CICILY KALLARAKKAL vs DEALER, DIVYA AUTOMOBILES

COMPLAINT for return of the purchase price of the vehicle and for compensation. The complainant is represented by her power of attorney holder P.W. 2.

THE allegations in the complaint in brief are that persuaded by the advertisement on 16.6.1995 she placed order for purchase of Jongo Jeep manufactured by the 3rd opposite party and paid Rs. 15,000/-, the balance amount of Rs. 2,99,280/- was paid by DD on 13.10.1995. At the time of booking she was told that the vehicle would be delivered within 45 days of the payment of the purchase price, but the vehicle was delivered only on 19.3.1996. She suffered loss because of the delay. Soon after the purchase defects were noted. THE vehicle did not give the mileage as was promised, when the same were brought to the notice of the first opposite party, the complainant was directed to have the vehicle examined by K.C. Saha and his team, they examined the vehicle following which same was taken to opposite party No. 3 where repairs were attended and after repairs the vehicle was delivered on 30.11.1996 at Kottayam. Later, on 11.12.1996 defects appeared and the same was repaired by the first opposite party; there was clutch complaint on 18.12.1996 the same too was repaired at Kottayam from the dealer, and on 6.1.1997 other defects were noted, the vehicle is having several defects which make it unworthy for use. THE complainant suffered loss of Rs. 2 lakhs. She sent notice to which opposite parties 2 and 3 replied. Substitution of the vehicle in such circumstance would not be feasible and, therefore, the purchase price of the vehicle has to be directed to be returned with compensation. In the version by the second opposite party, it contended, it was alleged in the complaint itself, the vehicle was purchased specifically for plying as a taxi; subsequently the same was amended to the effect that even though it was purchased for plying it as a taxi, the same is being used for the personal use of the complainant and same is her personal vehicle. The vehicle is being used for commercial purpose, the complainant is having other taxies. She has no case that the same was used for earning her livelihood. Since the vehicle is used for commercial purpose, the complainant is not a consumer. It is admitted that the complainant purchase the jeep manufactured by the 3rd opposite party, but the case that it was agreed that the vehicle would be delivered within 45 days is not true, there was no such agreement. Opposite parties 1 and 2 were dealers. The allegation that the vehicle gives only 10 kms. per litre, that it has severe jerk and get heated and other problems is not true. On 19.3.1996 and 1.7.1996 the opposite parties relinquished their dealership of manufacturer, the 3rd opposite party. Even then during the period these opposite parties repaired the vehicle of the complainant. The repairs were necessitated due to the reckless and negligent manner in which the vehicle was used. After their withdrawal as dealers complainant has direct dealing with the 3rd opposite party. The allegation that the vehicle is a sub-standard product and that it has got defects are denied and it is sought to be maintained that the defects were occasioned because of the reckless use by the complainant.

The 3rd opposite party in their version maintained that the complainant is not a consumer because the purchase was for commercial purpose. The complainant has alleged, the vehicle was purchased for plying it as a taxi and has also claimed Rs. 50,000/- as loss of income. There was no agreement that the vehicle would be delivered within 45 days of the payment of the consideration. There was a condition in the booking that the disputes would be subject to the jurisdiction of the Court at Jabalpur. The allegation as to the defect of jerk or the engine getting heated, lack of proper brake and that the vehicle gives only 10 kms. per litre are not correct or true. The vehicle was brought to Jabalpur as the party proposed to go for 4 x 4 drive instead of 4 x 2 and wanted some additional fittings. The vehicle was then taken to Jabalpur for repair. After repair the vehicle was driven from Jabalpur and was delivered. The defects noted were attended properly. After using the vehicle during the warranty period the opposite parties having attended the repairs there could be no mental agony, sufering or loss as claimed. The defects were on account of the reckless use of the vehicle by the complainant.

COMPLAINANT produced Exbts. P1 to P11, R.W. 2 the Commissioner filed Exbt. C1 report. COMPLAINANT''s power of attorney holder gave evidence as P.W. 1, on behalf of the 3rd opposite party R.W. 1 was examined. The points that would arise for consideration are : (1) Whether the complaint is maintainable ? and Whether the complainant is a consumer ? (2) Whether the vehicle has manufacturing defects ? (3) Whether the complainant is entitled to compensation ? If so, what is its quantum ? (4) Reliefs and costs ?

Point No. 1 : The contesting opposite parties would maintain, since the purchase of the jeep was for commercial purpose, the complainant is not a consumer. It is also pointed out that the complainant has no case that the purchase was for the exclusive purpose of earning the complainant''s livelihood by means of self-employment. Reliance was made on the original complaint where there was an allegation to the effect that the purchase was for the purpose of plying it as a taxi. It is argued by the learned Counsel for the complainant that the said part of the allegation in the complaint was later amended by deleting the sentence that the purchase was for the purpose of plying it as a taxi and corrected the allegation to the effect that though the said vehicle was purchased for the purpose of plying it as a taxi, it was used as a private vehicle. Amendment was moved before the District Forum, Kannur where originally the complaint was instituted. By the order of the District Forum dated 8th October, 1997 in the preliminary issue the District Forum found that it has no pecuniary jurisdiction and, therefore, returned the complaint for presentation before the State Commission, that is how the complaint came to be presented before this Commission. Copy of the order is among the records. The said order also states as to the amended complaint to the aforesaid effect. The amended complaint is not submitted and the original plaint does not show the amendment is carried out; but in the very versions by the opposite parties the said amendment is admitted. Para 2 of the version of the second opposite party states that pursuant to the application for amendment the complaint was amended to the effect that though the vehicle was purchased for plying it as a taxi, the same is being used for the personal use of the complainant. The 3rd opposite party also admitted the said fact in para 1 of its version. The complainant did not produce the amended complaint; but the fact remains that such an amendment was made and the same as indicated above is admitted by the contesting parties. Therefore, as it now stands the case of the complainant is that though it was purchased for using it as a taxi, the same is being used only for her personal purpose; it is so averred in the affidavit also. It states the vehicle is being only used for personal purpose. The complainant is the sister of P.W. 1.

NOW the question for consideration is whether this case of the complainant can be accepted. The case of the opposite parties is that, the vehicle is being used as a taxi and since the complainant does not have a case that she possesses any driving licence she cannot claim that the same is being used exclusively for the purpose of earning her livelihood by using it by herself. NOW as has noted the complaint is amended; of course the circumstance emanating from the need for amendment is relied on to show that the case of the complainant that it is being used for personal purpose cannot be accepted. P.W. 1 has sworn as to the occasion for using it for the personal purpose and the details thereof. Perhaps in the given circumstances the testimony of P.W. 1 alone may not be sufficient particularly in view of the admission made in the unamended complaint. But reliance was made by the learned Counsel for the complainant on Exbt. P3 the certificate of registration of the vehicle. He pointed out later I.A. 464/1999 was moved by the 3rd opposite party for direction to produce the original RC book, the complainant has produced the original of Exbt. P3. What is relied on is, the detailed description at page 3 of the certificate of registration wherein class of vehicle is stated O/Bus (LMV), it is stated "for private use". In short the registration book does not show that the same is registered as a taxi, on the other hand it is registred as vehicle for private use. The said material when is taken in the context of the evidence of P.W. 1, the case of the complainant in this regard becomes probable. The claim towards loss of income cannot, in the circumstance have over-riding effect. There being no other independent evidence to show that the vehicle is being used for earning profit, it cannot be said that the complainant is not a consumer; consequently it has to be held that the complainant is a consumer. The maintainability of the complaint was challenged on the ground of status of the complainant claiming that herself since uses the vehicle for commercial purpose is not a consumer. NOW as has noted, the said case of the opposite parties cannot be sustained. Therefore, this point is found in favour of the complainant. Point No. 2 : The complainant mainly relies on Exbt. C1 report and the evidence of R.W. 2 to support her case that the vehicle suffers from manufacturing defect and hence she is entitled to have a direction to return the purchase price. This is emphatically denied by the contesting opposite parties. As has already noted they maintained, if at all the vehicle shows any defect, the same is due to the reckless use of the vehicle by the complainant. At the outset one thing has to be noted, there is no specific allegation that the vehicle suffers from manufacturing defect. Of course, there is allegation to the effect that the vehicle''s condition is such that the same cannot be driven confidently in public places as it involves dangerous risk. Even assuming that the aforesaid pleading would constitute a case of manufacturing defect, the question for consideration is whether the materials produced would substantiate the said case. It may be noted that even according to the complainant the vehicle was delivered on 19.3.1996, the complaint was filed on 1.5.1997. It is submitted by the learned Counsel for the complainant that Exbts. P4, P6 and P11 would show that the vehicle has manufacturing defects. Of course the Commissioner in Exbt. C1 mentions four defects and states that the other systems are satisfactory, in general the above defects found are due to manufacturing defect. Before going into the acceptability of the said report we have to advert to the aforesaid Exbts. also. It is urged by the learned Counsel for the 3rd opposite party that it is the case of the complainant that the vehicle was taken to Jabalpur where it was attended and it was later delivered after repair at Kottayam. Exbt. P11 dated 1.11.1996 states as to the spare parts that were changed; it was after the said repair by the 3rd opposite party that the vehicle was delivered at Kottayam. Admittedly the work was attended at Jabalpur, R.W. 1, the Junior Works Manager of the 3rd opposite party in his evidence said that the vehicle was repaired at Jabalpur factory, all defects were rectified and the same was delivered at Kottayam after repair and the vehicle was driven from Jabalpur to Kottayam, the distance being 2300 kms. He says that no trouble or defect was noted during the said long trip. NOW the substitution of spares and the fact that vehicle was capable to stand such a long trip from Jabalpur to Kottayam would reveal the condition of the vehicle. The repairs were attended in November, 1996, so as on the date of the delivery of the vehicle at Kottayam it has to be taken that it did not have such defect which could be captioned as manufacturing defect. It should be noted that spare parts were substituted as could be seen from Exbt. P11. The defect of a part which could be repaired by fixing new spare parts cannot be held to be a manufacturing defect of the vehicle itself so as to call for a direction either to return the purchase price or to give a new vehicle. NOW in the said backdrop Exbt. C1 and the evidence of R.W. 2 have to be appreciated. To this Commission report, the contesting opposite parties have filed objections. The Commissioner has also appended copy of Exbt. P11. He makes a remark that defects as revealed from Exbt. P11 as the manufacturing defects of the "Mechanical Units". Those units have been replaced by new spares. So, after such repairs it cannot be said that the said defects survive. Then coming to the defects noted by the Commissioner the fourth item mentioned is the tyres were seen re-soled, he comments that the wear and tear of the tyre was disproportionate. Anyway that the tyre is re-soled by itself cannot be a manufacturing defect. But he also says that the same is due to the improper suspension alignment and uneven brake effecting. As regards the body what he says is that after the vehicle reaches 50 kms. per hour the body vibrates, he identifies the same as due to improper fixing of the alignment of the chassis. Then item No. 2 is the cooling system is "not satisfactorily efficient" as the engine warms up much on higher speed; he comments that could shorten the engine life. And as regards the brake system also what he states is, brake is "not satisfactorily efficient". These are the defects he notes; which are now relied on by the complainant to show the vehicle suffers from manufacturing defect. First of all even if what is stated by R.W. 2 is accepted at its face value, the same cannot be a basis to make a direction to return the purchase price. R.W. 2 does not say that he opened the engine or any part of the body for identifying the aforesaid defects. What he says is, that he drove the vehicle for a distance and then discovered the said defects. He does not say that these defects are not curable by repair or by substitution of spares. We are not satisfied that the defects noted by the Commissioner in the facts and circumstance of the case to which advertance has already been made would constitute manufacturing defect so as to direct replacing of the vehicle or return the purchase price. All that to be directed in such circumstances, is to repair the vehicle and make it without defect, so that the same could be plied. Point found accordingly. Point No. 3 : In para 5 of the complaint the complainant categorises the loss. What could be observed in this connection is, no independent evidence is adduced to substantiate the said loss. Even the evidence of P.W. 1 is not capable of supporting the aforesaid loss mentioned in para 5 of the complaint. It should be noted that since the complainant''s case in the amended form is that the same is being used for her personal purpose, the loss, if at all, could only be for engaging another vehicle for her use during the period when the vehicle was garraged. Of course the vehicle was garraged for sometime but no material is produced to show as to how much she had to incur for her travel. Compensation could be awarded only when there is material for quantification also. It is not enough for a party to say he sustained loss, the party has to prove both loss and also the quantification. Since the complainant failed to establish the same, this point is found against the complainant. Point No. 4 : In view of the findings in point Nos. 1 and 2, the only relief to which the complainant is eligible is a direction to the opposite parties to repair the vehicle; to remove the defects by repair and substitution of defective spares and make it worthy of being used. Now the opposite parties 1 and 2 stated in their version that later their dealership was stopped. At the time of transaction, and thereafter the opposite parties 1 and 2 continued to be dealer of the first opposite party. Though R.W. 1 said that the vehicle was delivered at Kottayam since they have a dealer there from that alone it cannot be inferred that opposite parties 1 and 2 ceased to be the dealers of the 3rd opposite party. None on behalf of opposite parties 1 and 2 has given evidence. R.W. 1 does not state that the dealership of the opposite parties 1 and 2 was stopped. In the facts and circumstances of the case direction has to be to given to opposite parties 1 to 3 to remove the defects as indicated above. In view of the fact the complainant succeeds in part the complainant is entitled to costs in proportion to the same; we fix the same at Rs. 1,500/-. Point found accordingly. In the result the opposite parties are directed to rectify and remove the defects of the vehicle by repair, if need be by substituting spare parts within a period of three months from the date of receipt of the copy of this order. The complainant shall be entitled her costs which we fix at Rs. 1,500/-. Complaint disposed of.