BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.332/2015

DATED ON THIS THE 5^th August 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act, 1986, against the opposite parties, alleging the deficiency in service and unfair trade practice, seeking a direction to refund, jointly and severally, a sum of Rs.75,000/- paid as down payment and Rs.1,12,500/-, EMI amount (for 9 months period) paid to the Bank towards the loan, Rs.3,00,000/- compensation for the loss of business, inconvenience, harassment and mental agony, and Rs.20,000/- per month from the date of complaint to, till the date of realization for future business loss and to retain the car with item and to pay the balance instalment amount to the bank with such other reliefs.
2.     The complainant purchased the “Chevrolet Enjoy LS TCDI8” vehicle from opposite party No.3 on 21.04.2014, by making a down payment of Rs.75,000/- and availing loan from M/s Syndicate Bank for the balance amount.  The vehicle suffered problems repeatedly and got rectified by the opposite party No.3, by replacing certain of the spare parts, without any charges.  The vehicle was purchased with an intention to earning his livelihood by self employment as driver of the vehicle.  The complainant suffered heavy loss due to recurrence of the defects in the vehicle, frequently.  The complainant not satisfied with the performance of the vehicle and the services rendered by the opposite party No.3 alleging defects in manufacturing, filed the complaint seeking reliefs.
3.     The opposite party Nos.1 and 2 pleaded that the complainant has purchased the said vehicle for commercial purposes, as such, the complaint is not maintainable under the C.P.Act 1986 is liable to be dismissed.  Further, pleaded that, the vehicle is supported with quality services.  As such, soon after receiving a complaint from the complainant, it has provided better services, to the satisfaction of the customers.  The trouble in the vehicle was caused due to travelling to hill stations with overloading beyond the stipulated capacity.  The premature wear and tear in the breaking mechanism has been arised due to mishandling of the vehicle rough driving.  The replacement of disc brake pads was done on account of repeated jamming of brakes.  The visits of the vehicle repeatedly was mainly for the purpose of periodic checkup and services only.  As such, denies the allegations of manufacturing defect in the vehicle and prays for dismissal of the complaint.
4.     Opposite party No.3, the authorised dealer and sole distributor of opposite party No.1, pleaded that the complaint is not maintainable, as there is no deficiency in service by it.  Complainant had purchased the CHEVROLET Enjoy LS TCDI8 vehicle by paying Rs.67,300/- on different dates and the Syndicate Bank has paid Rs.6,90,968/-.  The opposite party No.3 has attended the vehicle on 02.05.2014, as per the terms and conditions stated in the owner’s manual book.  On 14.05.2014, the vehicle was submitted with complaints, and the same have been attended with necessary replacement of the parts and delivered.  The vehicle has been brought to opposite party No.3, with similar problems and also with new problems on many occasions and the same have been resolved satisfactorily with replacement of necessary spare parts, free of cost.  Finally, the complainant brought the vehicle on 14.04.2015 to the free service camp and duly attending to the complaints, the vehicle was ready for delivery on 17.04.2015, and the complainant has been informed immediately over the phone to take delivery of the vehicle. But, the complainant failed to come forward to take delivery of the vehicle.  The notice issued by the complainant has been replied by opposite party No.3 on 25.05.2015 and requested the complainant to take delivery of the vehicle by paying the charges.  The complainant has suppressed the facts and filed this complaint and he is liable to pay Rs.250/- per day parking charges, since he has not taken delivery of the vehicle in spite of intimation.  As such, opposite party No.3 pleaded that there is no deficiency in service and prays for dismissal of the complaint.
5.     To establish the facts, the complainant filed his affidavit part of his evidence with several documents.  The opposite party Nos.1 and 2 failed to lead evidence, opposite party No.3 lead its evidence by filing affidavit and placed several documents.  The complainant and opposite party NO.3 filed their respective written arguments.  Heard the counsel for the complainant and opposite party No.3.  On perusing the material on record, the matter posted for orders.
6.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant establishes the deficiency in service and unfair trade practice on the part of opposite parties, in selling a vehicle with manufacturing defects and not rectifying the defects satisfactorily even after several visits to the authorised service centre, thereby he is entitled for the reliefs sought?
3.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative.

Point No.2 :- Partly in the affirmative.

Point No.3 :- As per final order for the following

:: R E A S O N S ::

8.    Point No.1:- The complainant has purchased the Chevrolet Enjoy LS TCDI8 vehicle from opposite party No.3 by paying a part of the value of the vehicle and by availing the loan from the bank for the balance amount.  The vehicle was delivered to the complainant on 21.04.2014 by opposite party No.3.  The complainant used the vehicle for the purpose of earning his livelihood by means of self employment.  As such, the complaint comes under the purview of the provision under section 2(1)(d) of the Consumer Protection Act, 1986.  Hence, the complaint is maintainable.  Accordingly, the point No.1 is answered in the affirmative.
9.    Point No.2:- From the records placed on board, the complainant had approached the opposite party No.3, left his vehicle with several complaints on many occasions.  Each and every occasion, the opposite party No.3 has attended the defects and rectified the same by replacing the defective parts, without levying any charges for the same.  The complainant who purchased the said vehicle to earn his livelihood by self employment suffered loss of business, because of the reason for leaving the vehicle repeatedly to rectify the defects.  The documents placed by the complainant as well as opposite party No.3 clearly establishes the recurrence of the problems in the vehicle and delivery of the vehicle duly rectifying the defects.  The opposite party No.3 has admitted the facts of the replacement of certain spare parts during the periodical check-up, and also as and when the complainant alleged the defects and brought the vehicle to them for rectification.  The said vehicle, though it is new, it is agreed that several defects found in the vehicle repeatedly on many occasions, thereby the complainant was inevitably left his vehicle for rectification.  This has really hampered the complainant business, lead to loss of earnings.  Thereby, the complainant has suffered mentally and also suffered financial loss, as he was unable to repay the loan amount to the bank towards the loan availed by him, to purchase the said vehicle. The complainant relied on the judgement in case of Love Kumar Sharma V/s Cargo Motors (P) Ltd., and another, reported in 2015 (3) CPR 667 (NC) – which supports the claim of the complainant, as the vehicle purchased by complainant suffered problems within a month of its purchase. Hence, the contention of opposite parties not acceptable.  Therefore, the opposite party Nos.1 to 3 are jointly and severally held liable for the deficiency in service and unfair trade practice and are all jointly and severally shall pay compensation to the complainant.  Accordingly, the point No.2 is answered partly in the affirmative.
10.  Point No.3:- In view of the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party Nos.1 to 3 are jointly and severally hereby directed to rectify the defects satisfactorily, and deliver the vehicle to the complainant without levy of charges for the spare parts replaced and the repair charges, within 10 days of this order or deliver a defect free vehicle of similar model and make to the complainant within 30 days of this order.  In default to comply the, the opposite parties are jointly and severally shall pay the cost of the vehicle (i.e. Rs.7,58,268/-) to the complainant along with interest at 10% p.a. from 17.04.2015 until compliance.
3.  The opposite party Nos.1 to 3 are jointly and severally shall pay Rs.10,000/- compensation for the deficiency in service and unfair trade practice and Rs.5,000/- compensation for the mental agony, hardship and financial inconvenience and Rs.2,000/- towards the cost of the proceedings, to the complainant, within 30 days of this order.
4.  In default to comply, the opposite party Nos.1 to 3 are jointly and severally shall pay penalty of Rs.100/- to the complainant until entire payment is made.  
5. In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
6. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 5^th August 2016)