Date of Filing : 16.08.2017
Date of Disposal: 24.06.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU P.MURUGAN, B.Com, ….. MEMBER-II
CC. No.17/2018
THIS FRIDAY, THE 24th DAY OF JUNE 2022
Mr.Murali, S/o.Munusamy,
Jayaramapuram Kanniyampalayam Village,
Nayar Post,
poneri Taluk, Thiruvallur District. ……Complainant.
//Vs//
1.Anil Motors,
Rep.by its Proprietor,
No.1/46, G.N.T.Road, Karanodai,
Cholavaram, Chennai -67.
2.The Proprietor, Vijay Motors,
No.11, O.C.F.Road, Avadi, Chennai -54.
3.TVS Motor Company,
Rep.by its the Managing Director,
No.29 Haddows Road, Chennai -600 006.
4.Jitendra Kumar,
No.73 Mulla Sahib Street,
First Floor, Sowcarpet, Chennai -79. …..opposite parties.
Counsel for the complainant : Mr.S.MuthuKumaravel, Advocate.
Counsel for the 2nd opposite party : Mrs.J.Soram Jain, Advocate.
Counsel for the 3rd opposite party : M/s.Raj Makesh, Advocate.
Counsel for the 1st &4th opposite parties : exparte.
This complaint is coming before us on various dates and finally on 09.06.2022 in the presence of Mr.S.Muthukumaravel counsel for the complainant and we provided sufficient opportunities on 22.04.2022, 12.05.2022 and 09.06.2022 but the opposite parties 2 & 3 did not turn up before this Commission for adducing the oral arguments. Hence this Commission decided to treat the written arguments submitted by them as oral arguments and on perusing the documents and evidences, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
The present complaint was filed U/S 12 of the Consumer Protection Act 1986 alleging deficiency in service on the part of the opposite parties in selling a two wheeler to the complainant with some manufacturing defects and to pay a sum of Rs.50,000/- towards compensation for mental agony and torture caused to the complainant due to the deficiency in service and to pay a sum of Rs.5,000/- towards cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
It is submitted by the complainant that he purchased a TVS XL motor bike bearing Chasiss No.MD621CP10GIN94219, Engine No.OPING1A10570 Blue Colour from the 1st opposite party on 27.01.2017. The vehicle was purchased under an installment scheme offered by the 4th opposite party who is the financier and the installment amount was fixed at Rs.2045/- per month. The complainant‘s livelihood was by selling groceries in two wheeler across the villages by the two wheeler.
One week after the purchase, when he started the vehicle, he found some defects in the starting and the engine failed to start in spite of several attempts. On 07.02.2017 the complainant had left the two wheeler before the 1st opposite party who assured that the vehicle would be repaired by the 2nd opposite party. Though the vehicle was given in the 2nd week of March 2017 it had the same defects and the complainant found defects in starting the vehicle. In the mean time the Hon’ble Supreme Court had banned the registration of all BS.3 vehicle. So as on date even if the vehicle got repaired he could not register the vehicle. The financier also threatened the complainant for repayment of money eventhough the vehicle could not be plied. Thus alleging that the vehicle was not at all performing well within two months from the date of purchase and unable to even start the vehicle and also vehicle not worthy for sale, the complainant alleged deficiency in service and filed the complaint claiming the reliefs as mentioned above.
Crux of defence raised by the 2nd opposite party:
The 2nd opposite party filed version disputing the allegations of the complainant contending interalia that they are the authorised dealer of the vehicle but denies that the vehicle was sold on 27.01.2018 and submitted that it was sold only on 28.01.2017. This opposite party denies the allegations made by the complainant that the complainant felt difficulties with the vehicle. It is submitted that the job card issued by them shows the reading of the odometer of the vehicle that it had run upto 405 km. It was submitted by them that the defects were rectified and the motor vehicle was delivered to the 1st opposite party on 01.02.2017, the same day of the complaint made with them regarding to the vehicle. The 2nd opposite party denies the fact that the complainant and the 1st opposite party came to Vijay Motors service centre/2nd opposite party on 11.03.2017 with complaints of emitting white smoke, oil leakage, starting trouble, kicker struck. The job card shows the running of the vehicle upto 2067 kms.
It is submitted that the 2nd opposite party had rectified the defects and the vehicle was made ready for delivery on 30.04.2017. The allegation made by the complainant that at present the Hon’ble Supreme Court had banned the registration of BS.3 vehicles. Thus contending that eventhough the vehicle was made ready after rectifying all the defects and even after requesting the complainant to take delivery of the vehicle he did not come forward to take delivery of the said vehicle and was making false allegations against thhis opposite party and thus sought for dismissal of the complaint.
Crux of defence raised by the 3rd opposite party:-
The 3rd opposite party submitted that they are they manufacturers of powered two wheelers and other automative products and manufacturers of two wheelers at their factory with good industry practice. It is contended that the complainant did not make any specific allegations against this opposite party. The opposite party also submitted that the vehicles are taken up by the dealers only after quality control test was done and found good in all respects. It is submitted by them that the dealers are not agents of the manufacturer i.e. 3rd opposite party and therefore the 3rd opposite party holds no liablity for the acts of the dealers. It is submitted that no service was done by the manufacturer and the issues regarding service of the vehicle are governed by the contract inter-se between the dealer and the complainant and in the present case the contract is only between the complainant and the 2nd opposite party.
Further it is stated that the onus is on the complainant to prove the manufacturing defects. It is alleged that in the present case there is no expert verification and no evidence was produced by the complainant to establish the manufacturing defects. Further it is submitted by them that the owners user manual was furnished along with the vehicle which gives information such as features in the vehicle model, riding tips, maintenance instructions, warranty and services, technical specification of the vehicle, general information, etc. Through the owner’s manual, the owner of the two-wheeler was provided with a warranty for a specified period on the stipulated terms and coniditions and the owners accepts such warranty. The vehicle sold to the complainant has a warranty for tenure from the date of purchase or during the first 12,000kms distance for the vehicle whichever is earlier. In the present case on enquiry by the 3rd opposite party from the perusal of service job cards, it is learnt that the complainant availed the last service on 11.03.2017 when the vehicle was completed 2067 kilo meters. Hence it is submitted that the complainant had not followed the terms of warranty by not availing the service in time. Hence it is submitted that the complainant is not entitled to replacement of the vehicle and hence sought for dismissal of the complaint.
The complainant filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A7. On the side of the opposite parties 2 & 3 proof affidavit was filed and documents marked as Ex.B1 to Ex.B8 were submitted.
Point for consideration:
Whether the alleged deficiency in service in selling the two wheeler with some manufacturing defects by the opposite parties was proved. If so to what relief the complainant is entitled?
Point:
The following documents were filed on the side of the complainant in proof of his complaint allegations;
The delivery note issued by the 1st opposite party/Anil Motors in favour of the complainant dated 27.01.2017 in proof of the vehicle delivery to the complainant was marked as Ex.A1;
The form 22 relating to the vehicle was marked as Ex.A2;
The receipt issued by the 4th opposite party dated 01.03.2017 for Rs.2045/- was marked as Ex.A3;
A slip issued by the 2nd opposite party dated 11.03.2017 was marked as Ex.A4;
The Advocate notice issued to the opposite parties 1 to 3 by the complainant was marked as Ex.A5;
The acknowledgement card in proof of delivery to Anil motors was marked as Ex.A6 & Ex.A7;
On the side of 2nd opposite party following documents were filed in proof of his submissions;
The vehicle multi invoice dated 28.01.2017 for the subject vehicle was marked as Ex.B1;
The service receipt dated 01.02.2017 was marked as Ex.B2;
The job card dated 11.03.2017 issued by the 2nd opposite party for service of the vehicle was marked as Ex.B3. As per the job card the demanded repair by the customer/complainant were given as “white smoke from engine, noise from cylinder/piston, air filter oil leakage starting and trouble-kicker stuck/not Returning“, the finishing time as per document was provided as 30.04.2017 at 19.05 hours;
The warranty card was marked as Ex.B4;
Proof affidavit of R.Kanchan Bai Proprietor dated 17.05.2019 was marked as Ex.B5;
The 3rd opposite party filed the following documents along with proof affidavit in proof of his submissions;
The authorization letter directing their officials to appear and contest the complaint before this Commission was marked as Ex.B6;
Job cards were marked as Ex.B8;
We heard the oral argument adduced by the complainant and though we have provided sufficient opportunities on 22.04.2022, 12.05.2022 and 09.06.2022, the opposite parties 2 & 3 did not turn up for adducing the oral arguments. Hence this Commission decided to treat the written arguments submitted by them as oral arguments for the purpose of deciding the complaint on merits.
As per the documents submitted by the complainant it is seen that the vehicle was delivered on 28.01.2017 by the 2nd opposite party who is the authorized dealer. It is also admitted that the two wheeler was purchased under installment scheme provided by the 4th opposite party who is the financial agency.
It is the case of the complainant that even after one week of purchase of the vehicle he felt difficulties with the performance of the vehicle and the engine failed to start in spite of several attempts emitting more and more smoke and hence the vehicle was given for service to the 1st opposite party but again in the 2nd week of March 2017, as per the document Ex.B3 it is seen that the vehicle was given for several complaints like emitting white smoke, oil leakage, starting trouble, kicker struck and the same was delivered at 19.05 hours on 30.04.2017 vide job card No.11283 dated 11.03.2017. However the same document was filed by the 3rd opposite party as Ex.B8 but in the said document the work finishing time was given as 16.05 hours on 11.03.2017 itself. Hence, it is evident that this is a concocted document for the purpose of case.
It is the case of the complainant that on 11.03.2017 when the complainant took delivery of the vehicle from the 1st opposite party and tried to start the vehicle it was failed and both the complainant and the 1st opposite party went to the 2nd opposite party and delivered the vehicle to them for carrying out the repairs. It is seen that as per Ex.B3 the vehicle given for repair on 11.03.2017 was given delivery on 30.04.2017. Even as per the document filed by the 2nd opposite party which is marked as Ex.B5 it is stated that the Govenment has banned all the vehicles i.e. BS.3 vehicle on 01.04.2017 . Therefore it is proved that the vehicle given for repairs on 11.03.2017 was not returned till 30.04.2017 even as per the written version of the 2nd opposite party. It is also to be seen that the vehicle was sold on 27.01.2017 and delivered on 28.01.2017. In the exhibits filed by the 3rd opposite party the job card (Ex.B8) they have clearly fabricated with false particulars to show that the vehicle was delivered on the same day itself which is not acceptable. In such circumstances we have no other option but to conclude that the vehicle given for rectifying defects was not returned to the complainant as per version of the complainant. The complainant has proved by evidence that the vehicle soon after it is sold to him was given for repairs due to manufacturing defect inherent in the vehicle. Thus we hold that the opposite parties 1 to 3 had committed deficiency in service in selling a vehicle with manufacturing defects. The 4th opposite party cannot be made liable as he is merely a financier and no way connected to the manufacturer and selling of the vehicle. In such circumstances we hold that the deficiency in service on the part of the opposite parties 1 to 3 has been proved by the complainant.
With regard to the reliefs to be granted to the complainant as we have already held that the opposite parties 1 to 3 had committed deficiency in service and considering the fact that the complainant had driven the vehicle only for three days and was compelled to pay the installment amounts though he could not use the same for his livelihood. We are of the view that it is proper on the part of opposite parties 1 to 3 to replace the defective vehicle with a new one in default to pay the vehicle cost of Rs.18,645/- with 6% interest from 27.01.2017 to till the date of realization. Further for the mental agony and hardship caused to the complainant we order Rs.10,000/- as compensation and Rs.3,000/- as cost of the proceedings. We answer this point accordingly.
In the result, this complaint is partly allowed. The Opposite Parties 1 to 3 are jointly and severally liable
a)to replace the TVS XL Motor vehicle with a new vehicle within six weeks from the date of receipt of copy of this order or in default to pay Rs.18,645/- (Rupees eighteen thousand six hundred forty five only) with 6% interest from 27.01.2017 to till the date of realization;
b) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony caused to the complainant;
c) to pay a sum of Rs.3,000/- (Rupees three thousand only) towards litigation expenses to the complainant. The complaint against 4th opposite party is dismissed.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 24th day of June 2022.
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Sd/- Sd/- MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 27.01.2017 Purchase bill from the 1st op. Xerox
Ex.A2 …………… Form -22 issued by the TVS Company. Xerox
Ex.A3 01.03.2017 1st installment paid to the 4th op. Xerox
Ex.A4 11.03.2017 Slip issued by the 2nd opposite party. Xerox
Ex.A5 15.05.2017 Legal notice sent by the complainant. Xerox
Ex.A6 ………….. RPAD tracking for op3 &Op4. Xerox
Ex.A7 ………….. Acknowledgement card for op1 & Op2. Xerox
List of documents filed by the 2nd opposite party:-
Ex.B1 28.01.2017 Vehicle multi invoice of vijay motors invoice No.1092. Xerox
Ex.B2 01.02.2017 Receipt of service of vijay motors job card No.11072. Xerox
Ex.B3 11.03.2017 Receipt of service of vijay motors job card No.11283. Xerox
Ex.B4 11.03.2017 Receipt of warranty claim from TVS motors Xerox
Ex.B5 17.05.2019 Proof affidavit of R.Kanchan, Proprietor of Vijay Motots/2nd op. Xerox
List of documents filed by the 3rd opposite party:-
Ex.B6 06.09.2018 Letter of Authorization. Xerox
Ex.B7 ............... Warranty manual. Xerox
Ex.B8 ............. Service job cards. Xerox
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MEMBER II MEMBER-I PRESIDENT
