyre size 195-55-15  is false. All the other allegations in the complaint are false and denied. There is no negligence deficiency in service or unfair trade practice on the part of the opposite party.

The complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A4. The opposite party filed the proof affidavit in lieu of the chief examination. There is no documentary evidence on the part of the opposite party.

In the light of complaint and evidence on record, we would like to consider the following points.

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
2. If so, what are the reliefs and costs?

Point Nos. 1&2

There is no dispute about the fact that the complainant purchased a Ford Figo Aspire  2019 model car from the opposite party on 17.05.2023 for an amount of ₹ 4,70,000/- (Rupees four lakhs seventy thousand only). The specific case of the complainant is that the three tyres of the car were patched, and within one week from the date of purchase the rear left tyre was torn, and when the complainant complained to the second office party, the opposite party purchased and gave another patched old tyre to him.

In order to prove his case, the complainant produced Exhibit A3 photographs of some tyres. However it does not prove that those tyres are fitted with the car at the time of the sale of the said car to the complainant. The complainant neither produced these tyres before this commission nor took any steps to get the disputed tyres inspected by an expert to prove his allegation. We cannot believe the complainant's contention that he purchased the car from the opposite party without inspecting the vehicle's condition and the tyres solely upon the assurance given by the opposite party. In the absence of any evidence to prove that the opposite party had sold the used car to the complainants with patched old tyres, we cannot hold that the opposite party has committed deficiency in service and unfair trade practice.

Moreover, it is pertinent to note that the opposite party is an employee of the Kairaly Ford.

In SGS India Ltd v. Dolphin International Ltd. Has held that "The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the complainant ".

Based on the above discussions, we are of the opinion that the complainant has failed to prove any unfair trade practice or deficiency on the part of the opposite party. In the result the complaint is dismissed.

Pronounced in the Open Commission on this the 30^th day of July, 2024

      Sri. Manulal V.S, President   Sd/-

    Smt. Bindhu R.  Member        Sd/-

    Sri. K.M.Anto. Member         Sd/-

 APPENDIX :

Exhibits from the side of the Complainant :

A1     -        Tax invoice No. PPLY/B2C1317-23/24 dated 05.08.2023

A2     -        Copy of the RC book.

A3     -        Copy of the photographs of the tyre.

A4     -        CD

Exhibits from the side of the Opposite Parties :

NIL

By Order,

     Sd/-

                                                                                                  Assistant Registrar