BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.17/2010

Dated this the 22^nd day of April 2016.

(Date of Institution: 31.03.2010)

Gandhi, son of Jayaraman

No.15/16, New Street, Thiruvannamalai Road

Gingee, Villupuram District

Tamil Nadu.

….     Complainant

vs

1. The Seller                         

    M/s P.LA. TVS Motors    

    Near Indira Gandhi Statue

    100 ft. road, Puducherry.

2. The Dealer          

    TVS Motors Company,    

    No.38, SPL Nivas, First Floor

    Venkatakrishna Road

    Mandhaiveli    

    Chennai.                           

3. The Manufacturer

    TVS Motors,

     HARISTA, Post Box No.4

     Hosur Taluk.

    Tamil Nadu

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Tvl. V. Karunamoorthy and P. Rajaraman, Advocates                    

FOR THE OPPOSITE PARTIES: Thiru G.M. Balaji, Advocate.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for ;

1. Directing the first opposite Party to replace the motor cycle purchased by the complainant on 18.06.2008 or to return the cost of the same;
2. Directing the opposite parties 1 to 3 to pay a compensation of Rs.2.00 lakhs for the mental agonies sustained by the complainant; and
3. to pay the cost of the complaint.

2.  The case of the complainant is as follows:

          The complainant herein had purchased a TVS Flame 125 DISC S. GREY in Black motor cycle bearing Regn. No. PY 01 AQ 9600, Chasis No. 626 BF 6281 E 29479 delivered on 18.06.2008 by paying a sum of Rs.47,365/- i.e. Rs.12,000/- on 31.05.2008, Rs.4,195/- on 02.06.2008 by him and the remaining through M/s Sri Ram City Union Finance Ltd.  The complainant made regular service to the vehicle on 18.07.2008, 18.09.2008, 18.12.2008, 18.03.2009 and 18.06.2006 respectively.  While the things being so, on 27.09.2009 at about 5.00 p.m. when he was riding the motor cycle in a slow manner, the Main Axil was cut off, however, he escaped from such incident.  Due to sudden cut of vehicle, he could not use the  vehicle and thereby he could not attend his day to day works.  The complainant shown the motor cycle with a Mechanic, who informed him that the vehicle could not be used and also it is unsafe to ride the motor cycle further and in this regard, he gave a certificate also.   The complainant informed the same to the first opposite party through phone, but there was no reply from them.  Thereafter, the complainant sent informed through an Advocate from Gingee and then  legal notice on 1.10.2009 to the opposite parties.  Thereafter, the first opposite party sent a Mechanic from their company who inspected the vehicle and told that he could not repair it and also asked the complainant to repair it by himself.  Again on 21.10.2009, the complainant send a legal notice to the opposite parties, however, there was no reply from them.  The opposite parties committed deficiency in service and also due to the act of the opposite parties, he sustained loss and mental agony.  Hence, this complaint.

3.       The reply version of the second opposite party is as follows:

The complaint filed by the complainant is absolutely premature and devoid of merits.  The complaint alleged allegations have not truth.  There was not communication of whatsoever nature attributing any alleged manufacturing defect or any alleged deficiency in service.  The vehicle was delivered to the complainant by the first opposite party after effecting a thorough pre-delivery inspection and delivered in good condition.  It is true that the vehicle is under warranty conditions.  It is the responsibility of the complainant to get the services from time to time stipulated in the service coupons.  When the motor vehicle is covered by warranty conditions, there is no obligation on the part of the manufacturer for replacement of the vehicle.  If the component is found to be defective, then the opposite parties shall replace the component only and not the vehicle.  The complaint is filed after one year and three months of the purchase and the complainant used the vehicle for more than 17940 kms.  The complainant has been availing "service support" from the first opposite party.  Hence, there is no deficiency in service.  These opposite parties relied upon a judgment passed by the Hon'ble National Commission in R. Bhaskar vs DN Udhani and another [2007 CTJ 129 CP], wherein, it was held that "if a particular part of a machine is having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer if he is asked to replace the machine as a whole."  The complainant has not disclosed any expert evidence or any facts having reasons to believe or to come to the conclusion that the vehicle has alleged manufacturing defects.  The complainant does not disclose any cause of action or particulars as to what constitutes manufacturing defect in his vehicle and how he came to such understanding to allege that the vehicle has alleged manufacturing defect.  The complainant has neither produced the vehicle in question before this Forum and its inspection nor caused the same for inspection / appropriate test by listed technical institutions like ARAI or VRDE or the  complainant has pre-delivered the vehicle with prior notice to the opposite parties for technical inspection or analysis or conducted any technical tests in the presence of the opposite parties.  The opposite parties have every reason to believe that the complainant may cause serious damage to the vehicle so as to wrongly make out case and deprive them from establishing their defence.  The complainant has failed to discharge the mandatory obligation and the complaint is on record without any material evidence or experts' evidence on alleged manufacturing defect.  The complaint in order to work out a wrongful gain decided to file the complaint by alleging one after the other various such alleged defects in the complaint but during these period, there was no notice or information in writing by the complainant to the second and third opposite parties.  In the event of complicated question of facts, a civil court only can have jurisdiction to deal with the complainant.  Summary disposal as contemplated under the Consumer Protection Act 1986 will not bring out full facts necessary to arrive at a just conclusion.  That after receipt of notice, their Service Executive visited the complainant, inspected the vehicle and found "the swing arm bolt was welded, but there was no scratch marks of breakage as alleged by the complainant".  After 7.4.2009 the complainant never brought the vehicle before the first opposite party.  The complainant has not made regular periodical services.  Further, after receipt of notice from the complainant, the opposite parties 2 and 3 replied to the complainant to meet the opposite Party No.1 for necessary servicing.  That the issue of maintainability of the complaint against the opposite parties are to be taken as preliminary issue.  Hence, prayed for dismissal of the complaint.

 4.      On the side of the complainant, Exs.C1 to C9 marked.  On the side of the opposite parties, no evidence was let in and no documents were marked.

5.       Points for determination are :

1. Whether the Complainant is the consumer?
2. Whether the opposite parties attributed deficiency in service?
3. To what relief the complainant is entitled for?

6.       Point No.1:

          The complainant has purchased a TVS Flame 125 DISC S. GREY in Black motor cycle bearing Regn. No. PY 01 AQ 9600, Chasis No. 626 BF 6281 E 29479 on 18.06.2008 by paying a sum of Rs.47,365/- vide Ex.C1 vehicle invoice.   Hence the complainant is the consumer for the opposite parties as per the Consumer Protection Act.

          7.  Point No.2:

We have perused the complaint, Exs.C1 to C9, reply version of the opposite parties 2 and 3 and the evidence of CW1.  Though the opposite parties 2 and 3 filed reply version, no oral evidence was adduced by them. The case of the complainant is that the complainant has purchased one TVS Flame Motor cycle bearing Regn. No. PY 01 AQ 9600 on 18.06.2008 vide Ex.C1  for his personal use from the first opposite party and periodically the vehicle was serviced by the opposite party No.1.  On 27.09.2009 at about 5.00 p.m. when he was riding the vehicle, the main axil of the vehicle was cut of and on showing the vehicle with a Mechanic who stated that it is not safe to ride the vehicle further.  Hence, the complainant informed the same to the first opposite party, but no response was made to his complaint. Hence, he issued legal notice to the opposite parties on 01.10.2009 vide Ex.C5 which was acknowledged by them vide Ex.C6.  Even then he did not receive any reply from the opposite Parties and hence, the complainant issued a final notice Ex.C7 through his Counsel to the opposite parties on 21.10.2009 and the same was received by the opposite parties vide Ex.C8.  On receipt of notice from the complainant, the first opposite party sent a Mechanic who inspected the vehicle and stated that the vehicle could not be repaired and asked the complainant to repair the vehicle on his own cost.  Aggrieved by the same, the complainant filed this complaint. 

8. On the other hand, the opposite parties alleged that during the time of service made to the vehicle by the first opposite party, there was no complaint of manufacturing defect on the vehicle.  Further the vehicle is under warranty conditions and the vehicle was run to a tune of 17,440 kms. and the alleged complain made only on 27.09.2009 i.e. after almost more than one year and three months time. Since the vehicle is under warranty, if any defect occurred, they will replace the parts of the vehicle, but, they will not replace the whole vehicle.   Further alleged that there is no deficiency in service on their part since they have promptly attended the service requests made by the complainant with regard to the complaint alleged vehicle.  It is also alleged by the opposite parties that the complainant has neither produced the vehicle in question before this Forum for its inspection nor caused the same for inspection by listed technical institutions.  The Ex.C3 has no validity since it is issued by an unauthorised person.  Further stated that the complainant may cause serious damage to the vehicle so as to wrongly made out case and deprive them from establishing their defence. 

9.       From the facts and circumstances above, the question before the Forum is whether the complaint is maintainable or not as alleged by the Opposite Parties.  The vehicle in dispute is under warranty period, hence, the complaint is maintainable.  The other question arose is whether the alleged vehicle can be used for riding by the complainant with safety.  From the material records available in this case, it is clear that immediately after the alleged main axil was cut in the vehicle, the complainant approached the first opposite party over phone, but they have not responded for the same.  The complainant issued a  notice on 01.10.2009 vide Ex.C5 for return of the money paid by the complainant for the vehicle.   The first opposite party sent a Mechanic who also inspected the vehicle and stated that the cost of the repair should be borne by the complainant.    When the complainant shown the vehicle to a Mechanic at Gingee, he had stated that because of inferior quality of axil used in the vehicle, the crack and cut was happen.  If they have provided superior quality, the main axil cut would not cause.  It is pertinent to mention here that the vehicle was used by the complainant for his day to day works.    The main axil is the vital part of a vehicle, all other parts of the vehicle is fitted on the main axil only.   It is the allegation of the opposite parties that the complainant has not subjected the vehicle for inspection with an expert.  Generally, if any problem caused to a vehicle, it should be informed to the dealer of the vehicle and then to the Mechanic who is immediately available nearby to that area.  In this case, the Mechanic of the Opposite Party only advised the complainant to rectify the repair on his own risk and cost.   Further stated that the main axil bolt was welded and used by the complainant.  The complainant also shown the vehicle with a Mechanic nearby his residence, who also advised that it is not safe to run the vehicle.  The opposite parties alleged that if the vehicle is covered under warranty, they will only replace the defective part and not the whole vehicle.  In the present case, the main axil of the vehicle itself was cut and the Mechanic also advised not to ride the vehicle further since there is no safety on the vehicle.  In the event of purchase of a vehicle, every purchaser will ensure the safety riding without any defect on the vehicle.    In this case, the complainant alleged that the main axil of the vehicle was cut.  The Mechanic also stated that it is not safe to ride the vehicle further. 

          10. Moreover, though the opposite parties filed reply versions agitating the claims made by the complainant, they have failed to establish their case by letting in oral or documentary evidence.  In order to prove the manufacturing defect, the  complainant has produced Ex.C3 a certificate from a Mechanic.  To refute the same, the opposite parties have not examined any witness including the person who issued the certificate Ex.C3.  Further the opposite Parties have not taken any steps to prove that they have used superior quality materials for making the vehicle else they have sent the vehicle for inspection with an expert that the alleged main axil cut was caused by owner's use.   Since the defect is express one and it would affect the safety of the rider, this Forum is inclined to give direction to the opposite parties to replace the part i.e. main Axil  with a new one of same model  to the complainant with extended warranty.   Further, in view of the deficiency in service attributed by the opposite parties,  the injuries and sufferings of the complainant should be compensated by the opposite parties jointly and severally.  Hence the complainant is entitled for the relief and the opposite parties are liable for the same.

11.     Point No.3:

          In view of the decision taken in point Nos. 2 and 3,  this complaint is allowed.  The opposite parties are jointly and severally directed:

1. To replace the part i.e. main Axil  with a new one of same model  to the complainant with extended warranty within two months from the date of receipt of this order.

2. To pay a sum of Rs.10,000/- as compensation to the complainant

3. To pay a sum of Rs.5000/- as cost of the proceedings. 

Dated this the 22^nd  day of April 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           21.06.2012           J. Gandhi

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: NIL

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER