BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 19/11/2011

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 644/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant purchased a Mahindra Gio Compact Cab from the 2^nd opposite party on 16-05-2011 at a price of Rs. 1,95,000/-. One year or 60,000 kilometers warranty was provided for the vehicle. The vehicle was purchased for earning his livelihood by means of self-employment. He availed financial assistance from the 3^rd opposite party to purchase the vehicle. The vehicle started showing various defects including clutch complaint, gear complaint, excess vibration loosing control while taking curves etc. Though the vehicle was repaired on 10 different occasions, the above complaints persisted. So, the complainant had to procure personal loan to remit the installments in the loan account. The recurring defects of the vehicle is due to its inherent manufacturing defect. The 1^st and 2^nd opposite parties failed to rectify the defects of the vehicle. The complainant is entitled to get refund of the price of the vehicle together with a compensation of Rs. 1 lakh and costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The vehicle purchased by the complainant is a commercial vehicle and so the complaint is not maintainable in this Forum. The 1^st opposite party has no privity of contract between the complainant and the 1^st opposite party. It is learnt from the 2^nd opposite party that the service of the vehicle had been attended to on 7 times by various dealers of the 1^st opposite party. There is no inherent manufacturing defect in the vehicle as alleged by the complainant. There is no deficiency in service on the part of the 1^st opposite party. The complainant is not entitled to get any of the reliefs against the 1^st opposite party.

3. The contentions of the 2^nd opposite party is as follows :-

The complainant is not a consumer as defined in Section 2 (1)(d) of the Consumer Protection Act. The vehicle was attended to by the 2^nd opposite party only on 21-05-2011 and the 2^nd opposite party did the 1^st service as per the service manual. Thereafter, the complainant has not reported to the 2^nd opposite party for service of the vehicle. There is no deficiency in service on the part of the 2^nd opposite party. The complaint is liable to be dismissed.

4. The defense of the 3^rd opposite party :-

The 3^rd opposite party sanctioned a loan to the complainant to purchase the vehicle. As per Clause 26 of the loan agreement dated 30-04-2010 executed between the complainant and the 3^rd opposite party if dispute arises between the parties of the agreement it shall be settled by arbitration. The complainant has no authority to file any complaint in this Forum. The complaint deserves dismissal.

5. The complainant was examined as PW1 and Exts. A1 and A2 were marked. Ext. X1 series also was marked. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the counsel for the parties.

6. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get refund of the price of the vehicle from the opposite parties?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

7. Point No. i. :- Admittedly on 16-05-2011, the complainant purchased a Mahindra Gio Compact Cab from the 2^nd opposite party which was manufactured by the 1^st opposite party at a price of Rs. 1,95,000/-. The 1^st opposite party offered one year or 60000 KMS. warranty whichever occurs earlier from the date of delivery of the vehicle to the original purchaser evident from Ext. A2 terms and conditions of warranty. According to the complainant, time and again, he had to approach the various dealers of the 1^st opposite party to get the defects of the vehicle repaired. The learned counsel for the complainant relied on Ext. X1 series ( 6 in Nos.) service details to substantiate that the vehicle suffers from inherent manufacturing defect. On the contrary, the opposite parties vehemently contended that the complainant failed to prove the allegations in the complaint and there is no expert opinion on record to substantiate the contentions of the complainant.

8. Admittedly, the complainant approached the service centers of the 1^st opposite party to repair and service the vehicle on the following occasions :

9. Apart from the above complaints, there is no evidence before us to show that the vehicle suffers from inherent manufacturing defect. Moreover, there is no evidence on record to show that the defects attended to by the various dealers of the 1^st opposite party cannot be rectified by replacement of the relevant part. In that case, the 1^st opposite party is liable to replace the defective parts only, in view of the decision rendered by the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (2006) 4 SCC 644. In the instant case, we are at a loss to find any deficiency in service on the part of the opposite parties.

10. During evidence, the complainant admitted that during the pendency of this complaint, the 3^rd opposite party has seized the vehicle from the possession of the complainant. Since the 3^rd opposite party seized the vehicle from his possession, if at all, this Forum found that the complainant is entitled to get refund of the price of the vehicle, the complainant is to return the disputed vehicle to the 1^st opposite party. Admittedly, it is impossible on his part. In all respects, the complainant failed to establish his contentions in this Forum against the opposite parties. We are only to dismiss the complaint. Ordered accordingly.

Pronounced in the open Forum on this the 21^st day of December 2013.

Sd/- A. Rajesh, President. Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

=========