ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.P) alleging the deficiency in service in selling the car having manufacturing defect and for refund of the cost of the vehicle along with interest at 18% p.a., on the said amount and the EMIs paid by him for the loan amount obtained by him from the financial institution to purchase the said vehicle along with cost and other relief as the Commission deems fit. 

2.      The brief facts of the complaint are that;

The complainant purchased TATA Bolt XE 75PX car from OP1 by paying Rs.6,50,000/- in all On 12.08.2016 and has been running the same. The same was registered in his name with registration No.KA-01 AG 0013.  He obtained a loan of Rs.4,24,000/- from TATA motor finance Ltd., agreeing to pay the same in 26 monthly installment of Rs.13,763/-.  He is a taxi driver having 10 to 15 years of experience in driving the car. He has been driving the car very carefully and leaving the vehicle for service with OP2 and 3. Even after the service, the said vehicle was giving problem particularly in respect of clutch plate.  The same was rectified for eight times.  Inspite of it, OP2 and 3 changed the same, it is giving the problem.  The service provider instructed the complainant to keep on changing the clutch plate when the vehicle was driven for 5000 kms.  The vehicle was left to OP2 and 3 for repair and he has paid the repairing charges. He is also paying the EMIs to the financier who has financed for the vehicle.  The vehicle sold to him is having manufacturing defect and is not in a good condition and a defective vehicle was sold to him.  The technicians of OP2 and 3 failed to provide proper service in respect of the said vehicle. He issued a legal notice on 13.10.2018 calling upon the OP to refund the amount of the cost of the car along with interest and the EMIs paid by him and also damages.  Even after receiving the said notice, the same has not been either replied or complied. Hence there is deficiency in service as, a defective vehicle was sold to him and proper repair was not done, and hence this complaint.

3.      Upon the service of notice, OPs appeared before the Commission and filed their version.  OP2 remained absent inspite of publishing the notice in the local newspaper.

4.      In the version filed by OP1 it is contended that it has excellent dealership and authorized service centre who take care of the vehicle after service.  It has more than 750 workshop throughout the country and providing services 24/7.  The complaint filed is baseless, vexatious, misconceived and liable to be dismissed.  No proof of manufacturing defect of the car by filing the expert report is produced.  Complainant has run the vehicle for about 62,000 kms., in a span of 30 months, which itself speaks extensive use of the vehicle and further the said vehicle was used for commercial purpose.  No document is produced to show that he is using the said vehicle to earn his livelihood.  When the manufacturing defect in the vehicle is alleged, it cannot be decided on records unless the same is subjected to test in the appropriate laboratory.  In the absence of expert opinion regarding the manufacturing defect of the vehicle, an order to replace with a new one cannot be passed. No relief can be given to the complainant u/s 14 of the Consumer Protection Act. The forum has no jurisdiction to entertain the complaint as the allegation requires a trial before the civil court. Denying all the allegations made in each and every para of the complaint, prayed the Commission to dismiss the complaint.

5.      In the version filed by OP3, it is contended that the complaint filed is liable to be dismissed as there is no material fact and the complainant has suppressed the material facts and it is vague, baseless with malafide intention.  In a span of 30 months the vehicle has covered 66000 kms., and the same is used by the complainant for commercial activities.  There is no deficiency in service on its part. It has provided three mandatory services, five visits for campaigns, two accident repairs and three running repairs.  The complainant’s vehicle was involved in accident twice and the same was left with them for service and the same was repaired to the satisfaction of the complainant.  The life of the average clutch can be 35 to 55000 kms. There was some clutch related issue with respect to the complainant’s vehicle on two or three occasions and this is purely on account of mishandling and inappropriate driving skills of its drivers. The same was brought to the notice of the complainant and the same was replaced with free of cost as it was under warrantee and as the vehicle had done 43000 kms.  Thereafter, the vehicle was again brought to it when it had done 53000 kms., with clutch related issue and the same was removed, checked and replaced. The clutch problem was due to bad driving and the same was shown to the complainant at the time of replacement.  Since there was no warrantee, the charges were collected. Complainant agreed to pay for the same as he was convinced by seeing the uneven ware and tare in the clutch.  The allegation of he being instructed to keep the clutch changing is false.  

6.      Complainant has not disclosed the real fact that it was involved in the accident.  When it had covered 53319 kms., met with an accident during may 2018 and the same was repaired with “True Sai Works”.  Tinkering and welding works were also done. The vehicle had covered 32000 kms., per year.  He was also instructed to engage good driver to maintain the vehicle in good condition by following guidelines.  The allegation of manufacturing defect has been denied by this OP and that it has filed the entire history of the vehicle for forum to arrive for a just and logical conclusion in respect of the stage of the vehicle, regarding status and performance. The vehicle that covers more than 100 kms., per day involve in regular ware and tare and requires periodic servicing and maintenance. Bad driving, bad roads, negligence in maintaining the engine oil, cool-ant effects the performance of the vehicle for which OP cannot be held responsible.  

7.      Though the complainant had brought the vehicle on many occasions consistently complained in respect of the clutch related problems, it was found non existence on inspection and trial runs.  It is a claver strategy of the complainant or a misplaced apprehension of the complainant in respect of the clutch.  He continued to make illegal and misleading allegations, with a hope that the car would be replaced or the cost of the car would be refunded.  The complaint in respect of the schedule services and clutch problems are the running repairs, which requires constant servicing. When the vehicle was left with it for service, the same was attended promptly to the satisfaction of the complainant.  While taking the vehicle back, the complainant had made a test drive through its driver and taken the vehicle after fully satisfied. There is no cause of action for the complainant to file this complaint.  Neither there is any manufacturing defect nor any deficiency in service in respect of its repair. Denying all the allegations made against it, prayed the commission to dismiss the complaint against it.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1 & 2 :               In the Negative

                                                For the following.

REASONS

10.   POINT No.1 AND 2:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant purchased the vehicle manufactured OP1 and left with OP2 and 3 several times for service.  The job card produced by the complainant and tax invoices reveals that on a couple of occasion the vehicle was left with OP2 and 3 for services, wherein, it related to the clutch plate. It also includes several other problems for service.

        11.   Complainant has not produced any expert opinion or report regarding the manufacturing defect in the vehicle, when such being the case, his prayer for replacement of the vehicle with a new one or ordering for refund of the cost of the vehicle do not arise at all.

        12.   It is his bounden duty to prove that the service rendered by OP2 and 3 are not satisfactory and there is deficiency in service on their part. On 12.11.2020 both the parties before the forum submits that they have held a talk and there is likelihood of settlement. On 23.11.2020 one Krishna Kumar GPA holder of OP2 undertook to get the vehicle for repair in all respect to the satisfaction of the complainant and make it road worthy.  This forum ordered the complainant to leave the vehicle with the said person for repair. On 19.12.2020 both parties appeared before the forum and filed the documents and also the complainant was present and submitted that the said vehicle was repaired in his presence and he is satisfied with the same and the vehicle is running without any trouble.

        13.   Further the test report and the service history of the vehicle is also produced by the OP which clearly shows that for a couple of times, the said vehicle was left with OP2 and 3 for clutch problem and further several other times relating to some other problems.  It is also mentioned in the service history that the vehicle met with accident on two occasions and left for repair with the service station. It is to be seen here as per the job history that it has covered 1,00,593 kms., when such being the case, it is to be considered here that the complainant has run the said vehicle to the maximum extent and naturally the vehicle will have more ware and tare and probably due to that there was clutch problem a couple of times which was solved by OP2 and 3 later.

        14.   In view of this, and in view of the non filing of any of the expert report regarding manufacturing defect and in view of suppressing the material fact, regarding the vehicle meeting with accident twice, and further that the vehicle was repaired to the satisfaction and the same was running without any trouble, we are of the opinion that there is no deficiency in service on the part of OPs either in manufacture of the vehicle or in providing service and hence answer point No.1 in the negative and also the complainant is not entitled for any of the relief claimed. Hence we pass the following;

ORDER

1. Complaint is Dismissed.  No. cost.
2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 23^RD DAY OF FEBRUARY 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Original Tax Invoice for having purchased TATA Bolt car

Ex P2: Receipts (3 in Nos.)

Ex. P3: Debit note

Ex P4: Insurance Documents

Ex P5: Receipts for having paid service charges (5 in Nos.)

Es P6: Tax Invoice (5 in Nos.)

Ex P7: Breakdown service report 8 in Nos.

Ex P8: Vehicle delivery acknowledgement

Ex P9: Email correspondences

Ex P10: Legal notice

Ex P11: Postal acknowledgement card

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Arjun Kumar, Senior Manager of OP1

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                        PRESIDENT