DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 15th day of June 2020
Present: Sri.V.P.Anantha Narayanan, Member(President I/c)
: Smt.Vidya.A, Member Date of Filing: 26/11/2014
CC /186/2014
Abdul Khadar,
S/o.Ayisha,
Residing at 9/68,(302),
Anchangadi, Thonipadam, - Complainant
Tharur, Palakkad - 678 543.
(By Advs.V.R.Sivadasan & Dhananjayan)
V/s
1. The Manager,
Piaggio Vehicles Private Limited,
101 B/102, Phoenix,
Bund Garden Road,
Opposite residency Club,
Pune – 411 001.-Opposite parties
2. The Manager,
SML Motors, Dealer Code – IN55AS218,
NH-47, Coimbatore Road,
Marutharode(PO), Palakkad – 678 007.
(By Adv.S.T.Suresh)
O R D E R
By Smt.Vidya.A, Member
Brief facts of the complaint
The complainant purchased a PIAGGIO APE TRUCK PLUS BSIII Light Motor Vehicle Goods carriage from the 2nd opposite party who is the authorized dealer of the 1st opposite party. The 1st opposite party is the manufacturer of the above vehicle. The vehicle was registered under Alathur Regional Transport Office and got Reg.No.KL49-C 9063. The complainant purchased the vehicle for his livelihood. He was working as a driver for daily wages and there was no other source of income for his family other than his job. So the complainant decided to purchase goods carriage as his own and for that purpose, he approached the 2nd opposite party’s showroom. He purchased this vehicle under the assurance given by the employee of the 2nd opposite party that the vehicle is low cost, maintenance free, free service for 2 years and the availability of the spare parts and quality services.
For the purpose of purchasing the vehicle, the complainant availed a loan of Rs.2,85,000/- from Canara Bank, Pazhambalakode Branch. But within one month after its purchase, the vehicle started showing troubles and it was not in a condition to drive due to damages to some parts. He entrusted the vehicle to the service centre of the 2nd opposite party. The supervisor of the service centre informed that it will take time to repair the vehicle as the spare parts are not available there and in other shops also. The repair of the vehicle took nearly one month. During the period of two years, the complainant approached the 2nd opposite party 18 times for the repair of the vehicle due to various reasons such as damages to some parts, problems in clutches and other problems related to engine. Every time they took nearly one month time to deliver back the vehicle after completion of repair. Sometimes they asked the complainant to arrange the spare parts from Thrissur and Coimbatore and even from second hand shops. Eventhough it is the duty of the opposite party to arrange the spare parts of the vehicle, the complainant had arranged it in order to avoid the delay in repairing. This happened 3 times during the period. The second opposite party charged huge amount for repairs and the complainant had paid an amount of more than Rs.80,000/- for repair without any valid bill or receipt. The same experience was shared by some other Ape truck owners and drivers and they advised the complainant to demand bill from the opposite parties. So he demanded bill from the 2nd opposite party when the vehicle was given for repair last time. Then they issued a bill without date, bill number, name and seal of the opposite party and the same is produced before the Forum.
Due to these problems of the vehicle, the complainant was unable to repay the loan and now it is accumulated with interest and penal interest. There is no other source of income to the complainant and his family and he is in financial trouble due to the defects happened to the vehicle. All these happened because of the acts of the opposite parties in selling the vehicle suppressing the manufacturing defects and other problems. It amounts to unfair trade practice on their part. It is the duty of the 2nd opposite party to ensure immediate service and arrange spare parts for the vehicle. They have not done it and there is a clear deficiency of service on their part. The complainant is not using the vehicle because of the serious risk involved. The Regional Transport Office had initiated legal proceedings against the complainant for realization of tax amount. The complainant paid Rs.3,20,000/- for this vehicle.
Hence the complaint is filed for directing the opposite parties to pay a sum of Rs.3,20,000/- with interest at the rate of 18% per annum from the date of purchase till the realization towards the price of the vehicle; directing to pay a sum of Rs.3,05,000/- towards the loan dues to the Canara Bank, Pazhambalakode Branch; to pay a sum of Rs.1,00,000/- towards the deficiency of service on the part of the 2nd opposite party; to pay a sum of Rs.50,000/- towards mental agony and directing the opposite parties to pay the cost of the proceedings and such other reliefs as the Forum deems fit.
Complaint admitted and notice sent to opposite parties. They appeared and filed their version.
The main contentions raised in the version.
The opposite parties admit that the complainant purchased the vehicle mentioned in the complaint. The vehicle was manufactured by the 1st opposite party and it was sold and serviced by the 2nd opposite party. But they denied the contention that the complainant had purchased it for his livelihood. According to them it was purchased for commercial purpose. So it is a commercial transaction and would not come under the purview of Consumer Protection Act. They contended that it is not correct to state that within one month after purchase, the vehicle started showing problems and was not in a condition to drive due to damage to some parts. The supervisor of the service centre of 2nd opposite party had never told the complainant that it will take time to clear the problem because spare parts are not available. The spare parts are always available with the 2nd opposite party and in case of non-availability, there is a scheme for the company called VOR(Vehicle Off Road order) in which case, the company shall make available any spare parts within 72hrs. It is also incorrect to say that they kept the vehicle for nearly one month for repair every time due to the non-availability of spare parts. The allegation that the same process continued during the period of two years is also not correct. There are eight free services for the newly purchased vehicle. Other than this, the complainant had seldom brought the vehicle to the 2nd opposite party’s workshop. 2nd opposite party denied the contention of the complainant that he has brought the vehicle for repair more than 18 times due to various problems such as damages to some parts, problems happened to clutches and other problems related to engine and every time the 2nd opposite party took nearly one month time to deliver back the vehicle after repair. The 2nd opposite party had never asked the complainant to arrange spare parts from Thrissur and Coimbatore or to search in second hand shops. The allegations that the complainant arranged spare parts three times is not correct and such things never happened. The 2nd opposite party never charged huge amounts for repair. The complainant has not produced any bills or voucher to prove his allegations. The 2nd opposite party without issuing bills or receipts never receive cash payment. They issue computerized bills and it will normally bear date, time etc. The repayment of the HP loan taken by complainant may be due to his financial difficulties. It need not be because of the problems of the vehicle. The vehicle has run 16,800 Kms. when the opposite party has last seen the vehicle. A defective vehicle will not be able to ply such durations. It is not correct to state that the opposite parties have suppressed the manufacturing defects and other problems. There is no deficiency of service or negligence on the part of the opposite parties and they never had the intention to make unlawful loss to the complainant. The complainant who has misused the funds and collections received by using the vehicle, is blaming the opposite parties for his financial problems by making false allegations against them. It is the duty of the complainant to pay tax in time. Otherwise naturally Regional Transport Office will initiate legal proceedings. For that, opposite parties are not responsible and not liable to pay any compensation to the complainant.
Other than for free service, the vehicle has been seldom entrusted with the 2nd opposite party and they have done all the works in time. The vehicle was last brought to the workshop on October 2013. The complaint is without any bonafides. It is false, frivolous, vexatious and liable to be dismissed with compensatory cost to the opposite parties. The complainant is not entitled to get any of the reliefs claimed in the complaint.
From the side of the complainant, chief affidavit filed. Ext.A1 to A9 marked. Complainant filed an IA to appoint an expert commissioner to inspect the vehicle. IA allowed and commissioner filed report which is marked as Ext.C1.
From the side of the opposite parties chief affidavit and additional proof affidavit filed.
From the complainant’s side no witness was examined. From the side of the opposite parties 2 witnesses were examined as DW1 and DW2 and the commissioner was also examined as CW1.
Main issues arising for consideration:
- Whether there is any deficiency of service on the part of the opposite parties?
- If so, what is the relief as to cost/Compensation?
Issues 1&2
Heard.
We have perused the chief affidavits and documents produced.
The 1st issue raised by the opposite parties that the complainant purchased the vehicle for purely commercial purpose and hence it is a commercial transaction and would not come under the purview of Consumer Protection Act. As per the complaint, the complainant purchased the vehicle for his livelihood and he and his family solely depend on the vehicle and there is no other source of income for them. Onus is on the opposite parties to establish that the complainant purchased the vehicle for commercial purpose and they failed to discharge the same. So the pleadings in the plaint can be considered to be true and the complainant is a ‘consumer’ under the Consumer Protection Act.
As per the complainant, the vehicle started showing trouble within one month of its purchase and it was not in a condition to drive the vehicle due to damage to some or other parts of the vehicle. He entrusted the vehicle 18 times with the 2nd opposite party for repair during the period of two years. Every time they took more than one month time for repair due to the non-availability of spare parts. The 2nd opposite party had denied all these contentions. According to them other than the eight free services for a newly purchased vehicle, the complainant had seldom brought the vehicle to the workshop of the 2nd opposite party. Further as per their contention, the spare parts are available in plenty and in the case of non-availability, there is a scheme for the company called VOR(Vehicle Off Road order) in which case the company will make arrangements for spare parts within 72hrs. So the contention of the complainant that sometimes he had to arrange the spare parts, from some other places and second hand shops is totally false. Further they issue computerized bills with date and time whenever they receive cash payment. The allegation in the complaint that for every repair the 2nd opposite party charged huge amounts and they never issued bills for the repair is incorrect.
Eventhough the opposite party denies all these contentions in the complaint, no attempt was made by them to bring out the veracity of the contentions. They had not taken any steps to cross examine the complainant. On the other hand, the complainant filed petition to cross examine the opposite party and from the opposite party’s side two officials of the 2nd opposite party were examined as DW1 and DW2. DW1, who is the Service Manager of the 2nd opposite party deposed before the Forum that the complainant had come to the 2nd opposite party for the repair of the vehicle five or six times. Witness added that every time when a vehicle is brought for repair, the original bill is given to the customer after keeping the duplicate in the computer software. They are not charging any huge amount for repair which can be seen from the software and they are ready to produce the bills issued to the complainant before the Forum. The Deputy Manager of the 2nd opposite party was examined as DW2. According to him, the vehicle was not brought to the 2nd opposite party’s workshop after eight free services. He further added that when the vehicle is brought for repair, there will be a job card in which they note the defects in the vehicle and got signed by the customer. On returning the vehicle after repair, they issue a copy of the job card to the customer and the original is kept with them after getting an endorsement from the customer that “the vehicle received with satisfaction”. There are 3-4 job cards for this vehicle. He deposed that they are ready to produce the job cards before the Forum, if it is required. This vehicle is not brought to the 2nd opposite party’s workshop 18 times for repair as alleged in the complaint. He further added that the vehicle is brought only for eight free services and he is saying this on the basis of verification of the job cards. He further told that the spare parts have been ordered for this vehicle as per VOR order. He affirmed that every time after repair, the 2nd opposite party issued bills to the complainant, copy of which is kept in file and they are ready to produce it before the Forum.
After this, the complainant filed a petition IA 13/2019 to direct the opposite parties to produce the documents including the bills and job cards of the complainant’s vehicle. Even though several postings were given for the production of these documents, they did not produce any documents before this Forum. So an adverse inference can be drawn against the 2nd opposite party and the contention of the complainant can be taken to be correct.
So, there is a clear deficiency of service on the part of the 2nd opposite party in not repairing the vehicle on time and for not arranging the spare parts and charging huge amounts for repair without issuing bills.
The complainant had produced a cash bill which is said to be issued by the 2nd opposite party which has no date or any other details of the issuing person and it is marked as Ext.A1.
Further, in order to ascertain the defects in the vehicle, the complainant had filed an application for the appointment of an expert commissioner and it was allowed. The expert commissioner filed report and it is marked as Ext.C1. In Ext.C1 report, the expert commissioner reported that from the external appearance of the vehicle, it can be seen that the vehicle has not been used for two years. Further he reported that as the battery in the vehicle was not functioning, he replaced it with a new one, filled with fuel and tried to start the vehicle. When he tried to move the vehicle, some unusual cracking noise and vibrations came out and the vehicle remained still and didn’t move even in the first gear. According to him, the power transmission system is not perfect. In order to find out whether there is any manufacturing defect in the vehicle, he wanted to inspect the internal engine parts. But as the opposite parties were not present at the time of the inspection, he did not examine the internal engine parts, crank and piston, bearings clutch etc. of the vehicle in order to find out the defects. So it can be seen that he concluded the examination only by examining the external physical features.
The opposite parties filed a petition IA 37/17 to set aside the commission report. According to them, no notice was issued to the opposite parties regarding the date and time of the inspection of the vehicle and it is a serious lapse on the part of the commissioner. Further the commissioner had gathered information regarding the difficulties in using the same type of vehicle and the non-availability of spare parts from the two drivers whom he met after inspection of the vehicle and included in his report. The commission report is based on hearsay evidence and on that ground itself, it is liable to be set aside.
The opposite parties also filed an IA to cross examine the commissioner and he was examined as CW1. On going through the deposition, it can be seen that eventhough the expert commissioner had noted some facts about the vehicle, he omitted to report the present condition of the engine and to find out whether there is any manufacturing defect.
So the IA 37/17 was partly allowed with a direction to remit the Commission Report to the same commissioner to inspect the vehicle once more and file a detailed report clarifying the defects after noting the additional points if any raised by both parties. The opposite parties were also directed to pay batta to the commissioner and to take steps. Eventhough several postings were given, no steps were taken by the opposite parties to remit back the Commission Report and to examine the vehicle in detail and so the first Commission Report which is marked as Ext.C1 becomes final and forms part of evidence.
The opposite parties in their version contended that the vehicle had run 16,800 kms. when they last saw the vehicle and so there is no manufacturing defect in it. But no evidence was adduced in support of their claim.
Eventhough necessary steps were taken by the complainant to ascertain the defects in the vehicle, the commissioner was unable to find out any manufacturing defects in the vehicle due to non-co-operation on the part of the opposite parties. Further the order to remit back the commission report and to ascertain the defects was also not complied by the opposite parties. They did not remit batta or take any steps eventhough sufficient time was given to them.
Complainant could not be made to suffer for the acts of the opposite parties. The complainant had to face a lot of harassment on account of the troubles in the vehicle just after its purchase. The complainant was forced to take the vehicle to the 2nd opposite party’s workshop time and again to remove the troubles given by it which must have caused loss in earnings to him. The opposite parties are bound to compensate the complainant for this.
In order to show that there is no deficiency of service in their part, the 2nd opposite party did not take any initiative to show that whenever the vehicle is brought for service, they returned it immediately after repair and in the case of non-availability of spare parts they made arrangements as per the available scheme. They did not produce the bills and job cards issued by them to the complainant to prove their case eventhough they affirmed that for each service they charge only nominal amount and issue computerized bills and it is available in their software. They did not produce the job cards before the Forum to show that the vehicle has been brought to 2nd opposite party’s workshop only few times and they returned it immediately after curing the defects. Accordingly the 2nd opposite party failed to prove that there is no deficiency of service on their part. On the other hand the complainant produced a bill without any particulars such as date, name and seal of the 2nd opposite party as per his contentions in the complaint which is marked as Ext.A1. So the evidence adduced by the complainant stands accepted.
So there is a clear deficiency of service on the part of the 2nd opposite party in not giving proper repair of the defective vehicle in time and arranging spare parts for which they have to compensate the complainant.
The complainant further contends that for purchasing the vehicle, he took loan from the bank and now it is accumulated and is unable to repay it because of the problems happened to the vehicle. Eventhough he is facing financial crisis, it is his duty to repay the loan amount in time. The opposite parties cannot be held responsible for the repayment of loan amount towards the bank. So we cannot give direction to the opposite parties to pay any amount towards the loan due to the bank.
It can be seen that because of the frequent problems that happened to the vehicle and due to the deficiency of service on the part of the 2nd opposite party, the complainant suffered financial loss and mental agony. Going to workshop many times for repair in connection with defects of a newly purchased vehicle causes mental agony for which the opposite parties are bound to compensate the complainant.
In the result, the complaint is partly allowed.
We direct (1) The opposite parties to carry out a thorough repair of the complainant’s vehicle and replace necessary parts for smooth running of the vehicle free of cost to the complainant’s satisfaction within one month from the date of receipt of this order failing which they are jointly and severally directed to pay an amount of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) to the complainant which is considered as an adequate amount for repairing the vehicle when compared with its value and use.
(2) The 2nd opposite party is directed to pay a sum of Rs.40,000/-(Rupees Forty Thousand only) to the complainant towards the deficiency in service on their part and
(3) The opposite parties are jointly and severally liable to pay an amount of Rs.10,000/-(Rupees Ten Thousand only) as compensation for mental agony and Rs.10,000/-(Rupees Ten Thousand only) towards cost of proceedings to the complainant.
Order shall be complied within one month from the date of receipt of this order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 15th day of June 2020.
Sd/-
V.P.Anantha Narayanan
Member(President I/c)
Sd/-
Vidya.A
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Copy of cash bill issued by opposite party to the complainant.
Ext.A2 – Copy of the certificate of registration issued by RTO, Palakkad to the complainant.
Ext.A3 series – Copy of post card sent by Canara Bank to the complainant.
Ext.A4 series(a) – Copy of notice dated 08/08/2014 issued by Canara Bank to the complainant.
Ext.A4 series(b) – Copy of notice dated 06/03/2014 issued by Canara Bank to the complainant.
Ext.C1- Commissioner’s Report dated 28/9/2018(Original)
Exhibits marked on the side of Opposite parties
NIL
Witness examined on the side of complainant
NIL
Witness examined on the side of opposite parties
DW1 – Chikku Mohan
DW2 – Arul
Cost : Rs.10,000/-
