DATE OF FILING :11.10.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 29th day of January, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.220/2010
Between
Complainant : Jaleel S/o Abdul Salam,
Block No.1167,
Balagram P.O,
Prakashgram,
Kallar – 685 552, Idukki District. (By Authorised Agent)
And
Opposite Parties : 1.The Branch Manager,
SML Motors,
SML Building,
Vellayamkudy P.O,
Kattappana – 685 515,
Idukki District.
(By Adv: Gem Korason)
2. The Branch Manager,
SML Motors,
SML Building,
Muvattupuzha Road,
Vengalloor P.O,
Thodupuzha, Idukki District.
(By Adv: Gem Korason)
3. The General Manager,
Piaggio Vehicles Private Limited,
101B/102, Phoenix, Bund Garden Road,
Opposite Residency Club,
Pune – 411 001.
(By Advs: Binu Mathew & K.M.Sanu)
O R D E R
SMT.SHEELA JACOB(MEMBER)
On 30.03.2009, the complainant purchased a Piaggio Trucker bearing Reg. No.KL-37/6148 from the Ist opposite party with the intention of using it as a loading vehicle for earning his livelihood. For purchasing the vehicle he took a loan of Rs.40,000/- from the Ist opposite party.
All the instalments were remitted in full by the complainant. He purchases fish from Vaikom and used to supply them in different hotels at Munnar. After purchase of the vehicle, it became defective within 15 days. The fact was intimated to the opposite party. The opposite party sent a Mechanic and repaired the defect. The vehicle became defective on several occasions and there were several break down of the vehicle and on each such occasion the vehicle was taken to the Ist opposite party. The business of the complainant also affected due to this, which comes to a loss of Rs.2 lakhs. The engine of the vehicle became struck and the Ist opposite party's mechanic took the vehicle for repair and returned it only on 27.01.2010 stating that all problems in the vehicle has been set right and the warranty period was extended. After one week the vehicle became defective again. The Ist opposite party did not rectify the defects. They could not renew the insurance and permit, so there were some default in payment of instalments. So the complainant could not ply the vehicle through the road. The Ist opposite party made a complaint against the complainant to the DYSP, Kattappana. All the problems arised because of the manufacturing defects of the vehicle. He sent a lawyer notice to the Ist opposite party but no reply was given by the opposite party. Alleging deficiency in service against the opposite parties, the complaint has been filed for a direction to replace the vehicle and also to pay compensation.
2. In the written version filed by the Ist and 2nd opposite parties, it is contended that they have no connection with the transaction in question. There was no deficiency in service on their part. They have not given any vehicle to the complainant on instalment basis. The complainant purchased a piaggio trucker manufactured by the 3rd opposite party from the 2nd opposite party. The said vehicle was bought by the complainant for self employment for the purpose of selling fresh fish etc. is not correct because the complainant used the vehicle for commercial purpose by employing paid drivers. The complainant is not a consumer as per the provision of the Consumer Protection Act and the dispute alleged is not a consumer dispute. The complainant had not made any complaints regarding such defect or break down of his vehicle. The engine of the vehicle got struck, so the Ist opposite party's Mechanic took the vehicle for repair and returned to the complainant. The warranty period was not extended by the Ist opposite party. The engine of the vehicle seized due to overloading of the vehicle and misuse of the same by the complainant. No proper maintenance of the vehicle was being carried out by the complainant. There is no manufacturing or other defects in the complainant's vehicle. The vehicle was purchased by the complainant after being fully satisfied with its quality and performance. The opposite parties have not received any lawyer notice. The vehicle is using for commercial purpose and it is not maintainable. There was absolutely no negligence or deficiency in service on the part of the Ist and 2nd opposite parties and so they are not liable to pay any compensation.
3. In the written version filed by the 3rd opposite party, it is contended that the complainant is not a consumer as per the provisions of the Consumer Protection Act and the dispute alleged is not a consumer dispute. The 3rd opposite party admitted that the 3rd opposite party is the manufacturer of Piaggio vehicles and the Ist and 2nd opposite parties are the authorised dealer-cum service centre of the 3rd opposite party. The agreement between the complainant and the Ist opposite party or the 2nd opposite party or his financier is a loan agreement and there is no locus standi to file a petition of this nature. The complainant has admitted that he used the vehicle for commercial purpose of selling fresh fish etc. from Vaikom to hotels in Munnar. So the complainant is not a 'consumer' as contemplated under Section 2(d) of the Consumer Protection Act. The complainant had not made any complaints regarding the defects within 15 days from the purchase of the vehicle. On several occasions, the vehicle became breakdown and that on each such occasion the vehicle was taken to the Ist opposite party for repairs is not correct. The 3rd opposite party had not get any information regarding these complaints. The complainant's vehicle was delivered to him on 3.03.2009. The service manual, warranty policy, invoice etc. in original was handed over to him. Until 10.06.2009 the services and periodical maintenance of the complainant's vehicle were done. The vehicle had covered 30299 Kms. as on 10.06.2009. The engine of the vehicle seized due to overloading of the vehicle and misuse of the same by the complainant. All the problems alleged by the complainant in the vehicle at the time of service were rectified to the full satisfaction of the complainant by the authorised service centre. The vehicles manufactured by the 3rd opposite party are tested and its quality approved by qualified and competent persons and authorities. The vehicle was purchased by the complainant after being fully satisfied with its quality and performance. The opposite party has not received any lawyer notice. The vehicle is using for commercial purpose and it is not maintainable. There was absolutely no negligence or deficiency in service on the part of the 3rd opposite party and so they are not liable to pay any compensation.
4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
5. The evidence consists of the oral testimony of PW1 and Exts.P1 to P7 marked on the side of the complainant and the oral testimony of DW1 and Ext.R1 marked on the side of the opposite parties.
6. The POINT :- The complainant as PW1 admitted that he could not repay the loan amount in accordance with the provisions of the loan agreement. Ext.P1 is the copy of the maintenance manual stating that the warranty extended to 3 months. Ext.P2 is the copy of the reply notice given to SML Finance on 25.05.2010 about the cheque. Ext.P3 is the copy of the lawyer notice issued by SML Finance about the default in payment. Ext.P4 is the pass book of the loan account. Ext.P5(series) are the bills for the repairing charges of the vehicle. Ext.P6 is the lawyer notice issued by the SML Finance on 13.03.2010. In the cross examination, PW1 admitted that the vehicle is used for carrying fish for business purposes. About 500 Kg fish was transported along with necessary ice. There was no additional sheet for the platform of the vehicle. PW1 also admitted that in the warranty period, the opposite party had done proper servicing and maintenance and he also admitted that he did not inform to the 3rd opposite party regarding the complaints of the vehicle. The 3rd opposite party has given evidence as DW1 would stated that the complainant used the vehicle for commercial purpose by employing paid drivers and he did not make any complaint regarding the defect or break down of his vehicle. Ext.R1 is the standard operation, maintenance and warranty manual. The vehicle was delivered to him with warranty manual on 3.03.2009. The warranty period was not extended by the opposite parties. The vehicle had covered 30299 kilometres as on 10.06.2009. The warranty provided for the vehicle is 12 months or 36000 kilometres whichever is earlier. The vehicle was overloaded with fish and ice and above the carriage capacity of the vehicle. The engine became struck due to overloading and misuse. The parts were damaged due to misuse and not due to any manufacturing defect. The complainant is a defaulter of the instalments to the financier company. So he could not ply his vehicle on road. In cross examination, DW1 admitted that they sold the vehicle to the complainant but the warranty was not extended. Until 10.06.2009 the services and periodical maintenance of the complainant's vehicle were done. The warranty is subject to terms and conditions as provided by the manufacturer. The warranty period is already over. Coming to the merit of the question, it is very hard to sustain the allegation of deficiency in service alleged by the complainant. Eventhough it is alleged in the complaint in a casual way that the vehicle became defective within 15 days. The fact was intimated to the Ist opposite party. He sent a Mechanic and repaired the same and again the engine of the vehicle got struck and the Ist opposite party's mechanic took the vehicle for repairs and returned it only on 27.01.2010. After one week, the vehicle became defective. No effort was made to test the defect of the vehicle. The complainant has not produced any documents to prove if any manufacturing defect to the vehicle. No expert commissioner was appointed to prove that the vehicle has manufacturing defects. So manufacturing defects as such has been attempted to be proved by the complainant. From the evidence it can be seen that the complainant had entered into a hire purchase agreement and he is a defaulter of the instalments, lawyer notices issued by the SML Finance. Therefore on an assessment of the evidence in this case we feel that no deficiency in service has been made out on the part of the opposite parties and they are not answerable for any loss sustained by the complainant.
In the result, the complaint is dismissed.
Pronounced in the Open Forum on this the 29th day of January, 2011
Sd/-
SMT.SHEELA JACOB(MEMBER)
Sd/-
I agree SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
I agree SMT.BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - Jaleel
On the side of Opposite Parties :
DW1 - V. Harishkumar
Exhibits:
On the side of Complainant:
Ext.P1 - Photocopy of Operation and Maintenance Manual
Ext.P2 - Copy of Reply Notice dated 25.05.2010 issued by the advocate of the complainant
Ext.P3 - Copy of Lawyer Notice dated 13.09.2010 issued by the advocate of the Ist opposite party
Ext.P4 - Pass Book of the loan account in favour of the complainant
Ext.P5(series) - Bills for the repairing charges of the vehicle
Ext.P6 - Lawyer Notice dated 13.03.2010 issued by the opposite party
Ext.P7(series) - AD Cards(2 Nos)
On the side of Opposite Parties :
Ext.R1 - Operation, Maintenance and Warranty Manual
