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.Ps) alleging the deficiency in service in selling Maruthi Ertiga ZDQ of 2017 model instead of 2018 model and direct OPs to deliver a new Maruthi Ertiga vehicle of 2018 model and in the alternate to refund the amount received by it along with interest at 24% p.a., along with compensation as damages of Rs.1,00,000/- for causing mental agony and Rs.5,000/- per day as loss of earning from the date of purchase of vehicle till disposal of the complaint and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

He purchased MARUTHI ERTIGA ZDQ+SMART HYBRID LUXURY TAXI, bearing Chassis No.MA3FLEB1800493525, Engine No.D13A-5513856, DIESEL 4 CYLINDERS, Manufacture Sept 2017, bearing Reg. No.TR No.KA 04/TQ/964/2018-19 on 17.10.2018 from OP by paying Rs.11,69,663/-.  The sales representative of OP assured that it will deliver the recently manufactured car.  On 16.07.2018, OP delivered a damaged defective vehicle manufactured in the month of September 2017. After taking the delivery of the vehicle, he observed the defects and damages in the said vehicle and an old vehicle was given to him.  Immediately he brought the same to the notice of OP and requested to change the vehicle and give him a newly manufactured vehicle, whereas, OPs did not responded positively.  OPs agreed that it was a vehicle manufactured during September 2017 and agreed to make all the repairs in respect of the defects found.

3.      It is contended that, as per the terms and conditions of the sale, OPs are bound to provide him a newly manufactured vehicle, whereas, OP violated the terms and conditions taking undue advantage of the innocence and soberness of the complainant.  He has produced the photographs depicting the damages and defects of the vehicle and also requested OPs by sending emails to replace the vehicle with a new one.  The act of OPs in not replacing the vehicle and selling an old vehicle amounts to deceit and deficiency in service. 

4.      After getting the delivery of the vehicle, he had spent Rs.50,000/- for its interior decoration.  The same was informed to OPs. In fact OPs requested him to come to their showroom and get the defects repaired, for which he refused.  He purchased a new vehicle with yellow board with an intention to run the said vehicle as a taxi to earn his livelihood.  The vehicle was not put to use from the date of purchase and has been kept idle, hoping that OPs would replace with a new one, thereby he was put under loss of Rs.5,000/- per day.  Inspite of issuing a legal notice, demanding OPs to replace with a new vehicle, they have neither complied the same nor replied.  The cause of action for the complaint arose the day on which he received delivery of vehicle i.e., on 17.10.2018 and on 01.11.2018 when he lodged the complaint with OPs and hence the complaint.

6.      Upon the service of notice, OP1, 2 and 3 appeared before the Commission. OP2 and 3 have only filed their versions.

7.      In the version filed it is contended that complainant is not a consumer.  He purchased the vehicle for commercial purpose for carrying passengers and hence it is for business purpose and hence as per the provisions of Consumer Act, the complaint is not maintainable. OP2 and 3 are not at all parties to the transaction that had taken place between the complainant and OP1 and there is no privity of contract.  Hence complaint against OP2 and 3 are misconceived, groundless, unsustainable, and bad for misjoinder of parties and liable to be dismissed.  OP1 is an independent entity and has entered into agreement to obtain the dealership with OP2 and 3 on principal to principal basis and it is not a principal and agent and the relationship between manufacturer and its distributor is on principal to principal and the manufacturer is not liable for the acts of the distributor.  There is no cause of action for the complainant to file this complaint against these OPs.  The obligation of OPs as manufacturer to the complaint is under the terms and conditions of the warranty policy restricted to service to the vehicle.  Complainant with ulterior motive has filed this complaint to cause wrongful loss to the OPs and to have wrongful gain to himself.  OP2 and 3 have no involvement in the sale transaction between the complainant and OPs.

8.      Further it is contended that, complainant himself filed the Certificate of Registration, wherein it is specifically mentioned as September 2017 as the year of manufacture.  He himself has signed the delivery challan accepting the said vehicle.  Since the complainant undertook interior decoration of the vehicle, any damage or defect might have occurred at the time of carrying out the interior decoration.  The claim of the complainant for replacement of vehicle is only to harass them.  The warrantee issued by the manufacturer is specific within the terms and conditions and limitations set out in owner’s manual and service booklet.  The replacement of the vehicle or refund of the price of the vehicle is beyond the terms and conditions of the warrantee.  The terms of warrantee constitutes an agreement between the parties. Denying all the allegations made against it, in the complaint, it prayed the commission to dismiss the same.

9.      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 and manufacturing defect in the vehicle sold to him by the Opposite Parties?

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

10.   Our answers to the above points are:-

POINT NO.1 & 2:             In the Negative

                                        For the following.

REASONS

11.   POINT No.1 & 2:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant purchased MARUTHI ERTIGA ZDQ+SMART HYBRID LUXURY TAXI, bearing Chassis No.MA3FLEB1800493525, Engine No.D13A-5513856, DIESEL 4 CYLINDERS, Manufactured in September 2017, bearing Reg. No.TR No.KA 04/TQ/964/2018-19 from OP1 manufactured by OP2 and 3 and took the delivery.  At the time of taking delivery, complainant has not raised any objection.  The payment of the entire amount towards the value of the car, the sale of the same to the complainant by OP1 is not at all in dispute.

        12.   The only contention of the complainant is that, during September 2018 the OP sold Ertiga vehicle manufactured in the year 2017 and thereby committed deceitful business tactics on him.  OPs have produced the original order booking/commitment check list, wherein it is clearly mentioned that the order is for 2017 model Ertiga ZDI 2017, silver colour, this was booked on 26.07.2018, the same is signed by the complainant.

        13.   When this is taken into consideration, and also the letter written by the complainant, clearly reveals that he has booked a new Ertiga 2017 model and giving Rs.1,00,000/- as down payment.  The invoices produced also shows that, the same was sold to the complainant at the reduced price, then what was prevailing at the time of delivery of the vehicle in respect of a model manufactured in the year 2018.

        14.   When this is taken into consideration, and also the Temporary Certificate of Registration issued by the Deputy Commissioner of Transport, Bangalore North, in respect of the Ertiga vehicle purchased by the complainant and sold by OP1, it is clearly mentioned that the month and year of manufacturing as 09/2017.  Further Form No.21 the Sale Certificate issued by OP1 also clearly reveals the month and year of manufacture as September 2017, the delivery challen also mentions that model Ertiga ZDi silver colour, and further the Insurance Certificate also clearly shows that they have insured the vehicle manufactured in the year 2017.

        15.   When all these documents are taken into consideration, we cannot hold that the complainant was kept in dark regarding the year of manufacture in respect of the Ertiga car sold in favour of the complainant and decieting the complainant by saying that the car sold to him is manufactured in the year 2018.  Hence we answer Point No.1 in the Negative.

16.   If at all there was any manufacturing defect in the vehicle, it ought to have been brought to notice of the OPs at the first instance.  The same has not been done and proper proof is also not produced before us.  Further complainant has produced some photos to show that there were some fade/spot in the colour over the body of the car.  Some “white patches” like appearing on the body of the car. The car has run for only 223 kms., as per the photo of the speedo meter produced.  He should have run the vehicle during the pendency of this case also as nothing prevented him from running the vehicle to earn his livelihood.  The other photographs produced marked as Ex.P12 and 13 probably do not belong to this car.  It is also not made clear and also not explained as to what purpose the said photographs Ex.P14 to 21 are produced.  It is quite but natural that the mudguard of the vehicle usually became dusty, when the vehicle was put to use or made to run on a muddy surface.  The same cannot be held as manufacturing defect.  In fact, there is no material placed by the complainant to show that there is manufacturing defect in the vehicle which attracts the attention of this Commission to order for replacement of the same.

17.   The nature of allegations made i.e., in respect of selling the vehicle of an earlier years manufacturing and the stains over the body of the car do not render the vehicle to stop as it is, without putting the vehicle to use.  The defects alleged even if it is true, did not warrant the complainant to stop the vehicle.  He could have very well used the vehicle to earn his livelihood as he has purchased the same to run it as a taxi.  In view of this, for his own fault, he cannot make other persons liable.  Hence complainant is not entitled for any of the reliefs prayed. If at all there is any stain over the body of the car, OP1 is bound to get it rectified as it is still under the warrantee period. In view of this we answer Point No.2 also in the Negative and pass the following;

ORDER

1. Complaint is Dismissed. No cost.
2. However OP1 is directed to rectify the stains that are appearing over the body of the car within 30 days from the date of receipt of this order.
3. 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 13^th day of November 2020)

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: Copy of the Invoice for Ertiga ZDI,

Ex P2: Copy of the Temporary Certificate of Registration

Ex. P3: Copy of the Sale Certificate

Ex P4: Copy of the Delivery

Ex P5: Copy of Tax Invoice cum certificate of extended warranty registration

Ex P6: Copy of Insurance Certificate

Ex P7: Vehicle damaged photographs (21 Nos.)

Ex P8: Copy of legal notice

Ex P9: Postal receipts and acknowledgements

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

RW-1: Sri.Mahesh Naik & Yajurvendra

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Authorization letter.

Ex R2: Copy of the authorization letter issued by OP1 in my favour to represent before this forum

Ex R3: Copy of the tax invoice

Ex R4: Copy of the terms and conditions of the warranty policy.

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

RW-2: Sri.Srinivasan

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of Authorization letter issued out company

Ex R2: Copy of dealership agreement

Ex R3: Copy of Temporary Registration Certificate

Ex R4: Copy of the sale certificate issued by Varun Motors

Ex R5: Copy of warranty policy

MEMBER                                PRESIDENT