State Consumer Disputes Redressal Commission
M/S. Cheran Automobiles vs Akshayakumar K.S, on 10 October, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/258 (Arisen out of Order Dated 30/09/2011 in Case No. CC/127/2011 of District Thiruvananthapuram) 1. M/S CHERAN AUTOMOBILES CAPE ROAD,NEERA MANKARA,KAIMANAM TRIVANDRUM KERALA ...........Appellant(s) Versus 1. AKSHAYAKUMAR.K.S AKSHAYA BHAVAN,KANNARAVILA,NELLIMOODU.P.O,NEYYATINKARA TRIVANDRUM KERALA ...........Respondent(s) BEFORE: SMT.A.RADHA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.258/12
JUDGMENT DATED : 10.10.12
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
M/s. Cheran Automobiles,
Cape Road, Neeramankara,
Kaimanam, Thiruvananthapuram : APPELLANT
(By Sri. Advs. S. Ajith & others)
Vs
Akshayakumar K.S,
Akshaya Bhavan, Kannaravila,
Nellimoodu P.O., Neyyattinkara,
Thiruvananthapuram : RESPONDENT
(By Sri. Advs. B. Vasudevan Nair, & V.R. Renu)
JUDGMENT
SMT. A. RADHA : MEMBER Aggrieved by the order passed by the CDRF, Thiruvananthapuram in CC No.127/2011 the opposite party came up in appeal. The Forum below directed the opposite party to replace the vehicle in dispute with a new defect free one of the same model and same colour and also for compensation of Rs.10,000/-, with cost of Rs.1,500/-. The non compliance of the order the complainant will also be entitled for 12% interest till realization.
2. In brief, the complainant purchased a Hero Honda Glamour FI Black motor cycle on payment of Rs.67,195/- on 31.3.11. It is the allegation of the complainant that he was not supplied with the vehicle selected by him. Due to the sound and oil leakage, the complainant returned the vehicle to the opposite party (dealer) on 4.4.11 to get it replaced. On 6.4.2011 the vehicle was returned after repair to the complainant. Again due to the persisting defects on 11.04.11 the complainant approached the opposite party and handed over the vehicle to rectify the defect. It is the definite case of the complainant that he was supplied with a vehicle which was not selected by him. The chasis number and the engine number were different and delivered a defective vehicle. This act of the opposite party caused financial loss and mental agony. The complainant alleging unfair trade practice filed this complaint to repay his money and also for compensation and cost.
3. The opposite party filed version admitting the sale of vehicle of Hero Honda Glamour FI Black motor cycle. The complainant paid Rs.59,015/- towards the cost of the vehicle. It is also admitted that as per the request of the complainant a Hero Honda Glamour FI Black motor cycle was registered and at the time of delivery the complainant accepted the vehicle with full satisfaction. On 4.4.2011 though the complainant approached the opposite party alleging defects and demanded to get another new vehicle, it is asserted in the version that there had no defects, in the vehicle and the defects alleged were already rectified and returned the vehicle on 6.4.2011. Further alleging defect in the vehicle the complainant brought the vehicle on 11.04.2011 and refused to take back the vehicle. The opposite party wrote a letter dated 25.04.2011 to the complainant to take delivery of the vehicle. It is stated that the vehicle was free from defects and it is also asserted that the complainant filed this complaint in order to malign the reputation of the opposite party who undertook sales around 700 vehicles in a month. The vehicle was having two years warranty and any complaints including electrical or mechanical engine defects would be carried out free of cost during the warranty period. It is also stated that there is no unfair trade practice or deficiency in service on the part of the opposite party.
4. The complainant was examined as PW1 and documents marked as Exts. P1 to P6. No oral evidence on the part of the opposite party. Affidavit filed and documents marked as Exts.D1 to D3. The Forum Below came to the conclusion that there is unfair trade practice on the side of opposite party as they have not supplied the vehicle booked and selected by the complainant. The complainant was not satisfied with the vehicle delivered to him which caused mental agony and inconvenience and in order to compensate the Forum Below allowed the complaint by directing replacement of the vehicle with compensation and cost.
5. The counsel representing the appellant submitted that the complainant took delivery of the vehicle with full satisfaction on 31.03.2011. The complainant returned the vehicle on 4.4.2011 alleging defect in the vehicle and also oil leakage which was rectified by the appellant and returned on 6.4.2011, again with the same complaint the complainant brought the vehicle and entrusted the vehicle with the opposite party on 11.4.2011 and he refused to take back the vehicle. The counsel urged that even if there is any defect in the vehicle it will be rectified free of cost during the warranty period of two years. Further the improper use of vehicle would create noise and smoke while raising the gear. There had no compulsion on the side of the appellant upon the complainant to take the vehicle and vehicle was accepted with full satisfaction. The counsel also pointed out that the complainant had not taken any expert commissioner to examine the vehicle. There is no expert opinion regarding the defects in the vehicle and the appellant is not liable to pay any compensation. The complainant had not complied Sec.13 (1) (c) of the Consumer Protection Act which is a mandatory provision while alleging defects in the vehicle. He also brought to our notice the Apex Court decision laid down in Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra, II (2006) CPJ 3 (SC) and also the decision of Hon'ble National Commission in Seema Gandhi Vs. Maruti Suzuki India Ltd. In the cited cases, it is the complainant to prove that the vehicle suffered from any manufacturing defect, but the complainant chose not to examine any expert, nor he made any request to the Forum for appointing a technical expert. In this case, the vehicle was producing noise, smoke and oil leakage which were not examined by the expert commissioner. In the absence of expert opinion the allegation of defect in the vehicle is to be discarded and the complaint is to be dismissed.
6. The counsel for the respondent submitted that the appellant wilfully committed unfair trade practice by delivering the defective vehicle instead of the earlier selected vehicle by the complainant. After payment the respondent took delivery of the vehicle and at that time only it came to his notice that the vehicle supplied to him was not the one selected by him. On assurance given by the opposite party the respondent/complainant took delivery and on the very next day itself he found that the vehicle was defective and returned the vehicle to rectify the defects on 4.4.2011. The vehicle was taken back after rectifying the defect on 6.4.2011 and as the defect was persisting on 11.4.2011, the vehicle was again entrusted to the opposite party. The strong contention raised by the counsel for the respondent is that while booking the vehicle an application form was filled up showing chasis number and engine number but on delivery both the chasis number and engine number were different. At the time of taking evidence, a petition was filed to direct opposite party to produce the original application form which was submitted by the complainant. The opposite party failed to produce the said document and stated that they were not in the habit of keeping the application form as they enter the data directly in the computer and expressed inability to produce the application form. The counsel vehemently argued that the non-production of the filled up application form having the chasis number and the engine number was merely to conceal the facts and an adverse inference had to be taken in the matter. To substantiate his case the complainant produced Ext.P6 wherein the owner's name was erased and written the complainant's name. He also pointed out that the opposite party made alteration in the service book. It is a deliberate attempt made by the opposite party and no contra evidence is produced by the opposite party to deny the allegation. It is also pointed out that the chasis number and engine number also erased and corrected which could be done by the opposite party (dealer) alone. The vehicle purchased on 31.03.2011 and was in the custody of the opposite party from 11.4.2011 onwards. It is not feasible for the complainant to take the expert commissioner as the vehicle was in the custody of the opposite party. The manufacturer was not made a party as the dealer alone made the alteration in the engine number and the chasis number and the change of vehicle was exclusively within the parameters of the opposite party alone. The complainant had a strong case that the selected vehicle was issued to some one else and a defective vehicle was delivered to the respondent. This is a clear unfair trade practice on the part of the opposite party. The counsel also relied on the decision in the case of MRF limited Vs Jagdish Lal and another (1994) 4 SCC 315 wherein Sec 13(1) (c) cannot be made applicable as the complainant was not in possession of the tyre and tube and there is no material to show that the appellant had returned the same to the complainant. In the instant case, the vehicle was with the appellant and the procedure prescribed u/s 13 (1) (c) of the C.P Act was not applicable and was not being followed. Matter being so, it is the prime duty of the appellant to take the expert commissioner and to satisfy that the vehicle is a defect-free one. In the absence of such act on the part of the appellant and also the vehicle which was in the custody of the appellant, the burden is on the part of the appellant to prove the vehicle is defect-free. The counsel also submitted that the complainant had already paid the cost of the vehicle and even now the vehicle was with the opposite party and prayed for return of money and compensation for the mental agony caused to the complainant.
7. Heard both counsels in detail. We have gone through the documents on record and also verified the service book in original. The allegation of the complainant was that he was issued with a defective vehicle rather than the selected one. He also urged that the application form contained another chasis number and the engine number which was entrusted to the opposite party on registration. Even after filing the petition to produce the application form the opposite parties avoided it raising vague reasons. This act of the appellant points out to the credibility and goes in favour of the complainant. Further on verification of the original service book we found that as alleged by the complainant the erasing is clear in the name, engine number and chasis number. The opposite party has no answer to this allegation also. The other contention raised by the complainant is that the vehicle is having smoke, noise and oil leak which also leads us to the contention raised in the version of the opposite party that they had rectified the defect on 6.4.2011. We also take into consideration regarding the contention in the version that ?WdU^,a HABfa =CT8UdTCN #EF_[geUCWk Hero Honda Glamour F.I Black Motor cycle ETI<^ C1UHapM [/Ba8UeW[tvUDW^ 5DUELU HABfa =CT8UdTCN =XMjATBU Hl8U/bW[*TtT7a $\gTK[f Hero Honda Glamour F.I Black Motor cycle [[*gpUBUeWm8a which also leads to the preponderance of probability that the opposite party delivered a vehicle which was not selected by the complainant. Hence we find clear unfair trade practice on the part of the opposite party. Even though the complainant prayed for the return of money, the Forum below directed to deliver a defect-free vehicle of the same model and same colour. Immediately after the registration of vehicle the respondent/complainant informed and brought back the vehicle with defects. However, the respondent dissatisfied with the performance of the vehicle entrusted the vehicle with the appellant and insisted to return the amount paid by him as sale price to be refund. Even now the vehicle is with the appellant and appellant was reluctant to prove that the vehicle is defect-free. The obligation of the manufacturer/dealer is only to repair/replace any part of the vehicle found to be defective even during the warranty period, free of charge, the question of replacement of the vehicle with new vehicle by the Forum below is not justified. The observation made by the Supreme Court in Indochem Electronic Vs Addl. Collector of Customs 2006 (3) SCC 721 "Observed that it was the duty of the suppliers to attend deficiencies immediately and if the supplier was enable to attend to the deficiencies and malfunctioning of the system soon after installation, it would amount to deficiency in service. It was also held that in the light of the specific power u/s 14(1)(c) of the aforesaid act damages equivalent to price of goods could be awarded, despite the provisions of S.12(3) of the Sale of Goods Act, 1930, as the provisions of the 1986 Act are in addition to and not in derogation of any other provision of law".
In this case, the petitioner had not taken the vehicle from the dealer even after they have informed the vehicle has no defect. The appellant had not proved in evidence that the vehicle is defect-free.
Referring to the Hindustan Motors Ltd. Vs N. Siva Kumar 2000 (10) SCC 654 and in the case of Tata Engineering & Locomotive Co. Ltd Vs. Gajanan Mandrekar(1997)5 SCC 507, the court directed the total amount with interest, compensation and cost to be paid to the purchaser. So also these facts are considered by the Supreme Court in Anantharam C. N. Vs Fiat India Ltd. and Others 2011 (1) SCC 460. Placing reliance on the above decisions we find it is appropriate to return the cost of the vehicle to the complainant. In such circumstance, the order passed by the Forum below does not appear to be reasonable.
8. Further the adverse inference can be taken in this case also. The burden of proof is on the part who makes any complaint. In this case, the vehicle is left with the appellant from the very beginning itself and it is an admitted fact by opposite parties. To prove the defects by any technical expert is on the part of opposite party is a relevant factor to be considered and adverse inference is to be taken in this case. So in the absence of satisfactory reasons for not taking the 'technical experts' opinion we find that the respondent is to be compensated appropriately. Under the facts and circumstance of the case we modify the order passed by the Forum below and direct the appellant to pay the cost of vehicle with compensation and cost.
In the result, appeal is dismissed. Placing reliance of the above Supreme Court decisions this Commission is inclined to direct to the appellant/opposite party to refund Rs.67,195/- along with 9% interest and compensation of Rs.10,000/- and the cost of Rs.1,500/- failing which the amount shall carry interest at 12% per annum from the date of the order till payment.
Office is directed to send a copy of this order to the Lower Forum with the LCR.
A. RADHA : MEMBER
CHANDRA DAS NADAR: JUDICIAL MEMBER
Da
[ SMT.A.RADHA] PRESIDING MEMBER