By: Sri. . Mohandasan K., President
Complaint in short is as follows: -
1. The complainant is a driver by profession and he was in abroad for 25 years and worked as driver. Later he returned from aboard and for his livelihood decided to purchase a vehicle and accordingly contacted the opposite party. The opposite party introduced a vehicle of Tata Winger Model with 13 seating capacity. The opposite party assured warranty for 300000 kilometers or three years. The vehicle at the time of filing this complaint had crossed 16000 kilometers.
2. The complainant purchased the vehicle on 04/04/2019 remitting an amount of Rs.11,34,350/-. In addition to that amount, complainant remitted Rs.53,200/- towards tax, insurance, GPS, registration fees, number plate and incidental expenses. The complainant submit that he paid total amount of Rs.11,87,550/- and the vehicle got numbered as KL 10 BC 4215. The opposite party assured quality and safety comparing to other vehicles of the same specification.
3. The complainant submits that while the vehicle covered 9000 kilometer itself, on 28/12/2019 while the vehicle was moving to Quilon the vehicle became defective when reached at Ernakulum. The clutch of the vehicle was burned and the trip of the vehicle interrupted. The incident took place on a Saturday night and the next day, being Sunday, he could take the vehicle only on Monday to the work shop. The vehicle was taken to the workshop by towing. He spent Rs.2,250/- for towing. Thereafter also the complainant undertaken various trips but all the occasion there were problems for the vehicle like to shock absorber and spring of the vehicle. Hence complainant lost several engagements. On 18/01/2020 while the complainant driving the vehicle to the koyilandy as part of a trip, the axil of the vehicle became defective and so the passengers of the vehicle was shifted to another bus. Due to non-availability of parts of the vehicle, the vehicle was kept at Calicut town for the next 10 days and thereafter only it was taken to popular company work shop at Ramanattukkara. The complainant submits that during these periods the complainant was not able to go for any work and there for caused huge financial loss. Thereafter few days the axil of the vehicle also became defective. The clutch disc rectified from Ernakulam Tata shop which had already rectified from Manjeri. Thereafter the complainant under took a trip on 12/11/2020 to Pothukkallu and while driving the vehicle clutch disc was burned and the trip was interrupted. Thereafter he replaced clutch disc from the work shop spending Rs.7,350/-
4. The complainant submit that the vehicle was defective from the date of purchase itself. Complainant submit that he lost nearly 3,00,000/- rupees due to the defects of the vehicle. The complainant could not provide proper and effective service to the passengers. Due to the defect to the vehicle the passengers did not opt the vehicle of the complainant. The complainant approached the opposite party with complaints but there was no proper response from the side of opposite party. The complainant being a Pravasi, he purchased the vehicle for livelihood of his family. But due to the defects of the vehicle he suffered financial as well as other losses. The shock absorber, clutch disc, axil of the vehicle is not suitable for the smooth running of the vehicle. The experts of the vehicle have stated the above fact to the complainant. Hence the complainant demands for assurance at least for one year that the vehicle will be defect free and if at all any defects causes to the vehicle that the opposite party should rectify the defect. The complainant further suggests to refund the amount received from the complainant or to replace with a new defect free vehicle. The complainant also demands other expenses met by the complainant worth Rs.53,200/- along with towing charge 2,250/- rupees, cost of clutch disc Rs. 7,350/- along with compensation of 3.00,000/- rupees, cost of the proceedings Rs.1,00,000/- and Rs.3,00,000/- on account of defective service and thereby caused inconvenience and hardship to the complainant.
5. On admission of the complainant notice was issued to the opposite party and the opposite party entered appearance and filed version.
6. The contention of the opposite party is that complaint is not maintainable and there is defect of non-jointer of necessary parties. The opposite party submitted that they are only an employee of popular mega motors, a dealer cum service center of Tata manufactured vehicles. The case of the complainant is with respect to shock absorber, clutch disc and axil installed in the subject matter vehicle are not sufficient to the appropriate usage of the vehicle. The question put forward by the complainant is pertaining to the manufacturing design of the vehicle and the opposite party have no any control on the manufacturing design of the vehicles of the Tata motors and the same is with the exclusive authority of the Tata Motors and so without impleading the Tata motors in the party array, the complaint is to be dismissed for non- jointer of necessary parties. The complaint is to be dismissed for misjoinder of the present opposite party. The opposite party is only an employee of the popular mega motors. No specific allegation is against the opposite party. The complainant is not having a case that the actions of the opposite party is over and above his position as the showroom manager of the popular mega motors and the opposite party had dealt with the complainant in his personal capacity. The opposite party is only a showroom manager of the popular mega motors, while the allegations of the complainant are pertaining to the service obtained by the complainant from various service stations of the popular mega motors and its fellow service centers of Tata motors. The opposite party is not having any control over the service provided by these service stations. The complainant had obtained service of his vehicle even from Apco auto mobiles Pvt. Limited and focus motors, which are other dealers cum service stations of the Tata Motors. Hence the submission of the opposite party is that they are unnecessary party in the present complaint and impleaded only with intention to persuaded popular mega motors and Tata motors to heed to his illegal demand for warranty over and above the warranty already provided to the vehicle, as per the warranty contract.
7. The popular mega motors are selling the Tata manufactured vehicle without making any alteration or modification of the same. It is not exercising any control over the designing, teasing or manufacturing of the Tata vehicles. The vehicle purchased by the complainant is sold by the popular mega motors adhere into the specifications of the manufacturer and along with the manual for usage of the vehicle issued by the manufacturer. Subsequently the selling of the vehicle, as accepted by the complainant, the poplar mega motors had provided all the services to the vehicle as per the specifications of the its manufacturer, the Tata motors, utilizing the spare parts provided by the manufacturer. So, the status of the popular mega motors is only that of a product seller cum service provider. Hence, the opposite party is not offering any warranty to the product of Tata, other than the warranty of the vehicle offered by the manufacture. The demand of the complainant to give warranty regarding non-appearance of any defects to the vehicle up to 100000 kilometers is not sustainable in the eye of law. The warranty of the vehicle is provided by the manufactures as per the terms and conditions of the warranty. The opposite party or popular mega motors are not bound under any law for time being in force or under any contract, to provide any warranty to the vehicle. The defect sustained to the vehicle are the wear and tear defects and those which are caused due to the driving of the same in contradictions of the mandates provided under the usage manual and hence not covered by the warranty terms and conditions.
8. The opposite party further submitted that the complainant is not a consumer as defined under section 2(7) of the Consumer Protection Act, 2019. The complainant is a business man and he purchased the vehicle for commercial purpose and for the flourishment of his business and on that ground also the complaint is liable to be dismissed.
9. The complainant and opposite parties filed affidavit it and documents. The document on the side of complainant marked as Ext. A1 to A12. Opposite party side documents marked as Ext. B1 to B3 series. Ext. A1 is copy of tax invoice dated 29/03/2019. Ext.A2 is copy of receipt issued by Kripa Crane service dated 30/12/2019. Ext. A3 is copy of RC bearing vehicle No. KL10 BC 4215. Ext. A4 is copy of driving license No.10/100711/1997, dated 21/05/2019. Ext. A5 is copy of inventory check list dated 31/05/2019. Ext. A6 is copy of inventory check list dated 30/09/2019. Ext. A7 is copy of inventory check list dated 04/01/2020. Ext. A8 is copy of service check list job order dated 27/01/2020. Ext. A9 is receipt issued by JM. Auto garage, Pandikkad dated 13/11/2020. Ext. A10 is copy of certificate issued by car point Oruvampuam , Pandikkad , Malappuram. Ext. A11 is copy of SB account statement of 25/03/2019 issued by Vettikattiri service cooperative bank. Ext. A12 is copy of statement of account issued by ICIC bank. Ext. B1 is service check list / job order dated 31/12/2019. Ext. B2 is copy of tax invoice. Ext. B3 is service check list / job order dated 03/02/2020. Commissioner’s report marked as Ext. C1.
Heard complainant and opposite parties. Perused affidavit and documents.
The following points arise for consideration-
- Whether the vehicle of the complainant suffering from any defect?
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
10. Point No.1
The case of the complainant is that he is driver by profession and for the lively hood he purchased the vehicle from the opposite party on 04/04/2019. The price of the vehicle was Rs.11,87,550/- and vehicle was numbered as KL 10 BC 4215. The opposite party had assured the vehicle was good quality one comparing with other vehicles having the same specification. There was warranty for three years or up to 300000 kilometers. But the vehicle started with complaints within short period and he was compelled to take the vehicle to various authorized service centers frequently. Due to defects to the vehicle several trips were cancelled and the travellers did not opt complainant’s vehicle. Though he approached authorized service centers of the manufacturer of the vehicle none of them properly identified the defect of the vehicle, even the opposite party. The allegation of the complainant is that the opposite party from where the vehicle was purchased is liable to rectify the defect of the vehicle or to replace the vehicle.
11. The opposite party submitted that they are unnecessary party in the proceedings and the real party is the manufacturer who is to be impleaded as party in the proceedings. The submission of the opposite party is that the complaint is with respect to shock absorber, clutch disk and axil installed in the vehicle are not sufficient to appropriate usage of the vehicle and they are pertaining to the manufacturing designs of the vehicle and the opposite party have no any control on the manufacturing design of the vehicle of the Tata Motors and so without impleading the Tata Motors in the party array the complaint is to be dismissed for non-jointer of necessary parties. The submission of the opposite party is that they are only an employ of the popular mega motors and there is no case against the opposite party. The opposite party further contended the complainant availed services from various service stations of the popular mega motors and they do not have any control over the service provided by those service stations.
12. The point is to be considered herein is whether the vehicle was with defective and whether the allegations of the complainant stands proved. The complainant produced various documents to show the services done to the vehicle during the short period between the purchase of the vehicle and the filing of the complaint as per the averment in the affidavit. The vehicle was purchased on 04/04/2019 and the present complaint filed on 18/11/2020 within 18 months from the date of purchase. The service history shows that the vehicle was taken for service more than 17 occasions. On all occasions the reported complaints were of similar nature. The grievance of the complainant is that the opposite party or the authorized service center of the manufacturer could not properly rectify the defect of the vehicle. After filing this complaint, the complainant has taken steps to issue an expert commission to ascertain the defect of the vehicle and the commissioner filed report which is marked as Ext. C1. Ext. C1 report reveals that he conducted trial run in order to find out the complaints of the vehicle along with registered owner and a technician from the Poplar mega motors. The commissioner reported that on trial run it is fund that both front suspension in rigid condition and it is because of defective McPherson Sturt suspension system and it need to be replaced. It is further reported that there is sound coming from both front drive shafts while taking turnings and it is due to defective drive shafts and need replacement. The commissioner reported that there is complaint regarding clutch wear at 9857 kilometers. It is found almost all parts including clutch disc, clutch pressure plate, clutch release bearing, clutch master cylinder replaced at the time of repair. Even after replacing these parts again same complaint happened around 2000 kilometers which means the terrain which the vehicle is frequently using or the driving habits like clutch pedal driving, more use of clutch at partially engaged condition may be the reason of clutch wear. In addition to C1 document, Ext. A10 which is a certificate issued from service Centre called car point also certified that the vehicle is not with leaf set but with shock absorbed spring. The vehicle has got complaint of wheel brake jam while turning the vehicle. So it is no doubt that the vehicle has got defects as alleged by the complainant and the same stands proved by the Ext. C1, A1 and job card Ext. B2.
13. Point No.2
The contention of the opposite party is that there is only dealer cum service provider and there is no responsibly for them for the services availed by the complainant from the other service centers of the manufacturer. The case of complainant is that the complainant purchased the vehicle from the opposite party who is admittedly dealer cum authorized service centre of the vehicle. The opposite party has no contention that the vehicle is defect free. The opposite party did not care to take proper steps to analyze the exact defect of the vehicle and to avail proper remedy to the complainant. The opposite party being the authorized service centre of the vehicle, is liable to find out exact defect of the vehicle and also report whether it is repairable one or to be replaced considering as manufacturing defect. The contention of the opposite party is that the vehicle was availed service from various authorized service centers itself shows that the vehicle met with intermittently complaints while plying the vehicle. The submission of the complainant is that he was compelled to break his trip to Quilon from Ernakulum and thereafter he was considering to break his journey from Calicut and also same type of incident repeated while he was plying the vehicle to Pothukallu. Hence the complainant was dragging to the various authorized service centers of the vehicle and for which the complaint is not at all reasonable. The opposite party is with responsibility to identify the defects of the vehicle and liable to provide proper service by rectifying the defects to the complaint if the opposite party is not able to rectify the defects, report the defects as manufacturing one. It is also the responsibility of the opposite party to report the same both to the complainant and also to the manufacturer. In this complaint the opposite party failed to provide proper service to the complainant and also failed to report the manufacturing defect of the vehicle. So, we find that there is deficiency in service on the part of the opposite party.
14. Pont No.3
The submission of the complainant is that he was in abroad for more than 25 years and he was engaged in driving profession, only for his livelihood he purchased vehicle. But due to the defects of the vehicle and non-maintaining of the assured quality of the vehicle he met with difficulties. He sustained huge financial loss and even now is not able to utilize the vehicle for the purpose of earning livelihood. Ext.A4 the driving license shows that he was issued the driving license in the year 1985 and he is having badge from 1997. So the defect mentioned to the vehicle by the expert commissioner cannot be hold correct that the driving habit may be the reason of excessive clutch way. But the complainant in this matter could not establish with proper documents to the exact extend of financial loss. The Commission is not able to quantify the exact extend of pecuniary loss sustained to the complainant due to want of proper documents. But we find that the complainant sustained financial loss due to broken trips and intermittent dragging of vehicle to the service center. So we find that Rs.1,00,000/- will be a reasonable amount as compensation on account of financial loss sustained to the complainant due to the defective and deficient service on the part of the opposite party. In addition to that the complainant is entitled due rectification of the defects of the vehicle. The claim of the complainant is to refund the cost of the vehicle and also to pay compensation of Rs.3,00,000/-. We do not find that the claim of the complainant as reasonable one. The complainant has not taken steps to implead the manufacture of the vehicle so what can be directed is to rectify the defect under warranty condition as reported in Ext. C1 expert commission report. Hence, we direct the opposite party to rectify the defects properly as reported through Ext. C1 commission report and which is to be done within a reasonable period. The complainant also entitled for a reasonable amount as cost of the proceedings. We also allow Rs.10,000/- as cost.
15. In the light of above facts and circumstance, we allow this complaint as follows: -
1) The opposite party is directed to rectify defects under warranty condition reported by the expert commissioner in Ext. C1, the commission report within two months from the date of receipt of the copy of this order.
2) The opposite party is directed to pay Rs.1,00,000/- as compensation to the complainant on account of defective service and thereby caused inconvenience and hardships to the complainant.
3) The opposite party also directed to pay Rs.10,000/- as cost of the proceedings to the complainant.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled interest at the rate of 9% per annum for the above said amount Rs.1,100,00/- from the date of this order till the date of payment
Dated this 11th day of January, 2023.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A12
Ext.A1: Copy of tax invoice dated 29/03/2019.
Ext.A2: Copy of receipt issued by Kripa Crane service dated 30/12/2019.
Ext A3: Copy of RC bearing vehicle No. KL10 BC 4215.
Ext A4: Copy of driving license No.10/100711/1997, dated 21/05/2019.
Ext A5: Copy of inventory check list dated 31/05/2019.
Ext.A6: Copy of inventory check list dated 30/09/2019.
Ext.A7: Copy of inventory check list dated 04/01/2020.
Ext A8: Copy of service check list job order dated 27/01/2020.
Ext A9: Receipt issued by JM. Auto garage, Pandikkad dated 13/11/2020.
Ext A10: Copy of certificate issued by car point Oruvampuam , Pandikkad ,
Malappuram.
Ext.A11: Copy of SB account statement of 25/03/2019 issued by Vettikattiri service cooperative bank.
Ext.A12: Copy of statement of account issued by ICIC bank.
Witness examined on the side of the opposite party: DW1
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Service check list / job order dated 31/12/2019.
Ext.B2: Copy of tax invoice.
Ext.B3: Service check list / job order dated 03/02/2020.
Mohandasan K., President
Preethi Sivaraman C., Member
VPH Mohamed Ismayil C.V., Member
