Minnal Mani vs Proprietor Villianur Associates

THE complainant is the appellant. The appellant/complainant filed the complaint against the opposite parties for recovery of Rs. 9,000 as compensation and change of fork and chassis of the vehicle, in default to pay Rs. 72,400 and Rs. 30,000 towards compensation.

THE case of the complainant is as follows: On 9.6.2002, the complainant purchased a Bajaj auto bearing Registration No. PY -01 -S7533 from the Villianur Associates. At the time of purchase of vehicle, the rate meter was not provided and the same was provided after one month. During the one month period without riding the vehicle, the complainant lost income about Rs. 300 per day. From the date of purchase, the fork was pulling towards right hand side, unable to ply the vehicle and for the reason of repair, the vehicle was kept in the workshop for 20 days and caused loss of income. The report of the mechanic, who rectified the fork will show that the defect is not in the fork but the chassis has to be changed. The complainants right shoulder was affected and he was unable to ply the vehicle systematically and he failed to repay the loan obtained from PADCO till date. If the opposite party rectified the defect within a specified period, the complainant could have released from the above said problem. For the above said reasons, the complainant is put to loss and mental agony. Therefore, the opposite parties may be directed to pay Rs. 9,000 as compensation for not providing the auto meter for a period of one month from the date of purchase. The opposite parties may be directed to change the chassis and rectify the fork or change the vehicle in default to pay Rs. 72,400 paid for the vehicle. The opposite parties may be directed to pay Rs. 30,000 as compensation. The case of the 1st opposite party is as follows: The complaint is not maintainable. It is true that the complainant has purchased the auto mentioned in the complaint. The allegation that the auto fare meter was delivered to the complainant after one month is false. The complainant selected the auto from the opposite party on 9.6.2002. The vehicle was registered on 10.6.2002. The complainant approached this opposite party after the office hours and requested to deliver the vehicle on the same day, since the next day, Tuesday is weekly holiday for 1st opposite party. Based on the request made by the complainant, the 1st opposite party delivered the vehicle with the condition that the auto fare meter will be delivered on the next working day, since the spare parts department was closed when the auto was delivered. The complainant had taken delivery of the auto at 7 p.m. on 10.6.2002. The auto spare meter was delivered on 12.6.2002. The claim of the complainant that he has not run the auto for one month and due to the same, he had incurred huge loss to the tune of Rs. 9,000 is baseless. The complainant had given his vehicle for first free service after 13 days of taking delivery of the vehicle. The vehicle should ply on road only after payment of road tax and obtaining fitness certificate. The complainant had violated the rules and he had taken fitness certificate on 1.7.2002. The complainant was using the vehicle from the day of purchase. The claim of the complainant that the fork is pulling towards right hand side from the day of purchase is false. The complainant obtained fitness certificate on 1.7.2002 from the Transport Department after test ride by the Motor Vehicles Inspector. Since there was no defect in the auto, the fitness certificate was issued by the Transport Department. The vehicle was not having any manufacturing defect as alleged by the complainant. The complainant brought the vehicle for the second service on 5.7.2002. Warranty does not cover wear and tear of the parts and for the damages occurring due to the improper use of the vehicle. Though the vehicle was without any manufacturing defect, as a special case and as a matter of goodwill, the 1st opposite party had replaced the entire fork assembly on 26.8.2002 to satisfy the complainant and delivered the vehicle on the very same day. The vehicle was tested by 2nd opposite party, who is technically qualified. The allegation that the auto was in the workshop for nearly 20 days is not true. The 1st opposite party furnished the details of the services carried out to the complainants auto : Sl. No. Kms Run Job Card No. Date of Service Date of delivery No. of days in the workshop 1. 517 S14476 23.6.2002 23.6.2002 - 2. 1464 Q5674 5.7.2002 5.7.2002 - 3. 2102 S14988 27.7.2002 28.7.2002 One day

4276 Q6027 26.8.2002 26.8.2002 -

5398 S15616 2002 11.2002 Five days 6. 5482 S15945 26.2002 26.2002 - 1st opposite party submits that all the services from Serial Nos. 1 to 4 and 6 had been done and the vehicle was delivered on the same day. The vehicle was ready on 6.2002 but the complainant had not taken the delivery in time. There is no deficiency in service. The claim of the complainant that the vehicle pulls towards right hand side is not true. The complainant had given the vehicle for service on 26.2002 after 106 days from the date of delivery. The complainant was advised by letter dated 28.2002 to contact 1st opposite party to rectify any defect. The complainant has not contacted 1st opposite party afterwards. The claim of the complainant to replace the vehicle and claim for damages is unreasonable. The allegation that the complainant suffered injury in his right shoulder due to false fork pulling. The complainant is still using the vehicle. 2nd and 3rd opposite parties are one and the same concerned viz., Bajaj Auto Ltd. The auto is in tip -top condition fit for road use and there is no defect. There is no cause for replacing of the alleged defect or to change the vehicle. The 3rd opposite party is unnecessary party to the proceedings. 4. The case of the 2nd opposite party is as follows: There is no specific allegation against this opposite party. This opposite party is not the manufacturer of the auto and he is not a dealer. The role of this opposite party is that whenever any complaints that could not be rectified by the dealer, the same would be referred to the 2nd opposite party for rectifying the defects. The opposite party has no relationship of any kind with the complainant. There is no privity of contract between the complainant and 2nd opposite party. The 2nd opposite party is unnecessary party to the proceedings. The 3rd opposite party filed separate counter resisting the claim of the complainant. 5. On the side of the complainant, C.W. 1 and C.W. 2 were examined and Ex. C1 to C2 were marked. On the side of the opposite party Exs. R1 to R9 were marked. On (sic.) complainant is a consumer. The District Forum has given a finding that there is no deficiency in service on the part of the opposite parties and ultimately, the complaint was dismissed without costs. Aggrieved by the said order, the complainant has come forward with this appeal. M.P. No. 38 of 2006 6. The petitioner has filed this application for sending the vehicle chassis for laboratory examination.

IT is alleged in the affidavit that the complainant examined one Segar as C.W. 2 who is a private mechanic and that since he was not a qualified mechanic, the District Forum has not considered this evidence and that the District Forum has given a finding that the complainant had not taken steps to send the vehicles for laboratory examination and that the complainant came to know about Automotive Research Association of India for the examination of automobiles only on perusal of the order of the District Forum and that due to his inadvertence, he was unable to take necessary steps to send the vehicle chassis for the laboratory examination and that, therefore, he has filed this petition for sending the chassis for the examination by Automotive Research Association of India.

THE opposite parties filed counter stating that the vehicle was not sent to any expert immediately after the purchase or after the alleged defect was found and that the complainant had not taken any steps for proper analysis and that the vehicle is four years old and was subject to wear and tear and that it is highly impossible to ascertain whether the vehicle has manufacturing defect and that the appellant already argued his case and that when the matter was posted for reply of the respondent, the present petition is filed. The points for determination in the appeal are: (1) Whether there is any deficiency in service on the part of the opposite parties? (2) Whether the complainant is entitled to compensation as claimed in the complaint? Point Nos. 1 and 2:

IT is admitted that the appellant/complainant purchased the auto bearing Registration No. PY -01 -S 7533 from the 1st opposite party. Ex. C1(1) is the Certificate of Registration dated 10.6.2002. Ex. C1(2) is the Certificate of Fitness dated 1.7.2002. Ex. C3 is the Certificate of Insurance. Ex. C4 is the Permit issued by the State Transport Authority, Pondicherry dated 29.8.2002 wherein the meter number is noted as E 96044.

IT is the case of the complainant that at the time of purchase of the vehicle, rate meter was not provided and that the same was provided after one month and that, therefore, he sustained loss. The complainant has claimed the loss at Rs. 300 per day totalling to Rs. 9,000. The opposite parties contend that there was no delay in handing over the meter to the complainant. It is contended by the opposite parties that the complainant has taken delivery of the auto on 10.6.2002 and the meter was delivered on 12.6.2002 i.e., the next working day. The case of the complainant that there is delay in delivering the meter bristles with contradictions. Though it is alleged in the complaint that the meter was delivered after one month, in proof affidavit, the complainant has stated that the meter was delivered after 15 days from the date of purchase and that, therefore, he has restricted the loss of income to Rs. 4,500. In the evidence, the complainant as CW1 has given another version. He has stated in his evidence that on 31.7.2002, the rate meter was provided i.e., after 20 days from the date of purchase. When the attention of the complainant was drawn to his proof affidavit, he has stated that the version stated in the proof affidavit is correct statement. The complainant has also filed Certificate of Verification under Ex. C2 wherein the auto meter number is given. The above certificate is issued to one Govindraj, whose meter number is 95516. The above certificate is dated 10.7.2002. CW1 has admitted that Ex. C2 has no relevancy to the complaint. He has admitted that he got the Certificate of Verification on 28.6.2002. If the above certificate is produced, it would disclose the date of verification. But, the complainant has not produced the above certificate relating to the auto owned by the complainant. On the other hand, he has stated that he could not say who is in possession of the certificate of verification for the auto meter. It is significant to note that the complainant issued notice, Ex. C5 to the opposite parties on 2.9.2002, alleging that the auto suffers from certain defects. But, it is not stated in the above notice that there was delay of 15 days in delivering the meter to the complainant. If really there is any truth in the case of the complainant that there was undue delay in delivering the meter, he would have definitely stated the said facts in Ex. C5. On the other hand, the opposite parties have filed certain documents to show that they were in possession of meter during relevant date and that there could not have been any delay in delivering the meter to the complainant. Ex. R1 is the Delivery Challan for purchase of meters by the opposite parties which would show that they placed orders on 19.5.2002 for purchase of meters bearing E 96036 to E 96045. Ex. R2 is the Stock Ledger relating to auto fare meters. Relying upon the above documents, the District Forum has given a finding that there was no delay in delivering the meter to this complainant. As already stated, the complainant has not come forward with a consistent case on this aspect. The complainant had ample opportunities to allege in the notice. Ex. C5 that the meter was delivered only after 15 days or 20 days from the date of purchase. In veiw of the above facts, the version of opposite parties that there was no delay in delivering the auto fare meter to the complainant appears to be acceptable. The findings of the District Forum on the aspect of this case do not call for any interference from this Appellate Forum. It is contended by the complainant that from the date of purchase, the fork was pulling towards right hand side unable to ply the vehicle and that the vehicle was kept in the workshop for 20 days for repair. It is contended by the opposite parties that the complainant obtained Fitness Certificate on 1.7.2002 after the vehicle had run for more than 1000 kms. and that the complainant obtained the Fitness Certificate from the State Transport Authority after the vehicle was tested by the Motor Vehicle Inspector and that since there was no defect in the auto, the Fitness Certificate was issued by the Transport Authority and that the warranty does not cover wear and tear of the parts and for the damages occurring due to improper use of the vehicle. The opposite parties have also filed documents to show that the minor defects were rectified when the vehicle was brought for free services. Ex. R3 will show that for the first time the vehicle was brought for free service on 23.6.2002. In the column : ''C.O. level'' it is stated, ''Fork one side check'' Ex. R4 will show that the vehicle was brought for free service on 5.7.2002. The defects reported are noted in the column, Defects Reported, ''Cable Check''. Ex. R5 relates to the services effected on 21.7.2002 Ex. R6 is the Service Card dated 25.8.2002. In another Job Card dated 26.8.2002, the defects relating to Fork check are noted. It is admitted that the vehicle was brought for service on 6.9.2002. Ex. R8 is the Service Card issued for the said services. Ex. R9 dated 26.9.2002 will show that certain repairs were effected. C.W. 1, the complainant has admitted that Ex. R8 is the Job Card and that quick service was done on 26.8.2002 as per Ex. R7. The District Forum has held that the Motor Vehicle Inspector has tested the vehicle and gave Certificate of Fitness under Ex. C1(2) and that there are no defects in the vehicle. It is alleged in the grounds of appeal that the Fitness Certificate was issued without verifying the road riding condition of the vehicle and that only chassis and engine number will be verified. It is, however, admitted by the complainant in the grounds of appeal that the entire Fork assembly was replaced by the opposite party on 26.8.2002. In the notice, Ex. C5 also, the complainant has admitted that the fork was replaced. But the fact that the opposite party has replaced the fork assembly on 26.8.2002 has been suppressed in the complaint. The complainant has set out a new case by examining CW2, a mechanic. C.W. 2, the mechanic has stated in his affidavit that the defect is not in the fork and that the chassis is in bend. It is contended by the complainant relying upon the evidence of CW2 that the chassis has to be replaced and that the vehicle suffers from manufacturing defect.

THE evidence of C.W. 2, the mechanic, who claims to have repaired the vehicle cannot be relied upon as he is not the qualified mechanic. He has admitted in his evidence that he has not passed any certificate course for mechanic and that he has studied up to 9th standard and that he has tested the chassis bend and he told the complainant that the vehicle had defects. He has admitted that he has not undergone any training programme to repair the vehicle. As CW 2 is not a qualified mechanic, no reliance can be placed upon his evidence for holding that the vehicle suffers from manufacturing defect.

THE complainant had not taken any steps to send the vehicle for laboratory test. The District Forum has held that the complainant has not sent the chassis to any laboratory like Automotive Research Association of India and got their Technical Report. As the complainant has come forward with a specific case that the vehicle is suffering from manufacturing defects, he ought to have taken steps to send the chassis for laboratory test. But after lapse of four years, the complainant has filed M.P. 38 of 2006 for sending the vehicles chassis for laboratory test. The application is highly belated. It would be impossible to ascertain the fact whether the chassis suffers from manufacturing defect after lapse of four years. Therefore, no useful purpose would be served at this belated stage if the vehicle is ordered to be sent for laboratory test. It is admitted that the auto had run not less than 25,000 kms. C.W. 1 has admitted that he has been plying the vehicle till date. In the above circumstances, the contention of the complainant that the chassis has to be sent for laboratory test cannot be entertained. Therefore, the above application is dismissed. The complainant failed to prove that the vehicle is suffering from manufacturing defect. There are no material to show that the vehicle was kept in the workshop for about 20 days for repair. Therefore, we hold that the complainant is not entitled to the relief prayed in para 2 of the prayer column. The complainant has also claimed compensation. It is alleged in the complaint that the complainants right shoulder was affected and he was unable to ply the vehicle and that he failed to repay the loan. To substantiate the said case, the complainant has filed Ex. C19 and Ex. C20. Ex. C19 is the X -ray and Ex. C20 is the certificate issued by the doctor. It is stated in the above certificate that the patient developed problem due to driving of auto -rickshaw which is dragging to the right. We fail to understand as to how the doctor is competent to state that the patient developed pain only due to auto driving. The complainant would have sustained pain in the shoulder due to some other reasons. The above certificate will not establish that the complainant is having pain and suffering only due to auto driving. Further, the above certificate was issued on 9.6.2003. The complaint was filed before the District Forum on 30.10.2002. C.W. 1 has admitted in his evidence that the X -ray was taken on 7.8.2004. It is doubtful whether Ex. C19 is related to the opinion given under Ex. C20. For the above reasons, we hold that the complainant is not entitled to any compensation for injury and mental agony.

THE complainant failed to establish that the auto suffers from manufacturing defect. Therefore, we hold that the complainant is not entitled to any relief. We see no ground to differ from the view taken by the District Forum in negativing the claim of the complainant. We hold that there are no merits in the appeal.

IN the result, the appeal is dismissed. The order of the District Forum is confirmed. The parties are directed to bear their respective costs. Appeal dismissed.