Kerala

StateCommission

A/13/395

M/S FORCE MOTORS - Complainant(s)

Versus

RAVINDRAN AND ANOTHER - Opp.Party(s)

C.P BHADRAKUMAR

22 Jan 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.395/13

JUDGMENT DTD:22/01/2016

 (Appeal filed against the order in CC.No.144/2011 on the file of CDRF, Palakkad, order dated : 18.03.2013)

 

PRESENT

 

SHRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

SMT. A. RADHA                             : MEMBER

SMT. SANTHAMMA THOMAS     : MEMBER

 

APPELLANT

 

          M/s. Force Motors Ltd. (A Florida Enterprise)

          Mumbai – Pune Road, Akurdi,

          R/by it’s Manager, Mahesh Bose.

 

          (By Adv: Sri.Chirayinkil C.P. Bhadra Kumar)

 

                                                                                      Vs.

 

RESPONDENTS

 

1.   Ravindran, S/o. Shunmughan,

          5/11, Karadimalakundi, Puthen Veedu.

          Keralassery, Palakkad-678641.

 

2.   The Proprietor,

          M/s. Anugraha Automobiles, 14/724,

          Coimbatore Road, Kalmandapam,

          Palakkad – 678001.

 

          (By Adv: Sri.O.P. Nandakumar for R1)

 

 

 

JUDGMENT

 

SHRI. K. CHANDRADAS NADAR          : JUDICIAL MEMBER

          Appellant was the 1st opposite party in CC No,144/2011 in the CDRF, Palakkad.  The complainant / 1st respondent in this appeal is the registered owner of a 2006 model Autorickshaw bearing registration No.KL-09-U-3911 manufactured by the appellant. The vehicle was purchased for Rs.1,68,000/- on 23/9/06.  It is alleged in the complaint that the opposite parties have promised mileage of 35 KM per litre for the vehicle.  But the vehicle never gave the promised mileage.  The major defect noticed was heavy fuel consumption. The complainant approached the 2^nd opposite party the dealer on several occasions to get the problem rectified.  But in spite of repeated attempts the problem could not be solved.  Even during the warranty period the vehicle became unserviceable resulting in huge financial loss and mental agony to the complainant. The cost of repairs was met by the complainant.  The vehicle was financed by the State Bank of India.  The complainant could not repay the loan as the vehicle could not be plied due to major defects.  The complainant understands that further sale of the vehicle is stopped due to manufacturing defects.  Alleging deficiency in service, the complainant approached the consumer Forum seeking various releafs.

          2.      The 1^st  opposite party contented that the warranty of the vehicle was for 180 days.  The complainant had purchased the vehicle for commercial purpose hence he cannot invoke the protection of the Consumer Protection Act.  The relationship between opposite parties 1 and 2 is one of principal to principal basis.  The 1^st  opposite party is not responsible for the act or omission of the 2^nd  opposite party. The 1^st opposite party never assured of mileage for the vehicle as alleged.  The mileage of a vehicle as well as fuel consumption depends on various factors such as maintenance, road conditions, load put on the vehicle, quality of fuel, driving habits etc.    The complainant had failed to avail 3^rd, 5^th and 6^th free services which was mandatory.   So the alleged problem might have occurred due to the negligence on the part of the complainant to avail the mandatory services.  The vehicle suffered from no manufacturing defect.  After the warranty period repairs can be done only on payment of charges. There was no deficiency in service on the part of the appellant.

          3.      Before the consumer Forum the complainant and one witness were examined as PWs 1 and 2.  A Commissioner was appointed to inspect the vehicle and report whether the vehicle suffered from any manufacturing defect.  His report was marked as Ext.C1. Exts. A1 to A 17 were marked on the side of the complainant.  No oral or documentary evidence was adduced on the side of the appellant.  The consumer forum held that there was deficiency in service on the part of the opposite parties.  But considering the age of the vehicle held that 50% depreciation is to be allowed in granting relief.   Accordingly the opposite parties were directed to pay Rs,84,000/- as the value of the vehicle along with Rs.3,000/-  as the cost of the proceedings. The complainant was directed to hand over the vehicle to the opposite parties.  The 1^st opposite party is challenging the correctness of the order.

          4.      The vehicle purchased by the complainant is a commercial one. By that fact alone it cannot be said that the complainant is not a consumer. Apparently the vehicle was purchased for use to earn livelihood for the complainant. The allegation is that the vehicle developed a major defect of excessive consumption of fuel.  It is in order to establish this allegation,  a Commissioner was got appointed by the complainant.  His report is Ext. C1.   From Ext. C1 it is seen that the commissioner inspected the vehicle on 15/10/2012.  At that time the vehicle was not in running condition.  The Commissioner could not start the vehicle.   Consequently no road test could be performed.  It is reported that none of the parties made arrangement for starting the vehicle for conducting road test.  Oil was found leaking through gaskets and breathers of the engine.  The commissioner found that as the symptom of decompression weak engine due to blow by gases through piston rings as well as poor performance causing higher fuel consumption.  But the commissioner could not assess the fuel average of the vehicle and it was not in running condition.  The other parts of the vehicle were found in working condition on physical inspection. The commissioner also reported that the manufacture had stopped production of this particular kind of vehicle some years back and most of the spare parts are not easily available in the local market.  This was one of the circumstances for passing the impugned order The commissioner has assessed the value of the vehicle at the time of inspection at Rs.15,000/- approximately.

          Thus it can be seen that there is evidence to show that the vehicle suffered from manufacturing defect. Ext. C1 report shows that there was in fact manufacturing defect for the vehicle.  One of the contentions is that the complainant had failed to avail the 3^rd  5^th  6th mandatory services for the vehicle.  Pw1 explained that this was because the company itself was found locked.  There is no evidence to show otherwise PW2 is an independent witness who deposed to the oil leakage of the vehicle.  The definite case is that the complainant had approached the opposite party, several times to rectify the defect but they could not succeed.  Hence though there is delay in filing complaint, it is not clear when the last attempt to rectify the defect was made.  The consumer forum has fairly reduced 50% depreciation for the vehicle.  Together with the fact that this type of vehicle is no longer available in the market and spare part for repair are also not available, it is for the appellant manufacturer to see that the consumer does not suffer from their fault. There is no error in the findings of the consumer forum.   The appeal is devoid of merit and is accordingly dismissed but without costs. 

 

K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

1. RADHA      : MEMBER

 

SANTHAMMA THOMAS      : MEMBER

 

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