BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.61/2011

Dated this the 12^th day of January 2018

(Date of Institution:  15.12.2011)

B. Sumitha, wife of Babu

No.5-A, 2^nd Cross West

Kurinji Nagar Extension

Lawspet, Puducherry – 8

                                       ….     Complainant

Vs.

1. M/s Manakula Motors rep. by its Proprietor

    Preshika Complex          

    Villianur Main Road

    Reddiyarpalaym, Pondicherry

2. Tata Motors rep. by its Director / Authorised Signatory

    Registered Office; Bombay House

    24, Homi Mody Street, Fort,

    Mumbai – 400 001

          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

Tmt. D. KAVITHA,  B.A., LL.B.,  

MEMBER

FOR THE COMPLAINANT      :  Thiru L. Sathish, Advocate

FOR THE OPPOSITE PARTIES   : OP1 – Thiru M. Lakshmi Narasimhan,

  Advocate

                                                                          OP2 – M/s Law Solvers, Advocates

O R  D  E  R

(by Thiru A. Asokan, President)

This is a complaint filed by the complainant under Sections 12 and 13 of the Consumer Protection Act, 1986  to direct the opposite parties to pay jointly and severally a sum of Rs.8,591/- collected by first opposite party from the complainant for replacement / repair of spares and service, which were covered under extended warranty; to pay a sum of Rs.1,00,000/- as compensation for mental agony, pain and sufferings due to deficiency in service and unfair trade practice; and to pay a sum of Rs.10,000/- towards cost of this complaint. 

2.  The case of the complainant is as follows:

The complainant purchased Tata indigo CS Diesel LX (Product Code No.540103250 D3R) manufactured by 2^nd opposite party on 10/09/2009 for a total consideration of Rs.4,54,024/-. Apart from the three regular free service, the complainant had also opted for extended warranty for a period of years/1,50,000 kilometers upon payment for Rs.9,110/-.  The extended warranty covers the engine, clutch, transmission, transfer case, coolant steering system etc.  The car is being self-driven by the complainant’s husband Mr. Babu.  On 28.04.2011 the complainant’s husband gave the vehicle to 1^st opposite party for complete service on completion of 50,000 kilometers.  At the time of giving the vehicle for service, the complainant’s husband specifically mentioned about a clinging sound in the steering wheel.  But the 1^st opposite party’s service personnel dismissed the same by saying that the sound could be cause of the reduced level of steering oil level and therefore there is no problem with the steering wheel.  They did not even record the complaint of complainant’s husband regarding noise in the steering wheel.  The complainant's husband also informed 1^st opposite party that he is going on a long trip with his family from Pondicherry to Chennai and Bengaluru and therefore he requested a full and thorough check up of all parts of the vehicle including the steering wheel.

          3. The complainant further stated that the 1^st opposite party delivered the vehicle on 30.04.2011, but the complainant’s husband noticed that in the 1^st opposite party’s invoice number MANAK M-PP-1112-01240         dated 30.04.2011,  they had also billed for parts which were covered under extended warranty.  For example a) kit for 200 DIA clutch Assy-TCIC DSL for Rs.3,584/- b) front brake disc (20THK) for Rs.1058.49, c) Labour for removal and installation of brake disc Rs.480/- and etc.  were all covered under the extended warranty but were also billed in the name of complainant.  When the complainant’s husband questioned the same, 1^st opposite party gave evasive replies.  Since the complainant’s husband required the vehicle urgently, he paid the amount with reluctance.  The complainant and her family went to Chennai and Bengaluru on 04.05.2011 and 05.05.2011 in their car.  The complainant’s husband drove the vehicle by himself.  But he was finding it uncomfortable to steer the vehicle as clinging noise was emanating from the steering wheel and the steering was not very smooth.  The problems with the steering wheel slowly aggravated and the complainant’s husband found it increasingly difficult to maneuver it especially in the bend and turn.  He was therefore forced to drive the vehicle at a very slow speed making the entire trip not only inconvenient but also scary and dangerous.

          4. The complainant reached Pondicherry in the late hours of 05.05.2011.  The next day i.e on 06.05.2011, he went to Manakula Vinayagar Temple and thereafter he was planning to bring the vehicle to 1^st opposite party to check the steering wheel.  He parked the vehicle outside the temple.  When he came back, he noticed that entire power steering oil had leaked out and the steering wheel had got jammed.  The vehicle could not be moved and it had to be towed to 1^st opposite party’s service centre.

          5. The complainant further stated that since the steering wheel was covered under extended warranty and since such major complaint occurred within 5 days of full service on 28.04.2011 because of 1^st opposite party’s negligence. 1^st opposite party was expected to extend sincere apologies for their negligence and rectify the defect without charging anything from complainant.  On the contrary, 1^st  opposite party claimed a sum of Rs.8,591/- for the following repairs.

          a) Power steering oil Castrol dex (ii) grade for Rs.193.78/-

          b) Assy. Power steering pump M/s Rane (TRW) for Rs.6290.56/-

          c) Power steering oil top up (TQ OIL REP NEWLY for Rs.100/-.

          d) Remove and install steering pump (power steering assy. Rep newly) for Rs.400/-

          6. When the complainant refused to pay the money, the 1^st opposite party refused to deliver the vehicle without payment being made and therefore the complainant was forced to make payment as demanded by 1^st opposite party to the tune of Rs.8,591/- with lot of resentment.

          7. The complainant took delivery of vehicle after 4^th service on 30.04.2011.  The 1^st opposite party was expected to check each and every component of the vehicle thoroughly to ensure that every part of it is properly functioning.  The very objective of servicing the vehicle at regular intervals is to ensure that all the spare parts of the vehicle are in order and are functioning properly.  1^st opposite party is expected to check each and every part of the vehicle at the time of servicing the same.  The fact that the incident occurred within 5 days of 4^th service clearly establishes that 1^st opposite party did not check the vehicle properly and have been negligent and deficient in providing services.

          8. The complainant is also aghast by the unfair trade practice of the 1^st opposite party in demanding payment for servicing the steering wheel especially when the same is covered under extended warranty.  The complainant issued legal notice to the opposite parties on 29.05.2011, which was received by both opposite parties.  But neither of the opposite parties has chosen to reply to the said legal notice.  Hence, this complaint. 

          9. The reply version filed by the first opposite party briefly discloses the following:

          Apart from denying all the allegation, this opposite party stated that the complainant is not maintainable on Facts and under Law.  The complainant was in use of  the vehicle without any problems.  The vehicle was first brought for service only after 50,000 Kms.  The employees of OP1 company explained to the complainant and her husband that any damages to any of spare parts or functions due to incorrect and rough use normal wear and tear of parts are not at all coverable but excluded under terms of specific warranties.  The complainant and her husband had accepted the said truths.  It is thus they had forthwith paid said charges at time of delivery after service.  The complainant informed 1^st OP on 06.05.2011 that there is leak of oil from car and that steering wheel was jammed to disable moving of vehicle from complainant house.  The OP1  had at once served customer by sending relevant employees to check vehicle in complainant’s House and found that the power steering pump in bottom of car had suffered a hard hit to damage pipe and to cause instant leak of oil for power steering.  Complainant and her husband were also immediately informed that such damages by such hits and impacts or by normal wear and tear are not at all coverable under terms of warranty.  The complainant and her husband had also accepted all such truths and has agreed to pay for all Repairs & Re-placements of damaged spares.  The  Vehicle was brought to first OP’s workshop and all the said repairs and re-placements were completed to tested satisfaction by customer.  The complainant  paid requisite charge  of Rs.8,591/- by cash without any objection or protest in any manner.  The complainant had began allegation as after-thoughts for instructions for advocate notice of 29.05.2011.  The notice was sent only in intents to threaten OPs by false and vexatious claims.  The Opposite Parties had sent reply on 01.09.2011 to the said Notice by clear narrations of all said Truths of Events and particulars.  This complaint was filed in open motives & acts of blackmail for money by Mis-use of Good Law for consumers.  This opposite party also stated that the complainant had also sold the vehicle to one  Uthirapathi on 20.02.2012.  Hence, this complaint is clear abuse of law.    The complaint is unjust and  incorrect on Facts & Law and that it is unsustainable under Law.  There is no truth at all in any of Allegations of Deficiency in Service or Losses & Damages.  Hence, the Opposite parties are not at all responsible or liable for any claim.  Hence, prayed for dismissal of the complaint. 

          10. The following are the reply filed by the second opposite party.

That the present complaint filed by the complainant is an abuse of process of law and is not maintainable.   That the averments made therein are vague baseless and with malafide intent.  The complainant is not a consumer since the alleged car has been sold to one Uthirapathi by the complainant and also the questioned car has been used for commercial activities.  That the complaint filed by the complainant does not fall within the definition of ‘Consumer Dispute’ under the Consumer Protection Act as there is neither any  manufacturing defect proved in the car in question nor any deficiency in service being established against these opposite parties.  That the car purchased by the complainant requires mandatory servicing and replacement of specified components viz air filter, fuel filter etc. at recommended intervals as mentioned in the owner manual and service book given at the time of sale for smooth running and optimum performance.  These opposite parties stated that the complainant had failed and neglected to follow the guidelines given in the owner’s manual, as recommended for smooth and maximum performance of the car in question viz. correct operating procedures- do’s and don’ts for maintenance and performance of the car.  As per the service schedule of the car in question, the complainant was supposed to bring the subject car at the recommended intervals as mentioned in the owner’s manual and service book for carrying out the mandatory free service however, the complainant has not produced any records, so as to show that the complainant had regularly serviced the car as per the recommended service schedule as per the clause 1 of the warranty applicable for the subject car and the warranty shall be limited for 18 months from the date of sale of vehicle irrespective of the distance covered however for commercial applications the warranty shall be limited to 18 months or 50,000 kms whichever occurs earlier subject to fulfillment of other terms and conditions of the warranty.    This opposite party further stated that the subject car in question met with an accident and brought at the workshop of opposite party No.1 for accidental repairs.  The complainant had suppressed the said material facts before this Hon’ble Forum.  Clause 7 of the terms & conditions of warranty, which clearly stipulates that the warranty shall not apply to any repairs or replacements in the vehicle in the event of an accident or collision.  Under the circumstances the complainant cannot claim any benefits as per the terms and conditions of the warranty policy after having breached the contractual terms.  It is further stated by the opposite parties that the car, purchased by the complainant is a well established product in the market and over a period of years the consumers are using the product and the complainant had taken delivery of the car after being satisfied with the condition of the car and its performance.  The extended warranty was extended by one Global Administration Services and United India Insurance.  This opposite party is not a party to the said contract.  The complainant has purchased the car on or around 10.09.2009 from the opposite party dealer and the said car in question till 18.11.2011 had covered around 73,007 kms. The said fact proves that the subject car is in absolute roadworthy condition and that the jobs carried out on the car in question are minor and running repairs and on one occasion for accidental repair which was required to be carried out due to extensive and faulty usage of the said car.  The opposite party has been prompt and swift to attend to the alleged grievances reported by the complainant under the warranty as and when reported.  Therefore the prayers as made by the complainant for replacement of the car are untenable and unsustainable.  The complaint is bad for non-joinder of parties.  The complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering opposite parties which is a company of long standing and high repute and as a ruse to extract money without just cause or valid reason. 

            11.  Further,  apart from denying the allegations of the complainant in the complaint the opposite party stated that all the cars manufactured by these opposite parties undergo strict quality checks, there was no problem with the car at the time of delivery and the complainant had taken delivery after proper inspection and satisfaction.  This opposite party as a manufacturer has neither been involved in  the sale transaction with the complainant nor with regard to issuance of extended warranty.    It is stated that alleged car reported on 28.04.2011 at 50,154 kms. for scheduled serviced along with the purported complaints of windshield wipers not working properly, brake insufficient, door rattling, engine hesitates, gear shifting hard, clutch slips and under carriage noise when it was attended by replacing kit for clutch assembly, clutch cable, upper and lower bush on housing, bush rear, front brake disc, kit for pad, assy. Lower ball joint assembly, pivot bush, bush antiroll bar etc. on paid basis.  Also, maintenance services such as washing and vacuuming, change of engine oil, power steering oil, transaxle oil etc were performed on costs basis as per the schedule and the alleged problem of clinging sound in steering wheel was neither recorded by the complainant nor observed by the service centre.  As per warranty policy, all the normal maintenance services and consumables items are to be carried out on paid basis hence, the complainant was not entitled to get any warranty benefits for carrying out the job works of change of washing and vacuuming and change of engine oil, transaxle oil etc.  The car in question reported on or around 7.5.2012 at 51,226 kms. for the complaint of power steering oil leak when after inspection, the power steering pump was found damaged due to accident / external impact.  As per the terms and conditions of the extended warranty, the benefits of warranty get terminated when the car meets with an accident.  The said fact was duly communicated to the complainant by OP1.  After getting approval, the said part was replaced on cost.  There is no cause of action for the complaint.  Hence, prayed for dismissal of the complaint. 

12.     The complainant was examined as CW1 and Exs.C1 to C21 were marked through her.  On the side of first Opposite Party, Thiru Gurumurthy, Managing Partner was examined as RW1 and marked Exs.R1 to R3.  On the side of the second opposite party, nobody was examined and no documents was marked. 

13.     Points for determination are :

          1. Whether the complainant is a Consumer and the complainant is entitled for the claim sought for?

2. Whether the opposite parties attributed deficiency in service and 

     unfair trade practice?

3. To what relief, the complainant is entitled?

            14. Point No.1:

           The complainant purchased a Tata Indigo CS Diesel LX car from the first opposite party on 10.09.2009 which is manufactured by the second opposite party vide Exs.C1 the Tax invoice and Ex.C2 the Vehicle Delivery Acknowledgement Note.  Hence, the complainant is a Consumer.    

           15. The opposite parties categorically stated that after filing this complaint, the complainant has sold away the alleged vehicle to one Uthirapathi, son of Arumugam on 08.03.2012.  The said fact is established vide Ex.R2.  The complainant also admitted during her evidence before this Forum that she had sold the complaint referred car to a third party and it was also admitted in her cross examination that "It is true that I had sold the complaint referred car to one Uthirapathy on 27.01.2012". 

           16. Further, the Counsel for the first opposite party has relied upon the decision of the 'Hon'ble National Commission' in the Revision Petition No. 2622 of 2012 [M/s  Honda Cars India Ltd., vs. Jatinder Singh Madam, Proprietor, M/s G.N. Associates and Another – CDJ 2013 (Cons.) Case No. 791] by stating that once vehicle is sold during pendency of the complaint, complainant does not remain consumer for the purposes of Consumer Protection Act. 

           17.  We have also observed vide Ex.R2 and admission of the complainant in cross examination that the complaint alleged vehicle was sold and transferred to one Uthirapathy during pendency of this complaint before this Forum.   Thus, the complainant does not remain as a consumer for the purposes of Consumer Protection Act since the vehicle being sold during pendency of the complaint. 

           18. In view of the decisions rendered by the Hon'ble National Commission, it is held by this Forum that the complainant ceases to be a consumer under the Act and he is not entitled for any relief.  Therefore, the complaint is liable to be dismissed on this sole count.

           19. Point Nos. 2 and 3:

           In pursuance of the decision held in point No.1 by this Forum that the complainant is not entitled for any relief, the point Nos. 2 and 3 are need not be answered. 

20. In the result, the complaint is hereby dismissed. No costs.

Dated this the 12^th day of January 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

    MEMBER

(D. KAVITHA)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           02.05.2014           B. Sumitha        

OPPOSITE PARTIES WITNESS: 

RW.1          13.08.2015           Gurumurthy                                  

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

 LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

    MEMBER

(D. KAVITHA)

    MEMBER