Date of Filing 27.09.2023

                                                                                                             Date of Disposal: 21.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, (ICWA), BL.,                                                                     ……MEMBER-II

CC.No.112/2023

THIS WEDNESDAY, THE 21^st DAY OF FEBRUARY 2024

Mr.M.Gowtham, S/o.Munusamy,

No.103, C.S.S. Shetty Nagar,

Minjur, Ponneri Taluk,

Thiruvallur District 601 203.                                                                   ......Complainant.

                                                                                   //Vs//

M/s.Cresent Auto Repairs and Service India Private Limited,

(C.A.R.S.India – True Value),

Rep. by its Manager,

No.4/321, OMR, Kottivakkam,

 Chennai 600 041.                                                                                 ……Opposite party.

Counsel for the complainant                                                                  : Party in Person.

Counsel for the opposite party.                                                             : Exparte.

This complaint coming before us on various dates and finally on 12.02.2024 in the presence of complainant who appeared as party in person and opposite party was set exparte for non appearance and upon perusing the documents and evidences of complainant’s side this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in selling a defective car along with a prayer to direct the opposite party to get return back the car sold by them and to return the car cost a sum of Rs.4,68,500/- along with interest 12% per annum from the date of purchase till the date of refund, to pay a sum of Rs.2,50,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.50,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he approached the opposite party on 08.10.2020 in order to purchase a car since the opposite party was an authorized Maruti Suzuki certified Car Re-seller in the brand name of true value. The opposite party’s sales executive had shown a Swift Dzire 2015 model, Alphine blue colour with one year warranty and offered to the complainant for test drive.  During test drive the complainant had found some issues. Those issues were highlighted to the sales executive of the opposite party for which they assured that the clutch rod set would be replaced, wheel alignment and AC repair, including bearing issue shall be done in addition to dent removal and repainting in the said vehicle before delivery and advised to book the said car and also informed that after booking confirmation only the highlighted issued would be repaired.  Believing the assurance the complainant had agreed to purchase the vehicle for the offered price quoted by the opposite party Rs.4,68,500/- and had paid an advance amount through internet banking for booking the offered car. It was submitted that on the date of delivery, the opposite party had demanded to remit the entire sale amount instantly for final test drive. Based on the assurance given by the opposite party’s staff the complainant had remitted the entire amount, thereafter went for first drive.  During the time of first drive, even though the clutch hardness was slightly different and in better smooth, complainant had observed that the clutch was still hard to press.  It was further submitted that when this issue was highlighted to the opposite party they said that since the clutch rod was newly replaced, hardness will get smoother after some days of drive. The complainant believed and took delivery of the said vehicle based on the assurance given by the opposite party. After three weeks of drive, clutch pad was back to hardness and AC cooling reduced very low, in addition to that, bearing noise and back right side wheel started to wobble and such wobbliness has slowly increased. The complainant immediately informed to the opposite party’s staff and highlighted all the issues for which the opposite party had convinced that that those were small issues and would be completely re-repaired at the first free service. After receipt of vehicle Registration in complainant’s name, he brought his car for its first service and handed over it to the opposite party on 18.12.2020 and the complainant highlighted the said issues to the opposite party’s staff and service person.  When the complainant specifically asked the service persons of the opposite party as to why the new replaced clutch was still hard and uncomfortable to drive for which the opposite party’s service person replied that clutch was not newly replaced, instead old one was adjusted.  It was further submitted that when the complainant asked the service person of the opposite party about wheel wobbliness which literally had changed from back left side wheel to back right side wheel even after wheel alignment done, for which the service person of the opposite party replied that they never did any wheel alignment and they just had replaced the tyres as advised by the opposite party.  Because of such false commitments and assurances given the opposite party’s staff purposefully for selling the vehicle to customers, complainant had seen nothing except an unfair trade practice and deficiency in service rendered by the opposite party and its staffs to the complainant.  It was submitted that as assured by the opposite party’s staff during first service, the complainant with full of hope had handed over his car for second free service on 22.07.2021.  After that, the complainant received a call from the service person of the opposite party requesting to give approval for replacement of suspension rod which cost around Rs.2500/- for which the complainant replied that the cost for replacement shall cover under the warranty and hence approval was not required.  But the service person of the opposite party replied that the said replacement of particular suspension rod will not cover under warranty. The opposite party’s staff Mr.Arjun gave an assurance that they will do replacement of clutch rod, wheel alignment and AC cooling repair work and bearing noise as assured by them during last free service.  Later the complainant has agreed to pay the cost incurred for such suspension road replacement since no other options left with him. Complainant’s car was delivered to him on 23.07.2021 along with service bill, in which the second service was skipped and mentioned as third service free service.  When the complainant asked the service person of the opposite party about left over the second free service, they replied that since the date of second free service was expired, third free service was recorded and all free service has completed. The car was sold in the month of October 2020 with three free services which was valid up to one year along with one year warranty. The complainant handed over his car for second free service in the month of June 2021 and the service period validity was available till October 2021. Without considering this validity period, the opposite party without giving proper intimation, intentionally skipped the second free service for the reason best known to them only. Complainant again observed that AC cooling system was not working properly and the same was immediately informed to the opposite party for which they replied that they will do AC repair work completely including other issues and asked the complainant to give some time for providing such service.  But after that despite repeated request, the opposite party never responded. Thus the complainant escalated the issue to the opposite party’s higher officer. The opposite party DGM responded to the complainant with new cooked up story that the complainant’s car warranty period was six months and the warranty period expired in the month of April 2021. On 25.09.2021 the complainant had replied to opposite party’s DGM stating that he had purchased his car with one year warranty provided with three free services and requested the opposite party’s DGM to verify the records and requested for immediate response. After receipt of the same, the opposite party’s DGM never responded back to the complainant.  The opposite party had given lot of assurances to the complainant for selling the car.  However, after selling it the opposite party’s behaviour had totally changed and especially they refused to give proper service as assured by them. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party for the relief mentioned above.

3. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A10 were submitted. Though notice was served to the opposite party on 19.12.2023 but he did not appear before this commission to file any written version and hence he was called absent and set exparte on 29.12.2023 for non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1)    Whether the complaint allegations against the opposite party in selling a defective vehicle and in not providing proper service rectifying the defects has been successfully proved by the complainant?

2)    If so, to what relief the complainant is entitled?

 Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

a)     The printed Statements for various amounts remitted to opposite party for purchase of car was marked as Ex.A1;

b)    Copy of pre-owned car booking/commitment checklist dated 08.09.2020 was marked as Ex.A2;

c)     Job sheet issued by the opposite party dated 18.12.2020 was marked as Ex.A3;

d)    Copy of Job Card Retail - Tax Invoice dated 23.07.2021 was marked as Ex.A4;

e)     Email communication was marked as Ex.A5;

f)      Legal notice issued by the complainant to the opposite party dated 11.04.2022 was marked as Ex.A6;

g)     Acknowledgement card for proof of delivery was marked as Ex.A7;

h)    Whatsapp chats between the complainant and the opposite party was marked as Ex.A8;

i)       Aadhar card of the complainant was marked as Ex.A9;

j)       Copy of Registration Certificate of car bearing No.TN 09 CB 7587 was marked as Ex.A10;

 4. The complainant/Party in Person submitted his written submissions with endorsement that the same may be treated as oral arguments and hence we perused the written submissions and other documents submitted by the complainant to decide the complaint on merits.

5. The crux of the submissions made by the complainant is that he purchased an used hand car namely SWIFT DZIRE 2015 MODEL from the opposite party who was a certified car Re-seller with one year warranty along with three free services.  Even though during the trial run the complainant noticed and complained about clutch hardness, bearing noise, low AC cooling, wheel wobbleness and shimmy in back left wheel to the opposite party, they agreed orally to resolve those issues before delivery of the car.  Believing the words the complainant paid the entire value of the car and took delivery of the same.  During the first service the same problem existed and when asked for the opposite party’s Service Personnel informed them that that it would be rectified during the 2^nd service.  Only during the service, the complainant came to know that the clutch was not replaced and also that no wheel alignment was done by the opposite party before delivering the car.  The service centre informed that they would replace the parts only with the consent of the opposite party.  When the complainant took up the issue with the higher officials of the opposite party, the DGM informed that the warranty period was only six months and not for one year. Further during 2^nd service, the Service Centre of the opposite party told the complainant that as no second service was done in time the second service was to be considered as 3^rd service.  Thus aggrieved the present complaint was filed by the complainant to take back the car and to refund the cost of the car along with compensation.

6. It is established that the car was purchased from the opposite party and that payment was made on several dates.  It is alleged that though the complainant informed even during the test drive about the problems related to clutch hardness, bearing noise, low AC cooling, wheel wobbleness and shimmy in back left wheel, the opposite party did not replace the clutch and did not align the wheels and did not rectify the other defects. Though two services were made the defects existed in the car.  The Job card was produced as Ex.A3 where it was seen that AC cooling and clutch tightness were serviced.  Further vide Ex.A4 dated 23.07.2021 it had been clearly mentioned that true value 3^rd free service and under the feedback it was mentioned that  clutch hard, tyre noise, rear shock absorber weak, 2^nd t/v free service due.  However, vide the same document it was seen that the complainant demanded repairs for NUT, JOINT COMP, FR STABILISER BAR, WHEEL TAG, CABIN AIR FILTER-CIAZ & NEW SWIFT etc.

7. As per Ex.A2 it is seen that the warranty period was for one year or 15,000 kilo meters.  It was submitted by the complainant that as the vehicle was not run for 15,000 kilo meters it has to be considered that the warranty existed for one year.  The opposite party had sent e-mail vide Ex.A5 that the warranty of the vehicle had expired after six months along with certificate where it is found that the vehicle was sold on 08.10.2020.  Therefore it is clear that the opposite party had clearly deceived the complainant that the warranty is for one year at the time of sales and manipulated the document to state that the warranty is only for 6 months which is a clear deficiency in service.  Further in the same certificate it has been mentioned that the vehicle is entitled for 3 free services, however, the complainant has contended and established that only two services has been made.

8. The opposite party did not appear before this commission to rebut the complaint allegations that the vehicle’s defects were rectified. As per the version of the complainant non rectification of defects gives a continuous cause of action for the complainant to file the complaint before this commission. Also a legal notice was issued to the opposite party on 11.04.2022 but they did not chose to send any reply notice.  In such facts and circumstances we have no other option but to conclude that the opposite party by reducing the warranty period unilaterally from one year to 6 months and in not carrying out the repairs as promised by them with regard to the clutch hardness, bearing noise, low AC cooling, wheel wobbleness and shimmy in back left wheel had clearly committed deficiency in service and unfair trade practice. Thus we answer the point accordingly in favour of the complainant and as against the opposite party.

Point No.2:-

9. As we have held above that the opposite party had committed deficiency in service and unfair trade practice we hold that the complainant was entitled to be compensated along with a direction to the opposite party to carry out the repairs to the complainant’s car within four weeks from the date of receipt of copy of this order or in default to refund the cost of car.  Towards compensation for the mental agony and hardship caused to the complainant we direct the opposite party to pay a compensation of Rs.10,000/- along with a cost of Rs.5,000/- towards litigation expenses.

In the result, the complaint is partly allowed against the opposite party directing them

a) To carry out the repairs to the complainant’s car within four weeks from the date of receipt of copy of this order.  If the defects are not rectified, we direct the opposite party to refund the cost of the car Rs.4,68,500/-(Rupees four lakhs sixty eight thousand five hundred only) thereafter with 6% interest from the date of complaint till realization;

b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

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 21^st day of February 2024.

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 MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

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MEMBER-II                                              MEMBER-I                                      PRESIDENT