BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY
C.C.No.22/2013
Dated this the 20th day of February 2018
(Date of Institution: 16.05.2013)
Jarina Begam, W/o Anwar Basha
No.2, D.Lane, V.V.P. Nagar, Thattanchavadi,
Pondicherry – 605 009.
…. Complainant
Vs
1. M/s Tata Motors Limited, rep. by its
Managing Director,
Bombay House,
Homi Modi Street, Mumbai – 400 001.
2. M/s Manakular Motors rep. by its Proprietor
Preshitta Complex
Villianur Main Road,
Reddiyarpalayam, Pondicherry – 605 010.
3. M/s Tata Finance Limited rep. by its
Managing Director
City Towers, 23, Gayathri Nagar
100 Feet Road, Mudaliarpet,
Pondicherry – 605 004.
4. M/s Royal Sundaram Alliance Insurance Co., Ltd.,
Rep. by its Managing Director
No.46, Whites Road, Chennai – 600 014.
…. 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 C. Jagadeesan, Advocate
FOR THE OPPOSITE PARTIES: M/s Law Solvers, Advocates for OP1,2&3
Thiru B. Mohandoss, Advocate for OP4.
O R D E R
(by Thiru V.V. STEEPHEN, Member)
This is a complaint filed by the complainant u/s 12 of the Consumer Protection Act 1986 directing the opposite parties to replace and deliver new vehicle Nano Car with new Registration Number, New Insurance Policy, Extra Warranty, Accessories as detailed in the Invoice No. 1223 dated 25.01.2011 and Radio (Pioneer) and on payment of life time registration fees by the first and second opposite parties or in the alternative to pay the cost of vehicle of Rs.2,26,688/- with 24% interest from 22.02.2011 till the date of payment; to pay damages of Rs.50,000/-; to pay Rs.50,000/- for sufferings and mental agony; to pay a sum of Rs.10,000/- towards cost of this complaint.
2. The case of the complainant is as follows:
The first opposite party is the manufacturer of Nano car and on 25.01.2011 she purchased a Nano Car bearing Regn. No. PY 01 BG 2646 from the second opposite party for Rs.2,26,688/-. On 21.02.2011 the complainant gave the vehicle for first free service with the second opposite party who undertaken to return the vehicle at 3.00 p.m. on the same day, however, at 5.00 p.m. when the complainant went to take delivery of the vehicle, the second opposite party informed that the vehicle met with an accident when it was taken out of the service station for trial run and the front side of the vehicle, Air Conditioners, engine and connected parts were totally damaged and they could not be replaced or repaired. Even if they repaired, the vehicle could not run smoothly and trouble frequently on running. The second opposite party failed to return the vehicle after first free service. The complainant purchased the said vehicle out of finance made by third opposite party and the complainant is to repay the loan amount at Rs.5,500/- per month for 42 months. The 4th opposite party has insured the vehicle and it is liable to pay the compensation for damages caused to the vehicle. On 4.3.2011 the complainant issued a legal notice to the opposite parties. All the opposite parties received the notice and the first opposite party sent reply dated 28.03.2011 and the second opposite party caused to reply to the said notice by admitting the facts, but denied its liability. On 16.05.2011 the complainant issued another notice to the first opposite party, though it was received by them, failed to respond. Hence, this complaint.
3. The reply version filed by the first opposite party briefly discloses the following:
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 has made misconceived and baseless allegations of manufacturing defect in the car without relying on any expert report from a recognized and notified laboratory under sec. 12 (1) of the Consumer Protection Act,1985 and deficiency in service without any documentary evidence. 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. This opposite party sells the cars and utility vehicles to the dealers, in this case to the second opposite party on a principal to principal basis for onward sale to the end customers. All the cars manufactured by this opposite party undergo strict quality checks, certified and thereafter dispatched to the dealers. After purchase, the vehicle of the complainant reported on 21.02.2011 at 1400 kms for the first free service and during test drive, the vehicle met with a minor accident by the driver of the second opposite party. Subsequently, the accidental repair done on the said vehicle by the first opposite party by welding / repairing sheet metal on free of cost basis. At present, there is no outstanding issue or problem with the said vehicle. After the repair, the opposite party dealer requested and reminded the complainant for taking delivery of the said vehicle. However, the complainant with the ill-motive was avoiding taking delivery of the said vehicle, but she had taken delivery of the said vehicle subsequently and enjoying the services of the said vehicle till date. On 12.10.2011 at 1502 kms. the vehicle was reported for general checks and rectifications with no complaints. The second opposite party provided necessary services. On 09.02.2012 at 1621 kms. for service with complaints of cold starting problem and fuel gauge inaccurate / nor working, when the fuel tank replaced, fuel tank unit removed and refit under the warranty apart from standard checks done and battery charging done on paid service basis. Again the vehicle of the complainant reported on 30.10.2012 at 12475 kms. at the service centre of Tafe Tach Ltd., when the r/r clutch cable changed, reconditioned wheel cylinder (each side) under warranty apart from oil changed, steering repair done, power window switch repairing done, wheel alignment and balancing done on paid service basis. Further, the complainant's vehicle was reported on 14.11.2012 at 13292 kms. Tafe Reach Ltd., for the running repairs and with the complaints of a/c cooling insufficient, check overall body and paint condition and for scheduled service when the condenser code replaced, front bumper repair done apart from vacuuming and washing on paid service basis. Again on 02.12.2012 at 14947 kms., on 26.02.2013 at 18448 kms. the vehicle was reported for service and some were done on free of cost and some were on paid basis. This opposite party further stated that the alleged cause of action pertaining to accident of the car as made in the complaint, transpired between the complainant and other opposite parties only, where this opposite party were in no way involved. The complainant has not pleaded any statement / averment against this opposite party, thus, there is neither any prima facie case being made out against this opposite party nor there is any cause of action arose in favour of complainant. This opposite party further stated that they are not a party to the financial arrangements. For the legal notice sent by the complainant, this opposite party sent reply. On thorough investigation of the problem, the claims of the complainant were found to be devoid of any merits. The problems / defects developed on the said vehicle due to the accident have been duly rectified by the service centre free of cost and at present, there is no outstanding issue in the vehicle. Hence, prayed for dismissal of the complaint.
4. The reply version filed by the third opposite party briefly discloses the following:
The complainant has been guilty of defaults in repayments which increases the overdue charges on the said amount. This opposite party is not responsible for any problem or defect in the vehicle or for service. The complainant has not produced any record to show that the vehicle in question is being used for his livelihood and hence, the complainant cannot be termed as a Consumer. The complainant availed financial assistance in the sum of Rs.1,97,737/- from this opposite party on 25.01.2011 and the same has to be repaid in 46 equated monthly instalments of Rs.5,500/- each. Other allegations are denied for want of knowledge. Hence, prayed for dismissal of the complaint.
5. The reply version filed by the 4th opposite party discloses the following:
The complaint as filed is misconceived, not tenable and is an abuse of process of law. The complainant has suppressed material facts. The complaint is not maintainable since it is barred by limitation. The services rendered by the second opposite party for free of charge does not come within the purview of the definition of word "SERVICE". There is no iota of allegation against this opposite party. The complainant's vehicle allegedly met with an accident while the same was in the custody of 2nd opposite party and therefore, the risk cover on the said vehicle's mishaps was covered under the appropriate liability policies held by 2nd opposite party and the said claim is payable by 2nd opposite party as accident happened while the vehicle was in their custody under a specific contract of bailment and there is no deficiency in service on the part of this opposite party. Hence, prayed for dismissal of the complaint.
6. For the complaint of the complainant, all the opposite parties have filed their respective reply versions, but neither the complainant nor any of the opposite parties have chosen to examine themselves to let in oral evidence.
7. Points for determination are:
- Whether the Complainant is a Consumer?
- Whether any deficiency of service is attributed by the Opposite Parties?
- Whether the complainant is entitled for any relief?
8. On the perusal of the complaint and documents filed in support of the complaint and reply version of the respective opposite parties, this Forum had made observations as follows and for the convenience sake, the documents filed by the complainant are referred by the Forum as document No. 1 to 14 in the observation of this case.
9. Point No.1:
The complainant herein purchased a Nano Car vide Registration No. PY 01 BG 2646 manufactured by the first opposite party through the 2nd opposite party who is the authorised dealer of the first opposite party vide document No.1. On the perusal of the document Nos. 1 and 6, it is observed that the vehicle aforementioned was purchased on finance by the 3rd opposite party and insured with the 4th opposite party vide document No.3. Hence, the complainant is considered to be a Consumer as against all the opposite parties.
10. Point No.2:
The complainant has averred in his complaint that the complainant herein purchased a Nano Car vide Regn. No. PY 01 BG 2646 manufactured by the first opposite party through the second opposite party who is the authorised dealer of the first opposite party vide document No.1. Thereupon after running the vehicle for 1500 kms, the complainant left the car with the 2nd opposite party on 22.02.2011 for first free service and the 2nd opposite party undertook to deliver the car on the same day i.e. on 22.2.2011, but when the complainant went to take delivery of the car from the 2nd opposite after the first free service, it was informed by the second opposite party that the vehicle met with an accident when it was taken out for trial run after the service by the staff of the second opposite party concern and found that the front side of the vehicle, Air Condition engine and other parts were totally damaged. The complainant called upon the first and second opposite parties to replace the car with a new one but refused. It is further averred by the complainant that since the car involved in the accident was insured with the 4th opposite party, the claim by the complainant against 4th opposite party for damages was also refused. Hence, this complaint.
11. The opposite parties have filed their respective reply versions and it was submitted by the first opposite party that there was no allegation of manufacturing defect as against the first opposite party and further the alleged that accident was caused only by the 2nd opposite party and hence, the first opposite party could not be held liable for the defect caused by the 2nd opposite party.
12. The second opposite party submitted that even though the accident was caused by the second opposite, it only caused a slight dent in front bumper and the AC condenser and it was rectified and there was no damages as alleged by the complainant. Hence, the claim of the complainant for the replacement of the car with new one against the second opposite party is not maintainable.
13. The 3rd opposite party submitted that it is the complainant who has to pay the instalments which has become over due and further there is no allegations on the grievances as against the 3rd opposite party and the complaint has to be dismissed as against OP3.
14. The 4th opposite party submitted that it is the 2nd opposite party who could be held liable for the damages caused to the vehicle as the damages was caused by the Staff of the 2nd opposite party concern, while it was in the custody of the second opposite party and hence, the complaint is not maintainable as against the 4th opposite party.
15. On the perusal of the complaint, it was observed by the Forum that the complaint does not contain any allegation or grievances as against 3rd and 4th opposite parties and the issue to be settled is only between the complainant and the opposite parties 1 and 2.
16. It is observed by the Forum that the readings of the complaint does not reveal anything about the grievances of the manufacturing defect as against the first opposite party, but the contention of the complainant is that since the 2nd opposite party is the authorised service centre of the first opposite party and further the first opposite has undertaken to resolve the issue if the grievances of the complainant are genuine vide document No. 12, the first opposite party should be made liable. On the perusal of the complaint and the reply notice of the 2nd opposite party referred herein as document No.11, it is observed that the damage was caused to the vehicle of the complainant when it was taken out for trial run by the staff of the second opposite party concern after the first free service. Further the second opposite party adopted the reply version filed by the first opposite party, wherein, it states that the first opposite party cannot be held liable for the act of the other opposite parties and since the second opposite party adopted the reply version of the first opposite party, the averments pleaded by the first opposite party binds the second opposite party. Those averments were not objected by the second opposite party and in these circumstances, it is held by the Forum that the first opposite party cannot be fixed for liabilities as against the complainant.
17. With regard to the second opposite, it is observed that the second opposite has admitted in reply version and the reply notice referred as document No.11 that the vehicle of the complainant met with an accident when it was taken for trial run of the vehicle by the second opposite party after first free service of the vehicle. On the perusal of document No.11, it is observed that the second opposite party has placed orders for replacement of the damaged parts of the vehicle i.e. Bumper and Condensers thereby affirming the averments of the complainant and hence, the contention of the 2nd opposite party that there was only a slight defect in the car cannot be accepted. Further, the perusal of Document No.1 and Document No.11 shows that the car got damaged by the second opposite party within one month from the date of purchase of the car by the complainant by the act of the second opposite party and that major parts were damaged and replaced and in these circumstances, there is no justification in the act of the second opposite party expecting the complainant to take the damaged car which was left as new for service with the second opposite party.
18. It is further contended by the second opposite party that the complainant had taken the vehicle from the second opposite party after setting right the defects that occurred due to the accident in the first free service and thereafter that the complainant reported before the second opposite party for several service of the vehicle by the second opposite party and lastly reported on 26.02.2013 after the vehicle covered 18,448 kms. and was taken back by the complainant after due service. But, no documentary evidence was filed to substantiate the contents of the second opposite party and hence the contention of the 2nd opposite party cannot be taken into consideration. Since the OP2 failed to prove the contention the averments pleaded by the complainant prevails and OP2 is held liable for the claim of the complainant. Further contention of the second opposite party that the complainant is not a Consumer as the service of the car was done free of charge cannot be taken into consideration as the service offered by the second opposite party was only in the pursuance of sale consideration received by the 2nd opposite party for the purchase of the complaint mentioned car.
19. It is observed by the Forum that the vehicle being bought through the finance of the 3rd opposite party, and getting damaged within one month from the date of the purchase of the new car, thereby denying the right of enjoying the use of new car and consequential financial loss due to the negligent act of the 2nd opposite party would have caused great mental agony and hardship and hence, the complainant has to be necessarily compensated monetarily to meet the ends of justice.
20. With regard to the 3rd opposite party, it is observed by the Forum that since no grievances on allegation raised against OP3, the complaint is unsustainable as against the OP3 and with regard to the claim against OP4, it was held by the Forum that since the second opposite party was held liable by this Forum, the issue of compensation for damages to the car by OP4 does not arise. Further the contention of OP4 that since the accident of the car occurred when it was in the custody of OP2 and the OP2 is "bailee" of the vehicle when entrusted by the complainant for service and it is only the OP2 could be held liable is taken into consideration and this Forum holds view that the complaint is not maintainable against the 4th opposite party.
21. In view of the discussions made in the aforementioned paras, it is held by the Forum that the OP2 alone is held liable for mental agony, loss and hardship suffered by the complainant due to the deficiency of service by the second opposite party. This point is answered accordingly.
22. Point No.3:
In the result, the complaint is allowed against the second opposite party and dismissed as against the other opposite parties. The second opposite party is directed :
1. To pay a sum of Rs.2,26,688/- to the complainant being the on road cost of new Nano Car.
2. To pay Rs.25,000/- to the complainant due to loss, hardship and mental agony;
3. To pay a sum of Rs.5000/- towards the cost of the proceedings.
4. On compliance of the above order (i) the second opposite party shall be permitted to retain and possess the complaint mentioned car; (ii) the complainant is hereby directed to transfer the ownership of the vehicle.
Dated this the 20th day of February 2018.
- ASOKAN)
PRESIDENT
(V.V. STEEPHEN)
MEMBER
(D. KAVITHA)
MEMBER
COMPLAINANTS' WITNESS: NIL
OPPOSITE PARTY'S WITNESS: NIL
COMPLAINANT'S SIDE DOCUMENTS:
Doc. No.1 | 31.01.2001 | Photocopy of Tax Invoice issued by OP2 |
Doc. No.2 | 25.01.2011 | Photocopy of Accessories Spares Invoice of OP2 |
Doc. No.3 | 25.01.2011 | Photocopy of Insurance Policy of OP4 |
Doc. No.4 | 25.01.2011 | Photocopy of Debit Note of OP2 |
Doc. No.5 | 25.01.2011 | Photocopy of Vehicle Delivery Acknowledgement Note |
Doc. No.6 | 25.01.2011 | Photocopy of RC Book of vehicle bearing Regn. No. PY 01 BG 2646 |
Doc. No.7 | | Photocopy of Job slip given by OP2 |
Doc. No.8 | 04.03.2011 | Photocopy of legal notice issued by Counsel for complainant to Opposite Parties |
Doc. No.9 | | Photocopy of acknowledgement card of OP3 |
Doc. No.10 | | Photocopy of acknowledgement card of OP4 |
Doc. No.11 | 23.03.2011 | Photocopy of reply notice sent by Counsel for OPs 1 and 2 |
Doc. No.12 | 28.03.2011 | Photocopy of reply sent by OP1 |
Doc. No.13 | 16.05.2011 | Photocopy of letter send by Counsel for Complainant to OP1 |
Doc. No.14 | | Photocopy of acknowledgement card of OP1 |
OPPOSITE PARTY'S EXHIBITS: NIL
LIST OF MATERIAL OBJECTS: NIL
- ASOKAN)
PRESIDENT
(V.V. STEEPHEN)
MEMBER
(D. KAVITHA)
MEMBER
