By Smt.  Beena. M,  Member:

This is a complaint filed under Section 12 of Consumer Protection Act, 1986.

            2. The complainant’s case in brief is as follows: The above complaint is filed for getting compensation for the deficiency in service and unfair trade practice on the part of the Opposite Parties. The case of the Complainant is that in the 1^st week of July 2017, the Managers of the 1^st   Opposite Party approached the Complainant when they got information that he was about to purchase a passenger auto rickshaw and they persuaded him with sweet words to purchase the vehicle from the Opposite Party and promised that only Rs. 40,000/- were to be paid as down payment and for the balance amount, they will arrange vehicle loan with a financial institution to which they have got business tie up. Consequently on 18.07.2017, the Opposite Party again approached the Complainant and obtained the booking by receiving a payment of Rs. 10,000/- from the Complainant. They have asked the Complainant to go to the 1st Opposite Party's show room on 19-07-17 with balance some of Rs.30,000/- towards the down payment. So on 19-07-17, the Complainant had approached the 1^st  Opposite Party and paid Rs. 30,000/- for which they  issued  receipts for Rs.40,000.  Thereafter the vehicle was released to the Complainant on 20-07-17 without the TP certificates, warranty card, User's Manual and other documents for the purpose of the registration of the vehicle in the RTO. They have asked the Complainant to approach them on 21-07-17 in the evening and it was promised that the entire documents will be handed over to the Complainant on 21-07-17. After receiving the vehicle the Complainant had entrusted the vehicle to Classic Body Works, Ambalavayal, where the hood work is to be done.  As promised, the Complainant approached the 1^st Opposite Party on 21-07-17, and they  handed over the Complainant the TP certificate and the cover note of the insurance policy issued from the National Insurance Co.Ltd., Kalpetta. When the Complainant  demanded for the other documents, it was stated that it will be delivered in due course, at least on the date of registration of the vehicle. On return to home, the Complainant went to the Classic Body Works, Ambalavayal and to his surprise, the foreman of the workshop  stated that the chassis of the vehicle is having different heights of left and right. When this was compared with the specification supplied by the 1^st Opposite Party, the following measurements were noticed:

Left

From                             Front to back

1025 mm, 323 mm, 325 mm, 528 mm, 532 mm, 668 mm, and 678 mm

Right

From Front to back

Nil, 320 mm, 320 mm, 520 mm , 530 mm, 666 mm, and 685 mm. 

          3. Immediately the Complainant  intimated to the 1^st Opposite Party over phone to which they  replied with filthy languages and threatening words. So the Complainant  preferred an oral complaint to the Ambalavayal police and they have influenced the police and so no action was taken by the police and so after a week, the Complainant was forced to file a complaint before the Dy.S.P Kalpetta; and due to the intervention of the Dy.S.P Kalpetta, the 1^st Opposite Party's staff came to the workshop at Ambalavayal and took away the vehicle and thereafter the vehicle is in the custody of the 1^st Opposite Party.

4. The Complainant further averred that the vehicle is financed with the 3^rd  Opposite Party at the instance of the 1^st Opposite Party for which heavy commission was obtained by the 1^st Opposite Party from the Complainant as well as the 3^rd Opposite Party.  Since the vehicle is purchased by the Complainant only for the livelihood, now the Complainant is having no income and so that the repayment towards the loan amount is also affected.  So the Complainant is not in a position to pay the loan amount to the 3rd Opposite Party. By the difference in the height of the chassis of the vehicle and since there is bent in the chassis of the vehicle, the vehicle could not be registered as opined by the officials of the 4^th Opposite Party.  Moreover, if at all the vehicle is registered, due to the above said manufacturing defect the vehicle cannot  be plied on road and accident will be imminent, apart from the alignment problems and the tyre mileage etc. of the vehicle. So, There is unfair trade practice and deficiency of service  on the part of the 1^st and 2^nd Opposite Parties by delivering the vehicle with the knowledge that the vehicle is having manufacturing defects and will not be registered in the R.T. Office.  However, they made the Complainant to believe otherwise, and the Complainant was compelled to purchase the vehicle, which was having inherent manufacturing defects.  Hence the Complainant submitted that the vehicle is to be replaced by a non defective and fresh one with the extended warranty from the date of supply of the fresh vehicle to the Complainant along with an interest free abatement of the repayment of the loan by the 3^rd opposite party starting from the actual date of supply of the fresh vehicle in the above matter.  Otherwise, irreparable loss and damage will be caused to the Complainant.

5. The Opposite Parties No.1 to 4 entered appearance before the Commission and submitted their version.

6. The 1^st Opposite Party in his version states that the allegations of the Complainant is absolutely false and frivolous. The Opposite Party argued in their version that the allegation of manufacturing defect of the vehicle cannot be taken as truth with a mere statement but it is required to be proved beyond doubt by way of expert evidence. The vehicle purchased by the Complainant is manufactured by the second Opposite Party, therefore they are liable to replace the defective parts but does not become liable to replace the vehicle or refund it’s amount. The Complainant’s motive is to obtain  unlawful gain. Hence complaint is to be dismissed.

7. The second Opposite Party filed version stating that their office is situated at Pune, so there is lack of jurisdiction. And they also states that they are unnecessary party, because they have not received any consideration from the Complainant. At the time of delivering the vehicle pre- delivery inspection is carried out. It is also submitted that the Complainant acknowledged the defect free condition of chassis by signing the PDI card at the time of taking delivery. Hence on this ground alone the instant complaint is liable to be dismissed. It is emphatically denied that there was alleged problems in the vehicle or the Complainant reported the same to Opposite Party as alleged by the Complainant. It is submitted that the Complainant never reported or entrusted the vehicle with the alleged problem. There was no alleged problem in the vehicle. The Complainant has suppressed material facts from this Hon'ble Commission and therefore the complaint should be dismissed.

          8. It is submitted that 2^nd Opposite Party does not become liable to replace the vehicle or refund its amount. The matter has never reported to this Opposite Party by the Complainant. That  the  present  complaint is bad for non joinder of necessary parties. It is stated that the body work of the vehicle was done at Classic Body Works, Ambalavayal. According to the complaint that they have done the body works and they informed him regarding the differences in the height of the chassis. It is submitted that an expert’s evidence is required and the Complainant is put to strict proof of the same in support of his case. There is no provision for replacement of the vehicle or refund of the price of the vehicle under any condition.  That the present complaint is baseless and flagrant abuse of process of law to harass this OP. The Complainant is stopped from filing the present complaint and he has no locus standi to initiate the present proceedings and hence liable to be dismissed

9. The third Opposite Party filed version stating that this complaint is not maintainable as there is an agreement between 3^rd Opposite Party and Complainant and the said agreement contains arbitration clause. Therefore all the issues or disputes shall be decided by arbitration. He also states that the defect of vehicle if any is only due to manufacturing defect and this Opposite Party is not liable to pay any damage to this complainant and there is no deficiency on the part of them. This Commission has no jurisdiction to decide regarding prayer sought by the Complainant. The Complainant has not come to the Commission with clean hands. Therefore this Opposite Party prayed to dismiss the complaint.

10. There has no cause of action against the 3^rd Opposite Party bank.  The present complaint is filed after suppressing material facts and as such is disentitled to the relief prayed for.

11. On perusal of complaint, documents,  and proof affidavit the Commission raised the following points for consideration:-

    1. Whether the complaint is maintainable?

    2. Whether there is any deficiency in service from the part of Opposite   

        Party?

    3. Whether the Complainant is entitled to get any relieves as prayed for?

12. On the side of the Complainant he is examined as PW1. Ext. A1 to A4 and C1 marked. PW2 and PW3 were also examined on his side.     
On the side of the 1^st Opposite Party OPW-1 examined and Ext. B1 marked.

13. Pont No.1 to 3 :-  For the sake of convenience and brevity all the points are considered together.

           In this case, the purchase of the Auto rickshaw by the Complainant  was manufactured by the 2^nd opposite party through the 1^st Opposite Party is an admitted fact.  The maintainability aspects and jurisdiction aspects put forward by the Opposite Parties are considered in detail by this Commission. We hold that it is evident that the vehicle was purchased from Opposite Party No.1,which situates within the jurisdiction of the Commission. The second Opposite Party is the manufacturer of the vehicle, so 1^st and 2^nd Opposite Parties are the necessary parties in the proceedings for proper adjudication. There is ample cause of action against 1^st and 2^nd Opposite Parties and come to a conclusion that the Commission has power to interfere with this particular case. Thus, the Point No.1 answered infavour of the complainant.

14. Then the only question remaining for consideration is whether the auto-rickshaw has any manufacturing defect.  In this case, an expert was appointed to examine the vehicle in question. The expert after his detailed physical examination of the vehicle has clearly reported that there is a difference in height from flat surface to chassis and he noted the mis-alignment of back body. Vehicle chassis and Body alignment are symmetric and it forms a structural Inclination in idle condition and it is a manufacturing defect.  The report marked as Ext. C1 and during  examination, PW-2, the expert deposed that the vehicle has manufacturing defect.  Moreover PW2 was not cross examined by the Opposite Parties and there is no objection filed.  So, it is very clear that the vehicle delivered to the Complainant is a defective one and the Complainant has suffered   much hardship, mental agony and loss. The behavior of the 1st and 2nd Opposite Party towards the Complainant, who is a customer, is shocking.  The 1^st and 2^nd Opposite Parties  did not look into whether the complaint raised by the complainant is a genuine one or not and blindly opposed to it.  They have some duties and liabilities towards their customers.  Here 1^st and 2^nd Opposite Parties failed to provide post-delivery services to the Complainant.   Thus, the Point No.2 is answered in favour of the Complainant.

          15. Considering the relief to be allowed, we come to a conclusion that the Complainant is entitled to get a new vehicle instead of the defective one.   It is very clear that the complainant has not  used the vehicle even for a day and he could not repay the loan amount.  The first  and second Opposite Parties are liable to pay the interest due on the non-repayment of the loan as it is not a default on the part of the Complainant.   As a humanitarian consideration and the particular situation, the vehicle loan should be rescheduled.  Hence we are directing the 3rd opposite party to reschedule the vehicle loan after the replacement of the vehicle by the 1^st  and 2^nd  Opposite Parties and the 1^st  and 2^nd  Opposite Parties are directed to pay the interest due to the 3^rd Opposite Party.   We also found that the first and second Opposite Party should pay  an  amount Rs.15,000 as compensation.  There is also a prayer to issue certificate with regard to the possibility of registration of the   defective vehicle. In the present situation there is no need to allow this prayer.

In the result, the complaint is partly allowed as follows:-

1. The 1^st and 2^nd Opposite Parties are directed to replace the vehicle within one month from date of the receipt of this order without any cost and expenses from complainant. If the Opposite Party failed to replace the vehicle, they are directed to refund the full market price of the vehicle at the time of making payment.
2.  The first and second Opposite Party should pay Rs.15,000/- (Rupees Fifteen thousand only) as  compensation to the Complainant which shall be equally contributed by them.

         © 1^st and 2^nd Opposite Parties are directed to pay the interest due to the 3^rd

              Opposite Party with effect from the date of availing loan till  rescheduling

              the loan.

       (D)  The 3^rd Opposite Party is directed to reschedule the vehicle loan after the

              replacement of the vehicle by the 1^st and 2^nd Opposite Parties.

       (E) The 1^st  and 2^nd  Opposite Parties are directed to pay Rs.10,000/-  (Rupees  

             Ten thousand only)  towards as cost to the Complainant.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Commission on this the 12^th day of  April 2022.

Date of filing: 14.08.2017.

                                                                   PRESIDENT:   Sd/-

                                                                   MEMBER   :    Sd/-

                                                                   MEMBER   :    Sd/-

APPENDIX.

Witnesses for the complainant:

PW1.           Sarath Kumar. K.S                             Complainant.

PW2.          Prem Das.                                Work Shop Superintendent.

PW3.          Sibi Varghese.                          Work shop.

Witness for the Opposite Parties:

OPW1.        Ratheesh. R.                                       Service Manager.                              

Exhibits for the complainant:

A1.          Copy of Complaint.                                        dt: 29.07.2017.

A2.          Copy of Cash Receipt Kpt Voucher.                dt:19.07.2017.

A3.          Vehicle Measurement sheet.                     

A4.          Copy of Temporary Certificate of Registration.  dt:27.07.2017.

C1.           Commission Report.                                                dt:16.02.2018. 

Exhibits for the Opposite Parties:

B1.             Authorisation.