BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

              Sri G.Sreenivas Rao, M.Sc., B.Ed.,LL.B.,PGADR (NALSAR),Member

Wednesday, the 20^th day of March, 2013

CC.No. 16 of 2012

Between:

Guda Bharath Kumar S/o Srinivas,

Aged: Major, Occ: Auto Driver

R/o Shankarampet  village and Mandal

District Medak – 502 381.

     …. Complainant

And

1. Ram Prasad S/o Not known to complainant,

Aged: Major, Sales Man, Ramcor Marketing Pvt. Ltd.,

R/o 5-1-113/1, Sanjeeva Nagar, Opp. Bharat Gas,

Sangareddy town, Dist. Medak.

2. M/s Ramcor Marketing Pvt. Ltd.,

through its Dealer, Brigadair Sayeed Road, Tabund,

Piaggio Centre, Secunderabad.

3. M/s Piaggio Vehicles Pvt. Ltd.,

Through its manufacturing Manager, 101 B/102,

Phoenix, Bund Garden Road, Opp. Residency club,

Pune, M.S.  -411 001.

4. M/s Indusind Bank Limited through its Manager,

Plot No. 1070, Roshini Complex, Pothreddipally,

X-Road, Mandal Sangareddy, Dist. Medak.

                                                                                          … Opposite parties.

                This case came up for final hearing before us on 06.03.2013 in the presence of Sri A.M. Janardhan Goud, Advocate for the complainant, Sri A. Indrasena Reddy, Advocate for opposite party No. 1, Sri M/s Rakesh Sanghi & Associates, Advocate for opposite party No. 2, Sri G. Ananda Rao, advocate for opposite party No. 3 and Sri Md. Zulfikar, advocate for opposite party No. 4, on perusing the record and having stood over for consideration till this day, this forum delivered the following:

O R D E R

(Per se G. Sreenivas Rao, Member)

                   This complaint is filed under Section 12 of the Consumer Protection Act, 1986 to direct the opposite party No. 1 to pay back Rs. 58680/-, repaired amount seven installment paid with interest and Rs. 1,00,000/- as compensation for mental agony from opposite party No. 1 to 3 along with Rs. 50,000/- as damages and also direct the opposite party No. 1 to take back the vehicle and repay the remaining installments to opposite party No. 4 and costs may also be awarded.

2.       The brief averments of the complaint is that the complainant purchased four wheeler trolley Auto of Piaggio make from opposite party No. 2 by paying Rs. 58,680/- and the remaining amount of Rs. 1,38,000/- was financed by opposite party No. 4. The vehicle was registered as AP 23 Y 3238 and it was insured by IFFCO-TOKIOA General Insurance Company. Thereafter when the vehicle started giving troubles, the complainant approached opposite party No. 1 who executed an under taking stating that if the vehicle is giving any trouble within guarantee period he will return the amount of Rs. 58,680/- and take back the vehicle. At the behest of opposite party No. 1 the complainant got the repairs done to the vehicle four times but still it is not in a condition to ply by the complainant and the same is kept idle in workshop. The opposite parties No. 4 has been insisting to pay the installments and threatened to seize the vehicle. The complainant purchased the said vehicle on 01.03.2011 and got it repaired on 04.06.2011, 13.06.2011, 27.06.2011 and 25.07.2011 and still the vehicle is kept idle and lastly the complainant got issued the notice to opposite party No. 1 on 02.01.2012 and it was returned as unserved. This negligent attitude of opposite parties constitutes deficiency in service. Hence they are liable to pay exemplary damages, compensation and costs by returning his amount of Rs. 58,680/- with interest and take back his vehicle by the opposite parties.

2. a).         The opposite party No.2 filed the counter stating that the independent & unilateral acts of a sales man (opposite party No. 1) can never bind the second opposite party herein. It is also submitted that the first opposite party No. 1/ Sales man is neither authorized  nor permitted to give any assurance or commitment to the purchaser of the vehicle, inaddition to one year warranty and 3 servicing provided by the manufacturer (opposite party No. 3) and the retailer (opposite party No. 2). The job cards filed by the complainant itself disclose that there was no trouble detected either in engine of the vehicle or in functioning of the vehicle. Further more, it is stated that the entire complaint is totally silent regarding nature of the defect in the vehicle. The opposite party No. 2 also emphasized that any inherent manufacture defect in the vehicle or in any moving part of the vehicle or any inherent defect in the engine would alone be liable to be classified as the manufacturing defect, and any other complaint in the functioning of the vehicle on account of wear & tear could not be attributed to the manufacturer and would be attributed to the driver of the vehicle alone and more over the vehicle was being used for commercial purpose as a cargo vehicle by the complainant. It is therefore submitted that the present complaint is speculative and vexatious and filed with a vain hope of escaping from paying the loan amount to the opposite party No. 4 and also to extract some money from opposite party No. 2 & 3 by inventing story of a defective vehicle. He, therefore prayed to dismiss this complaint by awarding exemplary costs.

b)        The opposite party No. 3 in his written version submits that the opposite party No. 1 is not authorized to execute any agreement on behalf of opposite parties No. 2 & 3. The agreement dated 04.11.2011 was fabricated and created in collusion with opposite party No. 1 only for the purpose of filing this complaint. He also submitted that the loan agreement excuted by the complainant with opposite party No. 4 is a separate transaction.  Therefore the opposite party No. 4 is not a proper party in the present complaint. In the event of default the opposite party No. 4 has the right & authority to demand for the dues and repossess the vehicle. This opposite party also denied the allegation of loan payment to the opposite party No. 1 and all the receipts for the installments filed by the complainant show that the complainant himself directly paid to the opposite party No. 2 and the other receipts for the alleged repairs, establish that the vehicle was handled by third parties thereby the complainant has violated the terms and conditions of warranty in frequently handing over the vehicle for its repairs to a third party and the items mentioned in these receipts not covered under the warranty and it was provided in warranty manual and only due to negligent driving of the complainant without having valid driving license might be the cause for such repairs. The opposite party No. 3 emphasized that in the complaint there is no whisper about manufacturing defect in the vehicle except an averment in general and that the vehicle was giving trouble and there is no specific information about the manufactured defect. The complainant also deleted the warranty card and booklet mentioned as item No. 2 in the evidence / list of documents filed by him and there is no evidence to say that the vehicle was off the road as alleged by the complainant. The complainant is not coming forward with specific allegation as to the exact defect in the subject vehicle by producing credible evidence.   The opposite party also made a reference to the judgment of the Hon’ble Supreme Court in “Maruthi Udyog Limited Vs. Sushil Kumar Gabgotra” reported in II 2006 CPJ (SC), wherein the Apex Court held that in case of a vehicle sold with defective parts, the vehicle as a whole cannot be directed to be replaced and those parts which are found to be defective can only be directed to be replaced. He also made it clear that the opposite party No. 2 can rectify or replace any part with prior approval of the opposite party No. 3 and this is only the Job of the opposite party No. 2 in respect of vehicle sold. The opposite party No. 3 also highlighted that the vehicle was purchased for commercial purpose and it is not within the definition of the word “Consumer” as defined under section 2(d) of the Consumer Protection Act and there is no pleading or evidence to show that the complainant purchased the vehicle exclusively for the purpose of earning his livelihood by way of self employment. He also pointed out at the insurance document dated 30.03.2011 issued by the IFFCO-TOKIO General Insurance Company Limited, which clearly shows that “Commercial Vehicle Certificate of Insurance Cum Schedule”, on the face of the document itself. The opposite party No. 3 also submits that this Forum has no jurisdiction for the reason that the opposite parties No. 1 & 2 have no branch office within the territorial jurisdiction of this Forum. He therefore prays to dismiss this complaint with exemplary costs.

c)               The opposite party Nos. 1 and 4 did not choose to file counters.

3.          The complainant filed his evidence affidavit and marked the documents as Ex. A1 to A10 and the opposite party No. 3 filed documentary evidence and got marked the Exs.B1 to B6. The opposite party No. 2 and 3 filed their written arguments and advanced oral arguments also. The opposite party No. 1 and 4 just filed vakalats only.

4.           Now the point for consideration is,  Whether the opposite parties caused any deficiency in service? If so, to what relief?

Point:

5.               The complainant has purchased four wheeler trolley Auto of Piaggio from opposite party No. 2 by paying Rs. 58,680/- and the remaining amount of Rs. 1,38,000/- was obtained from opposite party No. 4 as loan. The opposite party No. 1 allegedly executed an undertaking (Ex. A3) that if the vehicle gives any trouble within the one year warrantee period, the opposite party No. 1 will return the amount of Rs. 58,680/- and take back the vehicle from complainant. The said vehicle said to have started giving trouble frequently and as per the instruction from opposite party No. 1, the complainant allegedly got it repaired four times (Ex. A2 – Five repair bills). To support his case he filed receipts of the transaction as Ex.A1 (3 receipts) and loan papers as Ex. A4. He also paid (5) installments during the period from 25.04.2011 to 29.11.2011 which is evident from the Ex. A5, The Ex.A6 being the fitness certificate and Ex. A7 is the Registration certificate of the vehicle, Ex.A8 is the insurance policy and Ex. A9 being the office copy of the notice dated 02.01.2012 and its postal receipt along with acknowledgement marked as Ex. A10.

6.            The opposite parties No. 2 and 3 have admitted that the said vehicle was purchased by the complainant but emphasized that they had not authorized the opposite party No. 1 to execute the agreement dated 11.04.2011 which seems to be a fabricated document. To prove their stand, they filed evidence consisting of Ex.B1 being the authorization letter, Ex. B2 is the sales invoice, Ex. B3 is the job card dated 25.05.2011 showing first service, similarly Ex. B4 is the job card dated 23.09.2011 showing as general checkup and the Ex.B5 are the two receipts for minor parts and labour charges. The Ex. B6 is the warranty manual of the vehicle.

7.                On serious perusal of the evidence filed by both the parties it is observed that the complainant failed to file the job cards for the repairs and the warranty terms & conditions, this leads to suppression of material and it appears that the complainant did not come to the Forum with clean hands. Whereas under the ‘Limitation of Warranty’, it is clearly mentioned under para (6) “this warranty is the entire written warranty given by PVPL for their ape mini and no other person, including the dealer or its or his agent or employee in authorized to extend or enlarge this warranty”. Further the complainant did not choose to examine the attesting witness to the alleged agreement under Ex. A3. Thus this document is not duly proved. In such circumstances the Ex.A3 which the agreement said to have executed by opposite party No. 1 / salesman on behalf of the company, becomes null & void.

8.             Similarly “The warranty services facilities can be availed at any place in India where there is an authorized dealer / service centre”. Whereas the exhibit A2 are the receipts of repairs done locally at Shankarampet village which is not an authorized service centre of the company/opposite party No. 3

9.                Moreover opposite party No. 4 is a banker who financed the vehicle under an agreement of contract. He is no way connected to the instance case, which is a misjoinder. And the opposite party No. 1/salesman is also nothing to do with the case on hand.

                 The opposite parties have also filed a citations of Hon’ble National Commission, 2011(3) CPR 150 (NC) in R.P. No. 1399 of 2011 decided on 11.05.2011. In which it was held that it is for the complainant to prove that the vehicle suffered from any manufacturing defect by examining expert.  And judgment of the Hon’ble Supreme Court in “Maruti Udyog Limited vs. Sunil Kumar Gabgotra” reported in II (2006) CPJ 3(SC) wherein it was held that in case a vehicle sold with defective parts. The vehicle as a whole cannot be directed to be replaced and these parts which are found to be defective can only be directed to be replaced.

               Similarly in another citation of Hon’ble State Commission of Chandigarh, 2009 (1) CPR 73, it was held that “unless specific defects are pointed out and proved the deficiency in service cannot be accepted”.

               In Hon’ble A.P. State Commission 2010 (3) CPR 507, “it was held that manufacturing defect must be proved by expert technical evidence”.

              In the Hon’ble H.P. State Commission 2010 (3) CPR 441, “it was held that the evidence of expert would be vital & necessary in tracing manufacturer’s defect”.

              In Uttarakhand state commission 2011 (4) CPR 208 it was held that the manufacturing defect has to be proved by expert opinion.

10.         In the instant case, the complainant did not prove the manufacturing defect by examining an expert and the vehicle was also repaired locally violating the terms and conditions of the warranty of the vehicle. There is neither any specific pleading nor proof about alleged defects in the vehicle. The complainant did not choose to file his driving licence. It is not known as to who was using the vehicle and how it was being driven. Therefore it can be inferred that improper use of the vehicle by an uncompetant driver must have contributed damage to the vehicle at such an early stage. It is also evident that the complainant has been using the vehicle for commercial purposes and not for his personal exclusive livelihood. The insurance policy under Ex.A8 clearly shows that it is a commercial vehicle. Therefore the complainant cannot be termed as a “consumer” under the Consumer Protection Act, 1986.

11.          In view of the aforesaid discussion, we hold that the complainant has failed to prove deficiency of service on the part of any of the opposite parties for the purpose of the reliefs sought for. Therefore the complaint is liable to be dismissed.  

12.            In the result, the complaint is dismissed. No costs.               

      Dictated to Stenographer, after correction the order was pronounced by us in the open court this the 20^th day of March, 2013.

            Sd/-                                  Sd/-                               Sd/-

           LADY MEMBER                     PRESIDENT            MALE MEMBER  

 APPENDIX OF EVIDENCE

                        WITNESS EXAMINED

For the complainant:                                             For the opposite parties;-

          -Nil-                                                                      -Nil-

DOCUMENTS MARKED

For the complainant:                                            For the opposite parties:-

              Sd/-                                 Sd/-                       Sd/-

       LADY MEMBER                   PRESIDENT             MALE MEMBER   

Copy to:

1. The complainant.
2. The opposite parties
3. Spare Copy.