| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Tuesday the 17th day of October 2023 CC.277/2013 Complainant N. Adarsh. Arathi, Vengeri Post, Kozhikode -673010 Opposite Party - TVS Motor Company Ltd,
PO. Box No.4,Haritha, Hosur, Tamil Nadu – 635109. - TVS Motors Company Ltd,
Ambady Towers, Cheranallur road, Second floor, Door No. 27/631A6, Edapally (PO), Cochin -682024. (Op1 and Op2 - By Advocate -Sri. B.M. Shamsuddin) - Koyas TVS,
Meridian Mansion, Near Malayala Manorama, Nadakkavu, Kozhikode -673011 (Op3 - By Advocate - Sri. Naseer Chaliyam) ORDER By Sri. P.C. PAULACHEN – PRESIDENT. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainant, in brief, is as follows:
The complainant purchased a TVS Motor Cycle (TVS Star City) from the third opposite party. The first opposite party is the manufacturer of the vehicle. At the time of delivery of the vehicle, the complainant had noticed some damages and traces of rust on the vehicle parts like silencer, engine cylinder head, front shock absorber etc. and it was informed to the sales manager and got it recorded in the service book. It was assured that the said parts would be replaced at the time of service. But that was not done. - On 19/11/2012 the complainant entrusted the bike in the service centre for second free service and replacement of some parts. But the vehicle was delivered back after service only on 19/01/2013.
- As per the brochure of the company, the said motor bike will give a mileage of 83.9 kmpl. But there is drop in the mileage for the vehicle.
- The front and rear mudguards of the vehicle are not in the centre and they are shifted to sides. The front and rear wheels are not in a line. The rear wheel is slightly turned so that the driving direction and vehicle moving direction are different. The service engineer failed to rectify the above defect.
- The ladies foot rest is not performing its function. While keeping the foot on the foot rest, it moves towards the wheel and hits in the swing arm when the vehicle passes through a hump or a pit.
- Though he had issued a notice to the opposite parties regarding the above difficulties and rust, there was no response. Hence the complaint for replacement of the vehicle with a new one and to pay compensation of Rs. 20,000/-
- The opposite parties resisted the complaint by filing written version. In the written version filed by the opposite parties 1 and 2 jointly, they have denied the allegation that the vehicle in question suffered from any such defects as alleged much less manufacturing defect. The vehicle of the complainant had met with an accident and brought to the 3rd opposite party for carrying out accidental repairs. After the accidental repairs, it was delivered back to the complainant to his satisfaction. No such complaints as alleged were reported to the opposite parties. The vehicle was delivered to the complainant in good condition after pre delivery inspection. Owner’s manual was also provided to the complainant, which contains the warranty conditions. The allegation that at the time of delivery there was traces of rust on vehicle parts and that the sales manager had promised to replace the parts is false.
- In the month of November 2012, the vehicle was brought to the third opposite party for carrying out accidental repairs. As there was insurance claim, it was informed to the complainant that the delivery of the vehicle could be done only after the insurance formalities were over. The vehicle was ready for delivery in the second week of December 2012 and the same was informed to the complainant. But he was not ready to take delivery and demanded replacement of the vehicle citing delay in delivery of the vehicle. In fact, the delay had occurred only due to the intervention of the insurance company and the opposite parties are in no way liable for the same. After explaining those facts and after several requests, the complainant finally took delivery of the vehicle. The complainant without properly verifying the owner’s manual has falsely alleged that the service period expires after 12 months. In fact, the warranty period is 24 months.
- Mileage depends on several factors like road condition, purity of fuel, engine oil, lubricant, air pressure, atmospheric pressure etc. It may vary due to various conditions. The allegations regarding the defects in the front and rear mudguard, wheels and foot rest etc are denied as the same are false. Such complaints were noticed in the vehicle only at the time of carrying out accidental repairs and thereafter no such complaints were reported. No notice was received from the complainant. There is no deficiency of service on the part of the opposite parties. With the above contentions, the opposite parties one and two pray for dismissal of the complaint.
- The third opposite party, in their written version, has admitted that the complainant had purchased the motor cycle in question from them. But all other allegations are denied by them. When the complainant noticed rust on the silencer, the third opposite party had informed him that they were ready to replace the same and arranged parts, but the complainant did not approach them even though he was reminded. Even at this stage, they are ready to replace the parts having rust. The delay in the delivery of the vehicle after accidental repair happened due to the formalities of the insurance company. There is no manufacturing defect in the vehicle. The allegation with regard to the foot rest is not true. No notice was received by them from the complainant. There was no deficiency of service on their part. The complainant is not entitled to get the reliefs as prayed for. It is, therefore, prayed to dismiss the complaint with costs.
- The points that arise for determination in this complaint are:
- Whether there is any inherent manufacturing defect in the vehicle?
- Whether there was any deficiency of service on the part of the opposite parties, as alleged?
- Reliefs and costs.
- Evidence consists of the oral evidence of PW1 and Exts A1 to A8 on the side of the complainant. RW1 was examined on the side of the opposite parties. The report of the expert was marked as Ext C1.
- Heard both sides. Brief argument note was filed by the first and second opposite parties. Additional note of argument was also filed.
- Points 1 and 2: These points can be considered together for the sake of convenience. The complainant has approached this Commission with a grievance that the TVS Star City motor bike purchased by him is having manufacturing defect and he seeks replacement of the vehicle with a new one along with compensation of Rs. 20,000/- from the opposite parties.
- In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the brochure, Ext A2 is the copy of the front page of the service book, Ext A3 series are the copies of the free service coupon, Ext A4 is the copy of the invoice dated 21/07/2012, Ext A5 is the copy of the lawyer notice dated 7/08/2012, Ext A6 is the copy of the driving licence, Ext A7 is the copy of the bank pass book and Ext A8 is the copy of the service bill.
- The case advanced by the first and second opposite parties is one of total denial. However, the third opposite party has admitted that there was rust on the silencer of the vehicle and according to them they were ready to replace such parts having rust and even now they are ready to do so. The service manager of the third opposite party at the relevant time was examined as RW1 and he has filed proof affidavit and deposed reiterating the contentions in the version.
- The complainant has argued that at the time of delivery of the vehicle itself, there were traces of rust on some parts and the sales manager of the opposite parties was convinced about the same and had agreed to replace the rusted parts at the time of service, but nothing was done thereafter. It was pointed out that the vehicle suffers from manufacturing defect and this is evident from Ext C1 report.
- Per contra, the learned counsel for the opposite parties argued that the complainant has approached this Commission with unclean hands suppressing the material fact that the vehicle had met with a major accident causing extensive damage. It was argued that what was supplied to the complainant was a defect free vehicle after pre delivery check. It was also argued that there is no inherent manufacturing defect in the vehicle and Ext C1 can be of no help to the complainant to prove his allegations since the inspection by the expert was after nearly 6 years of the purchase of the vehicle. Further it was submitted that the defects, if any, to the vehicle was caused due to the accidental damage.
- Admittedly, the complainant purchased the TVS Star City Motor bike in question on 16/07/2012. The first opposite party is the manufacturer and third opposite party is the authorised dealer. The warranty period is 24 months from the date of purchase or 30,000 kms of run for the vehicle, whichever is earlier.
- One of the grievances projected by the complainant is that there was delay to deliver back the vehicle after the second service. To be specific, the entrustment of the vehicle in the service centre for the second free service was on 19/11/2012 whereas the vehicle was delivered back only on 19/01/2013 exactly after 2 months time. But at the time of evidence, PW1 has admitted that the second service was an accidental service. It is admitted that the vehicle had met with an accident soon after the purchase and the damages were caused to the vehicle in the accident. The complainant had also sustained some injuries and was hospitalised. He had preferred insurance claim for the damage caused to the vehicle in the accident and received the claim amount also. The above facts are clearly admitted by PW1 while in the box. The factum of accident and the consequential damage to the vehicle is seen deliberately supressed by the complainant. Supressing the accident and the damages, the complainant has pleaded in the complaint that he entrusted the bike in the service centre for second free service and replacement of some body parts. He has feigned ignorance about the accident and the consequential damages and has blamed the opposite parties for the delay in delivering back the vehicle stating that it was only second free service. The definite case of the opposite parties is that the complainant had lodged insurance claim for the damages and some delay occurred in delivering back the vehicle due to the formalities of the insurance company in settling the claim. The delay occurred only due to the accidental repairs and the intervention of the insurance company and that being so, the opposite parties cannot be held liable for the delay in delivering back the vehicle. The complainant has concealed the relevant facts regarding the accident and has approached this Commission with unclean hands.
- The main grievance of the complainant is that the vehicle is having manufacturing defect. The defects pointed out by the complainant are that the front and rear mudguards are not in centre and wheel not in line, the ladies foot rest moves towards the wheel and hits on the swing arm when the vehicle passes through hump or pit and that there was mileage drop. In this context, the definite case of the opposite parties 1and 2 is that such complaints were noticed in the vehicle only at the time of carrying out accidental repairs and there after no such complaints were reported. In other words, the contention of the 1st and 2nd opposite parties is that such complaints were due to the accident occurred to the vehicle. In this context, it is worthwhile to have a glance at Ext C1 report filed by the Assistant Motor Vehicles Inspector, Kozhikode. In Ext C1, it is stated that the allegation of the complainant regarding the foot rest, alignment of the wheel and mileage drop are genuine. Regarding mileage, it is stated that the mileage is only 65 kmpl whereas as per Ext A1, the km offered is 83.9.
- Ext C1 is strongly objected by the first and second opposite parties, who have filed detailed objection. It may be noted that the learned expert inspected the vehicle only on 9/04/2018 after nearly 6 years of purchase and use of the vehicle by the complainant. Ext C1 does not reflect the condition of the vehicle as on the date of the complaint. The learned expert examined the vehicle on his ocular examination without resorting to any scientific or mechanical test or examination. Moreover, the vehicle had met with an accident and the learned expert examined the vehicle without prior knowledge about the admitted accident. The possibility of above defects being caused on account of the accident cannot be ruled out. Regarding mileage, it depends on various factors. A motor cycle purchased 6 years ago and that too sustained extensive damages in an accident cannot be expected to get the mileage offered by the company. Ext C1 is silent about any inherent manufacturing defect to the vehicle. No other expert/technical report is made available to show that the vehicle suffers from any inherent manufacturing defect. To establish the claim for replacement of the vehicle by a new one, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/ mechanical engineer that the vehicle suffered from inherent manufacturing defect. Ext C1 in this case is not helpful to the complainant to establish that the vehicle suffers from any inherent manufacturing defect. The vehicle is still in the possession of the complainant. It is admitted by PW1 at the time of his cross examination on 19/12/2016 that the vehicle had run 12000 kilometres. This would show that the complainant was in extensive use of the vehicle. This is also indicative of the fact that there is no inherent manufacturing defect in the bike or else he would not have been able to ride it all these years and that too to the extent of 12000 kilometres. The complainant could not show that the bike has any inherent manufacturing defect. So the prayer for replacement of the vehicle with a new one cannot be allowed.
- But the allegation of the complainant with regard to traces of rust on the silencer and engine cylinder head is proved to be genuine. The case of the complainant is that at the time of delivery of the vehicle itself, he had noticed some damages and traces of rust on the above parts and when he informed this to the sales manager it was recorded in the service book and assured to replace the same at the time of service, but they failed to replace the parts. The first and second opposite parties have denied the allegation of traces of rust on the vehicle and according to them the vehicle was delivered to the complainant in pristine condition. They have also denied that the sales manager had promised to replace the defective parts at the time of the service. But contrary to the above, the third opposite party in paragraph 4 of the version filed by them has rather admitted the allegation of the complainant in this regard. The averment is that the complainant noticed rust on the silencer and they had informed him to replace the same and arranged parts, but the complainant did not approach them even though they had reminded him. Further the third opposite party has expressed their willingness to replace the parts having rust. Thus, the opposite parties have contradictory version in this regard and they are at variance on this point. It may be noted that there is an endorsement made by the sales personnel in Ext A2 which reads as follows; “The cylinder kit of this star city vehicle is rusted at the time of delivery time and is to be painted in the service time, the silencer of this vehicle is also to be changed at the time of service. Replace silencer”. This endorsement is not seriously disputed or challenged by the opposite parties. On the other hand, RW1 has admitted in the cross examination that the endorsement on Ext A2 regarding rust was made by the sales wing. Thus the admission of the third opposite party and RW1 coupled with Ext A2 would establish that the grievance of the complainant with regard to the rust on the parts is genuine. Certainly, it cannot be considered as an inherent manufacturing defect in the vehicle. But there is nothing to indicate that the opposite parties have taken any steps to address the concerns of the complainant in this regard. There is nothing to indicate that the opposite parties have acted in pursuance to the endorsement made in Ext A2. The third opposite party has contented in the version that even though they were ready to replace the same and arranged parts, the complainant failed to turn up despite their reminder. There is absolutely nothing to show that the third opposite party had ever asked the complainant so or taken any steps to replace the rusted parts. There was gross deficiency on the part of the opposite parties in this regard. Delivering a vehicle to the customer with rust in some parts and the further neglect to replace the parts amounts to gross deficiency of service on the part of the opposite parties. The complainant deserves to be compensated adequately in this regard. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 15,000/- will be reasonable compensation in this regard. The opposite parties are jointly and severally liable.
- Point No. 3: In the light of the finding on the above points, the complaint is disposed of as follows: a) CC 277/2013 is allowed in part. b)The opposite parties are hereby directed to pay a sum of Rs. 15,000/- (Rupees fifteen thousand only) as compensation to the complainant. c)The payment shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 15,000/- shall carry an interest of 6% per annum from the date of this order till actual payment. d)No order as to costs.
Pronounced in open Commission on this, the 17th day of October, 2023. Date of Filing: 29.06.2013 Sd/ Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext A1 - Copy of the brochure. Ext A2 - Copy of the front page of the service book. Ext A3 series - Copies of the free service coupon. Ext A4 - Copy of the invoice dated 21/07/2012. Ext A5 - Copy of the lawyer notice dated 7/08/2012. Ext A6 - Copy of the driving licence. Ext A7 - Copy of the bank pass book. Ext A8 - Copy of the service bill. Exhibits for the Opposite Parties : Nil. Commission Exhibits Ext.C1- Commission report Witnesses for the Complainant PW1 - N. Adarsh (Complainant) Witnesses for the opposite parties RW1 – Yesudas Joseph Sd/ Sd/- Sd/- PRESIDENT MEMBER MEMBER True Copy, Sd/- Assistant Registrar. | |
