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The Sales Manager, M/s.Popular Vehicles & Services Ltd, Adoor Branch & Another v/s Shaiju.P. Mathew & Another

    Appeal No. 494 of 2016

    Decided On, 18 July 2019

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. T.S.P. MOOSATH
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. A. BEENA KUMARI
    By, MEMBER

    For the Appellants: .M/s. Sheriff Associates, Suja Madhav, & Advocates. For the Respondents: --------



Judgment Text

T.S.P. Moosath :Judicial Member

Opposite parties 2 & 3 CC.No.68/2015 on the file of the Consumer Disputes Redressal Forum, Pathanamthitta, in short, the district forum has filed the appeal against the order passed by the forum by which they along with the first opposite party were directed to replace the steel wheel with an alloy wheel of the same specification as that of the other four regular alloy wheels to the complainant, to pay compensation of Rs 20,000/- and to pay cost of Rs 3000/- to the complainant.

2. The averments contained in the complaint are in brief as follows. The complainant is an engineer by profession who booked a new brand CIAZ ZDE PLUS Model Sedan Car manufactured by the first opposite party through the second opposite party and he paid an amount of Rs 12,61,632/- on 13.02.2015 against an invoice dated 31.01.2015 from the third opposite party. Hence the complainant is a consumer of the opposite parties. According to the complainant when the third opposite party delivered the vehicle on 13.02.2015 the said vehicle was provided with an ordinary wheel. He further stated that this model of a latest luxury vehicle uniformity of the wheel is quite essential and inevitable because if any defect happened in any of the running tyre the stepney tyre is to be replaced for the necessary running purposes. If the ordinary wheel is replaced instead of the alloy wheel neither the vehicle looks nice nor the travelling of the vehicle will be smooth. The complainant approached the opposite party several times and pointed out this deficiency and demanded for the fifth alloy wheel. It is further stated that the first opposite party never published any details with regard to the variations of the stepney wheel either in medias or in the brouchers. The complainant is entitled to get uniform wheels for his vehicle. According to the complainant, the act of the opposite parties is coming under unfair trade practice and deficiency in service and opposite parties is liable to pay compensation to the complainant. Hence the complainant filed this case before this forum to direct the opposite parties for providing an additional stepney alloy wheel for the vehicle and compensation.

3. The first opposite party filed version raising the following contentions. According to the first opposite party the complainant is not a consumer as per Consumer Protection Act 1986 and this complaint is not maintainable either in law or in fact. It is contended that this opposite party is only a manufacturer of MarutiSuzuki range of vehicles but does not sell the same to any individual customers directly. The complainant had purchased the vehicle in question after having mutually settled the terms and conditions of sale, the form of order booking form executed with opposite parties 2 & 3. There is no privity of contract between the complainant and the opposite party. According to him, the complainant received the vehicle after signing delivery checklist and after expressing full satisfaction. It is very specifically mentioned in the brochure supplied to the complainant at the time of purchase of the vehicle stating that “ the spare tyre and spare assembly in Zxi/Zdi&Zdi+ is to be used as temporary spare tyre& wheel assembly. For Zdi/Zxi&Zdi + Zxi+ the spec of temporary spare tyre& wheel assembly is 185/65R15 (tyre) and 15x5 1/2J (steel wheel)’’.The above said notification is released by the Ministry of Road Transport and Highways vide GSR 625 (E) dated 8th August 2012. On the basis of this notification for a vehicle of category M1 and N1 to have a temporary use spare wheel or tyre which is different from normal tyre use on the vehicle. He further stated that the complainant is not entitled to seek any relief from the opposite party since no privity of contract is existed between opposite party 1 and the complainant. It is contended that the complainant has no right to get any relief from first opposite party since the first opposite party has not committed any unfair trade practice or deficiency in service as alleged by the complainant. Hence the first opposite party prayed to dismiss the complaint with cost.

4. Opposite parties 2 & 3 filed version raising the following contentions. According to them, they are only the dealer of the Marutivehilces and they have delivered the complainant’s car CIAZ ZDI PLUS with all its accessories including spare wheel, intact as providing by the first opposite party. The opposite parties could not provide any replacement of ordinary wheel with an alloy wheel as claimed by the complainant since opposite party has not provided an alloy wheel as claimed. It is contended that the complainant has not raised any deficiency in service on the part of the opposite parties except the complaint with respect the allotment of alloy spare wheel. It is further stated that there is no cause of action existed against these opposite parties since no deficiency in service or unfair trade practices committed by them. These opposite parties prayed to dismiss the complaint with cost to this opposite parties.

5. The complainant was examined as PW1 and Exts.A1 & A2 were marked on his side. DW1 was marked and Exts.B1,B2 & (a) were marked on the side of the opposite parties. After considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order.

6. Aggrieved by the order passed by the district forum the opposite parties 2 & 3 have preferred the present appeal.

7. Heard both sides. Perused the records.

8. There is no dispute to the fact that the complainant purchased a CIAZ car from the opposite parties 2 & 3 manufactured by the first opposite party after paying an amount of RS 12,61,632/-. According to the complainant when the vehicle was delivered to him on 13.03.2015 the said vehicle was provided only four alloy wheels and stepney wheel of the vehicle provided was an ordinary wheel. According to the complainant he approached the opposite parties on several times and pointed out the matter. But they did not accept his request to change the stepney wheel. Hence he filed the complaint. It is stated by the opposite parties that the complainant had purchased the vehicle after having mutually settled the terms and conditions of sale in the form of order booking form executed with opposite parties 2 & 3. The complainant has purchased the vehicle after knowing about the particulars, features and specifications of that model of car and he had obtained the delivery of the car after verifying the check list and he had no objection/complaint at that time. The opposite parties never promised or mislead him that all the five wheels (including stepney wheel) will be alloy wheels. Further in the brochure it is specifically stated that the spare wheel will be steel wheel. It is stated by the opposite parties 2 & 3 that they have delivered the vehicle to the complainant, with all its accessories, including spare wheel intact as provided by the first opposite party. They could not provide any replacement of ordinary wheel with any alloy wheel, as claimed by the complainant since the first opposite party has not provided an alloy wheel as claimed. It is stated by the opposite parties that the complainant has no cause of action against them and complaint is not entitled to get any relief against them.

9. There is no dispute to the fact that the stepney wheel, fifth wheel, provided to the car purchased by the complainant was not alloy wheel and it is an ordinary wheel. The other wheels are alloy wheels. The question to be considered is whether the opposite parties promised the complainant that the stepney wheel also will be alloy wheel. The complainant has no case that the opposite parties 2 & 3 agreed to provided five alloy wheels (including stepney wheels or they mislead him). The complainant has no case that in the brochure published by the opposite parties, it is stated that for particular model of the car, the fifth wheel, stepney wheel also will be alloy wheel. The complainant has no case that he had paid extra amount for giving a fifth alloy wheel. It is the case of the opposite parties that in the brochure itself it is stated that the stepney wheel will be steel wheel. Ext.B2 is the brochure or the Booklet which contain the specifications and features of the car. The last page of Ext.B2 is the Features List. In the bottom portion of that page it is stated as ‘spare wheel material is steel and spare tyresized is 185/65 R 15’. That portion in Ext.B2 is marked as Ext.B2 (a). In Ext.B2 (a) it is specifically stated that the spare wheel material is steel. The district forum observed that there is no evidence to consider that Exts.B2 & B2 (a) were shown to the complainant at the time of purchase of the vehicle. It is to be noted the complainant has no case that the opposite parties shown him a brochure containing features of the car in which it is stated that the fifth wheel (stepney) wheel also will be alloy wheel. It is for the purchaser of the vehicle to go through the brochure which contain the specifications and various features of the different models of cars and to decide to purchase that type of model of car after making the clarifications with the dealer if he want to clarify any particular matter regarding the specifications of the car. So, unless otherwise proved, it has to be considered that the complainant had gone through the brochure in which the specifications and features of the car were mentioned and after being satisfied about those features and specifications of the car, he decided to purchase that model car. The district forum observed that there is no justification for such a clause in Ext.B2. Being the manufacturer of the vehicle the appellant decided the type of spare wheel to be provided with a particular model and decided the price of the vehicle, keeping in view of the market, scenario etc and mentioned the same in the commercial voucher. The district forum has no jurisdiction either to interfere with the specifications or to change the specifications of the vehicle. So the finding of the district forum that there is no justification for such a clause in Ext.B2 mentioned as Ext. B2 (a) that the spare wheel provided will be steel wheel is baseless. The district forum observed that the complainant has purchased a luxury car after paying lakhs of rupees and he purchased the same for enjoying the beauty of the vehicle. It may be correct but that is not a ground to allow the prayer of the complainant to direct the opposite parties to provide him an alloy wheel (stepney wheel). The complainant is entitled to get an order directing the opposite parties to provide an alloy wheel as stepney wheel only if he proves that the opposite parties promised him to provide such an alloy wheel, or it was stated so in the brochure of the car shown to him by the opposite parties or he has paid additional amount for that. The complainant has not proved any of these facts. Further it is an admitted fact that the complainant had taken delivery of the vehicle after verifying the check list and at that time he has not raised any objection. Another contention raised by the complainant is that there is difference of one inch in the spare wheel provided compared to the other four wheels of the vehicle. It is stated by the opposite parties that as per the Notification released by the Ministry of Road Transport and Highways dated 08.08.2012, it is possible for a vehicle MI and NI to have a temporary use spare wheel or tyre which is different from normal tyre used in the vehicle. So there is no prohibition under the law to supply steel wheel

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in different size, as spare wheel. The appellant has not violated any safety standard and the use of the steel wheel in different size is not prohibited by any law. It is for the complainant to prove that he was not delivered with the car as per the agreed terms and conditions of the sale. Considering the evidence, facts and circumstances of the case it can be seen that the finding of the district forum that it was the duty of the opposite parties to provide alloy wheel to the complainant and there was deficiency of service and unfair trade practice on the part of the opposite parties 1 to 3 is without any basis and the reasons stated in arriving at such finding are not valid reasons. The direction passed by the district forum to the opposite parties to replace the steel wheel with an alloy wheel, to pay compensation of Rs 20,000/- and cost of Rs 3000/- is not sustainable and the said order is to be set aside. We do so. So the appeal is to be allowed. In the result, the appeal is allowed. The order passed by the district forum is set aside. The complaint shall stand dismissed. The parties are directed to suffer their respective costs. Refund the amount of Rs 11,750/- deposited by the appellant, at the time of filing of the appeal, to them, on proper application.
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