SMT. RAVI SUSHA: PRESIDENT
This complaint has been filed U/s 12 of Consumer Protection Act 1986 seeking to get an order directing opposite parties 1 to 3 to refund Rs.56,037/- the value of scooter and Rs.5,00,000/- towards compensation with interest to the complainant.
Facts of the case are that on attracting the advertisement of OP1 on 31/01/2017 the complainant purchased a Yamaha Alfa scooter by paying an amount of Rs.56,037/- by cash. On the basis of the above said purchase the OP had taken steps to register the vehicle in the name of the complainant and vehicle was hand over to the complainant. On using the vehicle by the complainant, she noticed that the vehicle was not a brand new one and it was an old repaired vehicle. On examination by a private expert it is found that the chasis of the vehicle was replaced, fork oil was leaking and the disc of the tire was bended etc.
Complainant further alleged that the complainant has returned the vehicle to the OPs 1 and 2 on 03/04/2017 and the same vehicle was again given delivery to the complainant on 12/05/2017. Further complainant has filed a complaint before Kannur Town police station and on enquiry police officers confirmed that the vehicle in dispute is an old, defective one and as per direction of police, the vehicle was again returned to OPs 1 and 2 on 25/05/2017 complainant alleged that the action of OPs amount to deficiency in service and unfair trade practice OPs have not redressed the grievance of complainant so far. Hence this complaint.
After receiving notices OPs 1 and 2 filed joint version. Submitted that the allegation in the complaint that the complainant has purchased a new Yamaha Alpha Scooter on 31/03/2017 from the OP by paying a net cash of Rs.56,037/- is not correct. These OPs submits that the complainant has not paid any amount towards the purchase of the above vehicle. Further submitted that there was a Govt. notification stating that all new BS 3 vehicles can be sold only up to 31/03/2017 and no new BS 3 new Alpha model Yamaha Motor Cycle for sale. OP advertised that a discount of Rs.8000/- is offered for purchase of new BS 3 Alpha model Yamaha Motor Cycle in March 2017. “The complainant approached the OP on 31/01/2017 and agreed to purchase BS 3 Alpha model Yamaha Motor Cycle and since it was the last date for registration of BS 3 vehicles the OP on the same day after PDI registered a new BS 3 Alpha model Yamaha Motor Cycle in the name of the complainant without receiving a single pie from the complainant. The policy of Insurance was taken in the name of the complainant from National Insurance Company Ltd. by OP No.1 and the complainant has not paid any amount to the OP towards the above transaction. The OP has arranged finance from M/s Bussan Auto Finance India Pvt. Ltd. and the loan amount was rs.60,658/-”. These OPs submits that since there was time limit for registration of BS 3 vehicle and was forced to register the vehicle in the name of the complainant. “The complainant was asked to sign the documents required for hypothecation of the vehicle but for some reason or other she delayed to sign the documents required for hypothecation of the vehicle. The vehicle was registered and was kept outside the OPs showroom for delivery immediately after he complainant complies with the conditions and sign the documents needed for hypothecation of the vehicle and when these OPs receives the hypothecation loan amount.” Since the Govt. notification says that all new BS 3 vehicles will be registered temporarily only up to 31/03/2017 and permanent registration BS 3 new vehicle has to be completed before 30/04/2017. These OPs registered the above vehicle in the name of the complainant without receiving any amount towards the value of the vehicle. The another allegation of the complainant that she has paid Rs.56,037/- towards the value of the above vehicle to the OPs on 31/03/2017 is not correct and was kept outside the showroom. On 20/05/2017 the complainant along with her brother came to these OPs showroom and requested the 2nd OP to have a test ride of the above vehicle and obtained the key from the 2nd OP and went away with the vehicle. The complainant has taken possession of the above vehicle without the knowledge and consent of these OPs by misrepresenting and misleading and cheating these OPs. These OPs approached the complainant’s home and requested to give back the vehicle stolen by the complainant but the complainant did not give back the above vehicle to these OPs. As a result the 2nd OP gave a complaint before SI of police, Kannur Town Police station who summoned the complainant and from where the complainant agreed to give back the above vehicle stolen by the complainant. Accordingly on 25/05/2017 the complainant along with her husband and an Auto rickshaw driver came to these OPs showroom and gave back the above vehicle to these OPs. It is submits that they have never given delivery of any vehicle to the complainant and there is no deficiency in service or any unfair trade practice on the part of these OPs. Hence, prayed for the dismissal of the complaint.
OP No.3 filed separate version stating that the OP No.3 is the manufacturer of premium quality motorcycles and accessories sold in the country under the name “YAMAHA”. That the answering OP does not sell its motorcycles to any individual customer and that the Answering OP sells the motorcycles to its authorized dealers only. The said agreement stipulates the relationship between the two on Principal to Principal basis. It is submitted that the liability of the Answering OP is limited only for any manufacturing defect in the motor cycle or post services problems within the period of warranty extended by the answering OP, but the sale related issues are solely handled by the dealer’s of the answering OP, in the present case the OP No.1. Therefore, in such facts and circumstances, the OP No.3 cannot be burdened with or held liable for any acts or omissions, if any, in the part of the OP No.1 and 2.
On the basis of the contention raised by OPs 1 and 2 complainant has taken steps to implead OP No.4 by IA No.70/18 dated 19/03/2018 and impleaded the finance company from which the hypothecation of the vehicle was taken. OP No.4 has not filed version or contest the case.
At the evidence stage complainant and OPs 1 and 2 led their evidence. Complainant filed her proof affidavit and documents. Examined as Pw1, the documents got marked as Ext.A1 to A5. On the side of OPs, OP No.2 filed his proof affidavit and was examined as Dw1. Ext. B1 to B8 and Ext.X1 series, certificate from RTO Kannur submitted as per the cause, production petition of OPs 1 and 2. OPs1 and 2 also examined the concerned RTO who had issued Ext.X1 series as Dw2.
Complainant’s allegation is that she purchased a Yamaha Alfa Scooter, believed to be a new one, from OP No.1 by paying Rs.56,037/- by cash. But after using the vehicle, she noticed that the vehicle was not a new one and it was an old repaired vehicle. It is alleged that on examination by a Private expert, it is found that the chasis of the vehicle was replaced, fork oil was leaking and the disc of the tire was bended etc. Further submitted that the MVI in his report Ext.A5, clearly mentioned that there are scratch marks. And there is misalignment in the body parts and the vehicle had undergone repair work. Complainant alleged that from the report of MVI Ext.A5 it is evident that vehicle delivered to the complainant was a repaired vehicle. Another allegation is that only after receiving RC book, the complainant came to know that OP inducted a hypothecation over the vehicle with OP No.4. According to complainant she had paid Rs.56,037/- by cash to OPs 1 and 2 as full value of the vehicle. It is alleged that action of OPs 1 and 2 in making endorsement of hypothecation in the RC book amounts deficiency in service and unfair trade practice.
On the other hand OPs 1 and 2 contended that there was a Govt. notification stating that all new BS 3 vehicles can be sold only up to 31/03/2017 and no new BS 3 new Alpha model Yamaha Motor Cycle for sale. OP advertised that a discount of Rs.8000/- is offered for purchase of new BS 3 Alpha model Yamaha Motor Cycle in March 2017. “The complainant approached the OP on 31/01/2017 and agreed to purchase BS 3 Alpha model Yamaha Motor Cycle and since it was the last date for registration of BS 3 vehicles the OP on the same day after PDI registered a new BS 3 Alpha model Yamaha Motor Cycle in the name of the complainant without receiving a single pie from the complainant. The policy of Insurance was taken in the name of the complainant from National Insurance Company Ltd. by OP No.1 and the complainant has not paid any amount to the OP towards the above transaction. The OP has arranged finance from M/s Bussan Auto Finance India Pvt. Ltd. and the loan amount was Rs.60,658/-”. OPs submits that since there was time limit for registration of BS 3 vehicle, they were forced to register the vehicle in the name of the complainant. “The complainant was asked to sign the documents required for hypothecation of the vehicle but for some reason or other she delayed to sign the documents required for hypothecation of the vehicle. The vehicle was registered and was kept outside the OPs showroom for delivery immediately after he complainant complies with the conditions and sign the documents needed for hypothecation of the vehicle and when these OPs receives the hypothecation loan amount.” Since the Govt. notification says that all new BS 3 vehicles will be registered temporarily only up to 31/03/2017 and permanent registration BS 3 new vehicle has to be completed before 30/04/2017, these OPs registered the above vehicle in the name of the complainant without receiving any amount towards the value of the vehicle. Further submitted that the another allegation of the complainant that she has paid Rs.56,037/- towards the value of the above vehicle to the OPs on 31/03/2017 is not correct. It is submitted that OPs 1 and 2 registered the vehicle in dispute in the name of the complainant without receiving any amount towards the value of the vehicle.
On perusal of Temporary Registration Certificate Ext. B3, Ext.B4 Sale Certificate, Ext.B5 certificate of Inspection of Motor Vehicle, Ext.B6 (Ext. A4) Ext,A1, Form 8B, Ext.A2 Motor Insurance Certificate clearly states that the vehicle is hypothecated with OP4 Bussan Auto Finance India Pvt. Ltd. Since all these documents contain the endorsement of the Financier of the vehicle is Bussan Auto Finance India, the averment of the complainant that she doesn’t know about, the consent given for taking hypothecation of the vehicle with OP No.4 and paid the value of the vehicle Rs.56,037/- by cash to OPs 1 and 2 cannot be believed. It is a fact that there was police complaint filed by parties and as per the direction of police, the vehicle is with OPs 1 and 2. Ext.B1 shows the complaint filed by OP No.2 before Sub Inspector of police Kannur about the taking of the vehicle by complainant and her brother. OPs case is that they had not delivered the vehicle to the complainant. Here complainant also failed to submit delivery note of the vehicle in dispute. Hence from the above facts and circumstances we are constrained to believe the contention of OPs 1 and 2. Further Ext.X1 series Abstract of order issued by Transport Department date 24/08/2017 that “as per the judgments of Hon’ble High Court of Kerala that in respect of BSIII Emission Standard vehicles manufactured before 01/04/2016 and sold before 31/03/2017 can only be registered”. From the evidence of Pw1, it is revealed that the complainant had not signed any of the loan application papers.
Since there is endorsement in the papers related to the vehicle RC, Insurance, Sale letter etc., the complainant’s averment that she had paid the value of vehicle in dispute Rs.56,037/- to OPs 1 and 2 also cannot be believed. Here though the report of the MVI (Ext.A5) that the vehicle was undergone repair works, as she had not spent any amount towards payment, we cannot direct OPs to pay the value of the vehicle as stated in Ext.A1 to the complainant.
Hence from the overall evidence and circumstances of this case, we are of the opinion that there was no deficiency in service and unfair trade practice on the part of opposite parties.
In the result complaint is dismissed. No order as to cost.
Exts.
A1- Certified copy of form 8B
A2- Insurance policy
A3- Receipt
A4- Certified copy of RC
A5- Report of MVI
B1&B2- Complaints filed against complainant by OP to police
B3- Temporary Registration certificate dated 01/04/2017 (certified copy)
B4- Certified copy of Sales certificate
B5- Certificate of Inspection (certified copy)
B6- Certified copy of RC
B7- Certified copy of invoice
B8- Certified copy of FIR
X1 (Series) – Certificates from RTO Kannur
Pw1- Complainant
Dw1-OP2
Dw2- O Promodkumar- Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
