TVS Motor

adv.sumitadv.sumit Senior Member
edited January 2013 in Automobile
COMPLAINANT:-
Sri Showkath Ali
S/o Abdul Zaleel sab,
43 Years, Occu: Workshop work,
Vinoba nagar, 4th Main,
4th Cross, Davanagere.

(In Person)

V/s

OPPONENTS:

1. The Manager,
TVS Motor Company,
Near I.C.I.C.I. Bank,
Ureka Complex, Hubli.
2. Sunil
Anu Clearings,
Basaveshwar Complex,
8th Main, P.J. Extension,
Davanagere.
(Exparte)



: JUDGMENT :



The complainant has filed this complaint against the opponents 1 and 2 U/s 12 of the Consumer Protection Act to direct the opponents 1 and 2 to return the RC book in respect of the vehicle bearing registration No.KA-17-U-8515 TVS Starcity Motorbike, to the complainant and for issuance of clearance certificate and award compensation for mental agony and deficiency of service.



2. The facts of the case in brief are as follows :-

On 25-10-2005 the complainant entered into agreement with TVS Motor company in connection with purchasing of TVS starcity motorbike. On the date of purchase showroom value of the said motorcyle was Rs.38,999/-. The complainant purchased the said vehicle by making down payment of Rs.9,000/-. For the balance amount, the complainant raised the loan from the TVS Company. It was agreed to pay the balance amount of loan on monthly installment of Rs.1357/- totally in 36 installments.


The RC book of the said vehicle is with the TVS Company. The complainant has paid a sum of Rs.29,854/- by issuing totally 22 cheques of Rs.1,357/- each as detailed in para-1 of the complaint. Further the complainant has paid totally a sum of Rs.21,356/- through cheque and by cash and made down payment of Rs.9,000/-. The complainant has totally paid a sum of Rs.60,210/-. The total amount payable by the complainant to the said TVS Motor company comes to Rs.48,852/- i.e., principle loan amount and interest. The complainant has made excess payment of Rs.11,358/- to the opponents i.e., TVS Motor Company.


Inspite of excess payment made by the complainant still the opponents have failed to return the RC book to the complainant. The opponents have caused unnecessary mental agony and trouble to the complainant. Even after repeated demands, the opponents have failed to return the RC book of the said vehicle and for issuance of clearance certificate. Atlast the complainant has issued notice to the opponents on 19-01-09 calling upon them for issue of clearance certificate and for return of the said RC book. The opponents neither replied the said notice nor complied with the notice demands. Under the above said facts of the case, the complainant has filed this complaint against the opponents for the above said reliefs.



3. Inspite of service of statutory notices both the opponents remained absent and were placed exparte. The complainant has filed his affidavit evidence and produced several documents at Ex.P.1 to Ex.P.6 in support of his case.



4. We have heard the arguments advanced by the complainant.



5. Now, the points that arise for consideration of this Forum are as follows:-



i). Whether there is any deficiency in service on the part

of the opponents?

ii) If so, whether the complainant is entitled to the reliefs as sought?

iii) What Order?

6. Our findings on the above points are as follows:-

i) Point No.1: Affirmative

ii) Point No.2: Entitled to the extent stated below.

iii) Point No.3: See, as per order below:

for the following:-




REASONS
Point No. 1:-



7. From the averments and the allegations made in the complaint and from the affidavit evidence given by PW-1 it is found that, the complainant borrowed a loan from TVS Motr Company in order to purchase TVS Star City Motorbike. The complainant on 25-10-2005 entered in to agreement with TVS Motor company and purchased the TVS Star City Motorcycle. According to the complainant that, on the date of purchase the showroom value of the said vehicle was Rs.38,999/-. The complainant made down payment of Rs.9,000/- by depositing the cash and for the remaining amount TVS Company sanctioned the loan, it was agreed between the complainant and TVS company to repay the loan in monthly installments of Rs.1,357/-, totally in 36 installments. Accordingly, the complainant paid the said amount without any default on different dates as per terms and conditions of the agreement in 22 cheques i.e., totally a sum of Rs.29,854/-. According to the complainant that, he paid the balance amount to the opponents by cash and by issuing cheques i.e., totally a sum of Rs.21,356/-. The complainant has totally paid a sum of Rs.29,854/- + 21,356 + down payment of Rs.9,000/-, totally a sum of Rs.60,210/-.


The total amount payable by the complainant to the opponents to the said loan comes to Rs.48,852/- including principle + interest, but the complainant has made excess payment of Rs.11,358/-. It is clear from the affidavit evidence filed by the complainant that, inspite of the above said excess payment made by the complainant the opponents are unnecessarily harassing the complainant and causing unnecessary mental agony to the complainant without returning the RC book and in this way the opponents caused mental agony to the complainant without returning the RC book of the said vehicle and also without issuing clearance certificate. The complainant has got issued notice to the opponents on 19-01-09 calling upon to them to return the RC book within 7 days and also for issuance of clearance certificate, but the opponents neither replied the said notice nor complied with the notice demands.

8. The complainant has produced Ex.P.1 two pass books of Millath Co-Operative Bank Ltd. It is clear from the entries made in the pass books that the complainant has totally paid a sum of Rs.21,356/- by issuing cheque. Further the complainant has produced Ex.P.2, eleven receipts issued by TVS finance services ltd. From these receipts issued by the said TVS Finance and Services Ltd that the complainant has totally paid a sum of Rs.21,356/- by cash and by issuing cheque. From these documents at Ex.P.1 & Ex.P.2, the complainant has totally paid a sum of Rs.60,210/-. According to the complainant that the total amount of loan payable by the complainant to the opponents comes to Rs.48,856/- including principle and interest.


Further it is clear from the above said facts and circumstances that the complainant has made excess payment of Rs.11,356/-. Ex.P.3 is the Notice issued by the complainant to the opponents dtd:19-01-09. The complainant has mentioned the details of the loan taken and payments made and further he requested the opponents to return the documents i.e., RC book retained by the opponents with them i.e., RC book within 7 days, but they failed to return. The complainant has produced Ex.P.4 to 6 postal receipts & postal acknowledgments to show that, the said notice issued by him was returned duly served on opponents.


It is clear from the affidavit evidence of complainant and the contents of notice issued by the complainant and from the documents produced by the complainant it is clear that the complainant raised loan with TVS Finance and Services Ltd., in order to purchase the vehicle bearing registration No.KA-17-U-8515 and entered into agreement on 25-10-05 and purchased the said vehicle for the showroom price of Rs.38,999/- and made down payment of Rs.9,000/-. Further it is clear from the evidence on record that it was agreed between the complainant and the opponents that the said loan was repayable in 36 monthly installments of Rs.1,357/- and the complainant re-paid the said loan in monthly installments by issuing cheques (22 cheques) and in cash and also by issuing cheques. It is established by the complainant that the complainant has totally paid a sum of Rs.60,210/-. The loan taken by the complainant was payable to the opponents which comes to Rs.48,852/- i.e., principle + interest. The complainant has paid the excess amount of Rs.11,358/-. It is clear from the affidavit evidence of the complainant that while advancing the loan for purchasing of the said vehicle the said TVS Company retained the RC book of the said vehicle.


When the complainant has discharged the said loan it is the bounden duty of the opponents to return the RC book of the said vehicle retained by them to the complainant and also issuance of clearance certificate in favour of the complainant, but they have not done so. It is clear from the affidavit evidence of complainant that, inspite of discharging the said loan the opponents have failed to return the RC book of the said vehicle and they failed to issue clearance certificate. Under the above said facts and circumstances, we have no hesitation to hold that the above said acts of the opponents is nothing, but deficiency in service. The opponents are residents of Davanagere City and carrying their business at Davanagere.


The opponents inspite of service of statutory notices issued by this forum, they remained absent. Nothing prevented them to appear before this forum and to contest the matter or resist the claim of the complainant, but they failed to do so. In this way the opponents unnecessarily caused mental agony to the complainant. As we have already stated above, the evidence given by PW-1 is fully corroborated and supported by documentary evidence. We have no reason to dis-believe the evidence given by PW-1. Though the complainant has made excess payment of Rs.11,358/- still the complainant has not claimed the said excess payment made by the complainant to the opponents, but the complainant has claimed compensation from the opponents for deficiency in service and mental agony. Further the complainant has filed this complaint to direct the opponents for return of RC book retained by them in respect of the said vehicle and for issuance of clearance certificate. As we have already stated above that, in this case the above said acts of the opponents is nothing, but deficiency in service. The opponents have unnecessarily caused mental agony to the complainant retaining the RC book and without issuing clearance certificate.


The opponents unnecessarily forced the complainant to approach this forum and to file this complaint. Keeping in view the above said facts and circumstances, we feel it just and proper to direct the opponents to pay a compensation of Rs.2,000/- for deficiency in service and mental agony and Rs.1,000/- towards litigation expenses. Further, we feel it just and proper to direct the opponents to return the RC book of the complainant’s vehicle retained by them while advancing the loan and for issuance of clearance certificate in favour of the complainant. Accordingly, we answer Point No.1 in Affirmative, Point No.2 as entitled to the extent stated below.



Point No.3



9. Inview of our findings on Points No.1 and 2, the complaint filed by the complainant against the opponents No.1 and 2 has to be allowed in part. In the result we pass the following;



: ORDER :

·The complaint filed by the complainant against the Opponents No.1 and 2 is partly allowed.

·The Opponents No.1 and 2 are hereby directed to pay a compensation of Rs.2,000/- for deficiency in service and mental agony to the complainant and Rs.1,000/- towards litigation expenses.

·Further the opponents No.1 and 2 are hereby directed to return the RC book of the vehicle of the complainant bearing registration No.KA-17-U-8515 and issue clearance certificate forthwith.

·The Opponents No.1 and 2 are hereby directed to comply with this order within 30 days from the date of communication of this order.

Comments

  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Mr. Yadav Dashrath Ghotare, )

    R/at : Chimbli Phata, Kuruli, )

    Tal. : Khed, District : Pune 410 501. )… COMPLAINANT



    : Versus :





    TVS Shiv Service Pvt.Ltd., )

    Through its Chairman, )

    Telco Road, Chinchwad, )

    Pune – 411 019. )… OPPOSITE PARTIES





    // JUDGMENT //





    Alleging deficiency in service on the part of the Opposite Party, the Complainant has filed the present complaint, sought for directions against the Opposite Party to pay the cost and compensation alongwith the other reliefs as prayed in the complaint application.



    The facts giving rise to the present complaint briefly stated are as under :-



    [2] It is the case of the Complainant that he purchased two wheeler vehicle on 21/10/2006 by paying Rs.33,613.33/- through loan from ICICI Bank. After taking the possession of the said vehicle, it is the main grievance of the Complainant that RCTC Book was not handed over to him. Due to the non-receipt of the RCTC Book, the vehicle was not insured. The Complainant always visited the Opposite Party’s Office and asked for the RCTC Book. On 29/1/2008, the vehicle was stolen, which was not insured. Still the Complainant is paying Monthly EMI and suffering from great loss. The Complainant therefore prayed for the following reliefs :-



    Value of the vehicle : Rs. 33,613/-

    Road Tax : Rs. 2,647/-

    Mental Agony : Rs. 5,000/-



    The Complainant has filed the present complaint on affidavit dtd.14/7/2008. Alongwith the complaint application, the Complainant has also filed relevant documents, such as, Receipt, Delivery Note and other correspondence etc.



    [3] In pursuance of the notice issued by this Forum, the Opposite Party filed its written statement alongwith the affidavit dtd. 21/12/2008 and has further submitted that the Complainant has not come with clean hands with this Hon’ble Forum and denied all the allegations made against it, is not maintainable in law, as the Complainant is not a “consumer” within the four corners of the Consumer Protection Act.


    The Complainant had purchased the said vehicle through Kamlesh Auto at Pune-Alandi Road, Pune. The Complainant has never visited the Opposite Party’s office. Receipts on record show that stolen vehicle was purchased from Kamlesh Auto on 21/10/2006 and paid the sum of Rs.10,000/- as an advance and balance was paid by loan from ICICI Bank. Kamlesh Auto had handed over the delivery of the said vehicle bearing Chassis No. MD625KP5561H31188 without informing the Opposite Party as regards the same. The Opposite Party has further submitted that the Opposite Party had received the entire amount of the vehicle on 31/10/2006 and thereafter had issued their Sale Invoice bearing No. 3323 for a total value of Rs.41,556/-, as Kamlesh Auto is the sub dealer of the Opposite Party.


    The Opposite Party further submitted that in usual course of business, the RCTC Book and insurance papers are handed over to the sub-dealer and it is sub-dealer, who hands over the RCTC Book to the purchaser. The Opposite Party submitted that on enquiry with Kamlesh Auto, they had informed that they had handed over to the Complainant the RCTC Book. The Complainant had not visited the Opposite Party’s office prior to 4/12/2007 and asked for the help for getting the duplicate RCTC Book. At that time, the Opposite Party’s office asked to furnish the photocopy of tax receipt, so that they could help the Complainant to obtain the duplicate RCTC Book. The Opposite Party’s vehicle insurance was expired on 9/11/2007 and the vehicle could have easily insured prior to 9/11/2007, for this RCTC Book is not required.


    It shows the negligence act on the part of the Complainant about continuing the insurance. Further, it is submitted that prior to the registration of the vehicle by R.T.O., the insurance of the vehicle has to be obtained. Only after obtaining the insurance, vehicle can be registered. First insurance of the vehicle was obtained on 10/11/2006 and the vehicle was registered on 13/11/2006. It is the duty of the owner of the vehicle to insure the vehicle prior to the expiry of the insurance. For such negligence, the Complainant cannot ask compensation from the Opposite Party. As the Opposite Party is not liable to insure the vehicle after the first insurance has lapsed. Therefore the Opposite Party has prayed for the dismissal of the present complaint.



    [4] On 20/1/2009, the amendment application on behalf of the Complainant was filed and after hearing both the parties, this Forum has passed an order dtd.1/4/2009 and rejected the application.



    [5] The Complainant has filed rejoinder dtd.6/5/2009 on affidavit, reiterating the same contentions as are raised in the complaint application. Both the parties have filed written notes of arguments. The Complainant has filed purshis dtd.2/7/2009 for not advancing oral submissions. However, in addition to the written notes of arguments, the Opposite Party has also advanced oral submissions before the Forum.



    [6] Considering the facts of the present case, material on the record, pleadings of the parties and the oral submissions made by the Opposite Party, the following points arose for our determination :-



    Points Answers

    1. Whether the Complainant has proved that the

    Opposite Party has rendered deficient services? … No

    2. What order ? … As per final order



    REASONS :-



    [7] It is evident from the record that the Complainant has suppressed the material fact that he has purchased the disputed vehicle from sub-dealer Kamlesh Auto, who is not the party to the present proceeding. The Opposite Party has fairly admitted that Kamlesh Auto is the sub-dealer and they are bound by terms and conditions of the dealership to the extent of any manufacturing defects, sales and servicing pertaining to the vehicle. In the present complaint, the Complainant has no grievance about the manufacturing defects of the said vehicle.


    The RCTC Book has to be collected by the Complainant from the registration office, as it is his sole responsibility for which, the Opposite Party could not be held responsible. Moreover, from the record it is crystal clear that the present Opposite Party could not be held liable for continuation of insurance policy after registration of the vehicle. The present Opposite Party has never dealt with the Complainant and vicarious liability of the sub-dealer cannot be imposed on the present Opposite Party, as the Complainant’s grievance is not regarding the manufacturing defect of the said vehicle.



    [8] With reference to the above discussion, Forum is of the view that as the Complainant has not appeared before the Forum with clean hands. As also, the present complaint is short of non-joinder of necessary party. Therefore, we are of the opinion, that the present complaint needs to be dismissed with the following order :-

    // O R D E R //



    The complaint stands dismissed.

    No order as to costs.

    Certified copy of this order be furnished to the parties free of cost.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Rajesh Poojary

    S/o Smt.Vasanthi

    Near Vishnumurthy Temple,

    Doddanagudde,

    Udupi – 576102.





    ………….. Complainant

    Versus



    1. M/s Veechi Motors,

    Bhakthi Towers,

    Sri Vidya Samudra Road,m

    Near Petrol Bunk,

    Udupi – 576101



    2. TVS Motors Co. Ltd.,

    Jayalaxmi Estate,

    5th Floor, 8th Maddorss Road,

    Chennai – 600006.







    ……………… Opposite Parties







    1. Complainant has filed this complaint against the Opposite Party alleging deficiency in service and prayed for a direction to the Opposite Party to replace the existing defective vehicle with a new vehicle of good quality / road worthy. In the alternative to refund total cost of the vehicle Rs.64,000/- plus with 15% interest per annum from the date of purchase till settlement and for compensation plus cost of the litigation, etc.



    2. The case of the Complainant is that he has purchased a brand new TVS Apache Motor Cycle of 150CC with Regd. No.KA S 4559 from the Opposite Party No.1 on 11.10.2006 for a price of Rs.64,000/- and odd. Within 2 to 3 months

    Contd……….2

    the vehicle started giving trouble. The Complainant found the tyres of the vehicle defective, driving the vehicle with those defective tyres dangerous and on complaint to Opposite Party No.1 replaced the same with new tyres. Further just within a few months from replacement of tyre the battery started giving trouble. Complainant took the vehicle to the Opposite Party No.1 and after inspection of the battery same was replaced by new battery, as the Opposite Party found that the defective battery cannot be repaired. Within 7 months form the date of purchase of the vehicle both the shock observer front and back were found to be faulty and when the vehicle again taken to Opposite Party No.1 they changed the shock observer putting in their place separate parts.



    3. The suffering of the Complainant was not ended with those changes of major parts. After one year from the date of purchase the speedo meter, chain sprocket, breaking system started giving problems. The Opposite Party No.1 refused to provide free service on the plea that the warranty provided by the manufacturer was only for one year. The Complainant submits that this so called warranty itself is very ambiguous and unclear as to the duration of the warranty it only states that first 5 free service and subsequent 6 pay service totally 11 services. No where it was mentioned that these 11 services have to be completed with a period of one year or more.



    4. Taking advantage of this fluid confusion situation Opposite Party No.1 charged Rs.2,031/- for repairing speedo meter, chain sprocket and breaking system. When the Complainant objected for this, the Opposite Party No.1 was very adamant never agreed to budge to all reasonable request and plea and collected Rs.2,031/- and delivered the vehicle. The vehicle purchased in the month of October 2006 is showing so much problem within one year from the date of purchase, inspite of necessary replacement of some major parts Tyres, Battery, Front and back shock absorber, speedo meter, chain sprocket and break system. In addition, the Complainant found that shock absorber was leaking, meter and meter light is not working and self starter is not working.



    5. The Complainant experienced problems in different parts at different point in time and it is very pertinent to note that in all the cases defective parts required replacement rather than repair. All efforts made by the Complainant to get justice have failed as he is not much educated. He complained to the

    Contd……..3

    Opposite Party No.1 at regular intervals orally and through telephone, ultimately he complained on 12.2.2008 in a letter addressed to Opposite Party No.1 endorsing copy to M/s TVS Motor Ltd., Chennai. A copy of the same was sent to Balakedarara Vedike, Udupi



    6. The Complainant has raised a loan of Rs.40,000/- from HDFC Bank Kadri Mangalore, the Complainant could not pay regularly the installments due to extra burden on repair and maintenance, loss of business due to immobility without a vehicle, loss of time spent in bringing the vehicle to workshop visit their office for complaining and distribution of attention. Bank issued a notice demanding to pay Rs.47,418/- on or before 22.5.2008.



    7. Inspite of the repeated request of the Complainant and the registered notice of Balakedarara Vedike (Regd.) of Udupi, the problem was not solved and Opposite Party Nos.1 and 2 have not obliged to solve the problem of the Complainant. Hence, this complaint.



    8. After service of notice of complaint, the Opposite Party No.2 appeared through the counsel and filed the version contending that the complaint is false, vexatious and not maintainable under law. Opposite Party No.1 adopted the version filed by the Opposite Party No.2.



    9. The Opposite Party No.2 filed the preliminary objection stating that there is no cause of action for the Complainant to file this complaint and this Forum has no jurisdiction to entertain this complaint and this complaint is barred by law of limitation.



    10. The Opposite Party stated that it may be true that the Complainant might have purchased on 11.10.2006, the motor bike described in the complaint. The said purchase is subject to the terms of warranty which is 2 year or 30,000 Kms. of run which ever is earlier. The Complainant has filed the case just few days before the end of warranty period. The vehicle is out of warranty support by 11.10.2008 itself. The complaint is filed beyond the period of limitation and the same is devoid of merits.



    11. The subject vehicle not at all having any manufacturing defect. The allegation with regards to tyres, batteries front and rear shock observer, speedo

    Contd…….4

    meter, chain sprocket, breaking system etc, are all false. It is learnt from the 1st Opposite Party that the spare parts have been replaced by the 1st Opposite Party under warranty as a goodwill gesture. This Opposite Party is not either directly or indirectly responsible for any deficiency in service. It is an admitted fact that the TVS Apache Vehicle has got 2 years warranty and not one year as mentioned in the complaint. It is denied that the vehicle was defective within 2 to 3 months after the date of purchase. The notice issued by the Balakedara Vedike, Udupi was also duly replied by the 1st Opposite Party stating that the 1st Opposite Party will do the needful in resolving the Complainant’s problem. The Complainant has been availing support from the 1st Opposite Party duly and properly and took delivery of the vehicle upon full satisfaction of service rendered by the 1st Opposite Party,. Hence the Complainant’s satisfaction goes to show that there is no deficiency in service involved in the case of his approach with the 1st Opposite Party.



    12. The 1st Opposite Party has duly attended the Complainant’s vehicle and replaced the said parts under warranty. The Complainant has not escalated this replacement of such parts and mere complained about the problem faced by him. After replacing such parts the Complainant expressed his satisfaction as replacement of component became necessary due to the Complainant’s extensive use of the motor cycle. It is to be noted that the Complainant has used his vehicle from 11.10.2006 till date of last service to cross 27,642 Kms.



    13. The Complainant has used this vehicle on an average of 1,200/- Kms. per month and daily average of his use is 40 Kms. When the Complainant puts his vehicle for such use the motor cycle being an mechanical appliances required periodical maintenance. First Opposite Party might have observed that if spare part is changed they may help the customer to have better use of his vehicle, when the vehicle is sold to the Complainant in the state of perfect mechanical condition with good quality and road worthy.



    14. The second Opposite Party is not at all liable for any alleged commitment said to have been made by the 1st Opposite Party. The 1st Opposite Party did not give any assurance or made any commitment as alleged by the Complainant. The vehicle delivered to the Complainant at the time of purchase and thereafter from time to time or on perfect mechanical condition. It is

    Contd…..5

    denied that the vehicle sold to the Complainant is a second hand vehicle the averment relating to the condition of the vehicle deteriorated day by day is false. It is denied that the Complainant is illiterate. The 1st Opposite Party has duly replied the notice issued by the Balakedarara Vedike, Udupi. As there are baseless and irrelevant facts the allegations in para No.12 to 14 of the complaint are all denied. Opposite Parties are not at all liable to the client allegations made in the complaint.



    15. There is no deficiency on the part of the Opposite Party as alleged by the Complainant. On facts and in law the Opposite Parties have been extending their full support to the Complainant and the Complainant has all along availed best attention and good service to his service requirement from the 1st Opposite Party, in periodical intervals. Hence, the Opposite Parties are not at all liable for any deficiency of service in the above matter. When the Complainant has availed best service from the Opposite Parties are any of them satisfied himself and put his vehicle for further use there is no deficiency caused to him. The statement of facts regarding causing mental agony, inconvenience, loss in profession, etc are all erroneous and the Complainant is put to its strict proof thereof.


    It is incorrect to state that Opposite Parties have committed gross deficiency in service. The vehicle is not at all having any manufacturing defects. There is no obligation on the part of the Opposite Parties to replace the vehicle or to refund the price in as much as the Complainant has been continuously using the vehicle and that there is no deficiency in service or defect in goods. In the absence of expert evidence the Complaint is liable to be dismissed as not proved. The assumption of his compensation is erroneous and it is totally not supported with any proof of documentary evidence.



    16. The Complainant is not entitled or eligible for replacement or refund of price as much the purchase of his vehicle is bound by warranty condition and on reliance of the Hon’ble Apex Court this Forum may refuse to grant such reliefs. The Complainant is not liable for any compensation besides the Opposite Parties are not liable in law or not commitment of any breach of law or breach of contract. Hence, it is prayed that this Forum may be pleased to dismiss the complaint with exemplary cost and compensation in the interest of justice.



    17. The Complainant has produced 12 documents which are marked as Ex.C-1 to Ex.C-12. Opposite Parties have produced 36 documents which are marked

    Contd……6

    as Ex.R-1 to Ex.R-36. Both the parties filed affidavits, Opposite Party filed interrogatories and Complainant has filed reply affidavit. Parties have filed written argument. We heard both the parties.



    18. Now the points that arise for our consideration are:

    1) Whether the subject vehicle suffers from manufacturing defects?



    2) Whether the Opposite Parties have committed deficiency in service?



    3) Whether the Complainant is entitled for the relief claimed in the

    complaint?



    4) What Order?

    Point No.1 :

    19. It is an admitted fact that the Complainant purchased a brand new TVS Apache Motor Cycle of 150 CC bearing Regd. No.KA20 S 4559 from M/s Veechi Motors (Opposite Party No.1) on 11.10.2006 for a consideration of Rs.64,000 and odd manufactured by the Opposite Party No.2. The case of the Complainant is that subsequent to the purchase, the said vehicle started giving trouble in respect of the tyres, battery, front and back shock absorber, speedo meters, chain sprocket and break system. Further noticed that shock absorber leaking, meter and meter light not working and self starter was also not working. These major defects are found within 3 months to one year period and these cannot be wear and tear.


    It is further submitted that the manufacture, Opposite Party No.2 says all parts of the vehicle which prove to the satisfaction of the company to have a manufacturing defect will be repaired or replaced free of cost. Whenever the company replaces parts it is to say that they are satisfied parts had a manufacturing defects. Six major parts were replaced and then they had manufacturing defect. These six major parts formed around 60 to 75% of the whole vehicle. Therefore, the Complainant submits that the entire vehicle needs to be replaced or caused to be refund of its price with interest.



    20. The Opposite Party has taken the contention that there is no manufacturing defect as alleged by the Complainant. According to the Opposite Party the vehicle was purchased on 29.09.2006 and the warranty period of the said vehicle was upto 24 months (29.09.2006 to 28.08.2008) or 30000 Kms. whichever is earlier, with 5 Free Warranty Services from 500 Kms. to 12000 Kms. from 1 month to 12 months of the purchase and 6 pay services 14500

    Contd……7

    Kms. to 30000 Kms. from 13 months to 24 months. All 5 free services were availed upto 26.06.2007 and 6 pay services were availed from 13.08.2007 to 4.2.2008. the said vehicle has run 24464 Kms. subject to minor wear and tear.



    21. In order to disprove the case of the Complainant the Opposite Party filed an application dated 16.12.2008 U/s 13(1) of C.P. Act before this Forum praying to send the subject vehicle for the expert opinion to Automotive Research Association of India, Pune. In order to ascertain whether the vehicle suffers from any manufacturing defect or not. This Forum has passed an order directing the Complainant to produce the subject vehicle to the Opposite Party No.1 from whom the same was purchased and Opposite Party No.1 is directed to send the same to ARAI, Pune through Opposite Party No.2 at its cost and subject the vehicle for technical analysis and find out and get a report whether the vehicle suffers from any manufacturing defects or not. Accordingly, the vehicle was sent to ARAI on 22.02.2009 in compliance of the order of this Forum dated 13.02.2009. In reply to the enquiry with the ARAI they send a letter dated 12.06.2009 directing to deposit a sum of Rs.22,060/- as a fee for inspection and to submit the expert opinion of the said vehicle.


    The Opposite Party did not agree to pay the aforesaid amount and the Complainant is also declined to pay huge amount towards the testing charges of the motor vehicle which was purchased in the year 2006 for Rs.64,000/- and the present depreciated value is within Rs.40,000/- and the said charge is more than 50% of the depreciate value. Hence, both parties are not ready and submitted their inability to pay the aforesaid amount for getting the test report regarding the mechanical defects, if any, in the vehicle. Therefore, no expert’s opinion is availed in this complaint. The vehicle sent to the ARAI is directed to be called back without any test.



    22. Opposite Parties have filed interrogatories to the affidavit of the Complainant and the Complainant has filed reply affidavit for the same. The Opposite Party has filed the affidavit and the Complainant filed reply to the said affidavit. Complainant and Opposite Parties submitted their arguments on merits.



    23. On going through the pleadings of the complaint, in para No.6(b), (c) and (d), the defects found in the tyre, battery and shock absorber were replaced by the Opposite Party No.1.

    Contd…….8

    24. The Complainant further submitted that the sufferings of the Complainant have not ended with the changes of the above said parts. After one year from the date of purchase the major functionary parts speedo meter, chain sprocket, breaking system, started giving problem. The above parts are very essential for a safe driving and the mal function is treated as defect under Sec. 2(d)(f) of the Consumer Protection Act.


    At this stage the Opposite Party No.1 refused to provide free service on the plea that the warrant provided by the manufacturer for only for one year. It is further submitted that so called warranty itself is very ambiguous and unclear as to the duration of the warranty. It only states first 5 free services and subsequent 6 pay services, totally 11 services. No where it was mentioned that the period of warranty is for one year or more. Taking advantage of this fluid confusion situation of Opposite Party No.1 charged Rs.2,031/- for repairing speedo meter, chain sprocket and breaking system. Inspite of replacement of such major parts even now the vehicle is not defect free. The vehicle is defective in many major parts and defective as a whole.



    25. Complainant submitted that the warranty was for 24 months during the warranty period, service and defective parts should be given free of cost. However the Opposite Party No.1 charged Rs.2,031/- soon after one year and recovered the same and they kept the vehicle nearly 3 months with them. It is further submitted that no more test report or evidences are required than job cards which throw more light than any other evidences. The Opposite Party has produced the job cards which are marked as Ex.C-13 to Ex.C-32. Between 9.10.2006 to 22.7.2008 around 20 months duration Opposite Party No.1 has issued 20 job cards that is to say one card for every month the vehicle was out of order so frequently.


    Collection of Rs.2,031/- from the Complainant during the warranty period amounts to deficiency in service. Even the Opposite Party has attended to more than 20 times in 20 months but no thorough examination has been conducted by the Opposite Party No.1. In this case no expert opinion is required as facts themselves proved beyond doubt that the vehicle is defective. The vehicle is brought to the service station of Opposite Party No.1 more than a dozen times in a year. Every time showing defects in one or two major parts and every time Opposite Party replaced them with new parts that amounts clear enough proofs about defects. Job card are real indicators. The vehicle was not used extensively for 2 years, for nearly 4 months it was lying idle in the service

    Contd……9

    center of Opposite Party No.1. He has lost mobility, lost income lost credibility and lost his piece of mind. Hence prayed to allow the complaint as prayed for.



    26. Opposite Party argued that the burden of proof and onus of proof lies on the Complainant and he has failed to prove that the subject vehicle suffers from manufacturing defects and the Opposite Parties have relied on two citations :

    (1) R.Baskar Vs DN Udani & others – 2007 CTJ 129 (CP) (NCDRC) para 9

    (2) Ravneet Singh Bagag Vs KLM Royal Dutch Airlines & Anr – (SC) SC &

    NC Decisions 1996-2005 Vol. I, Pg 828.

    There is no manufacturing defects as there is nothing on record to show any manufacturing defect and relied on the citations. It is settled law that ARAI, Pune being the listed and approved testing agency is the appropriate expert, who can conduct the test and give test result and reports and its finding on the the aspect of whether the vehicle has any manufacturing defects or not . The said testing agency is the expert for the purpose of all the maters concerning. The decision under C.P.Act in this regards the following citations are referred.

    (1) Lovely Autos Vs. Harvesh Lal 2007 CTJ 471 (CP) (NCDRC) para 3

    (2) Swaraj Mazda Ltd Vs PK Chakkapore & Anr. SC & NC 1996-2005

    Vol. II, Pg 105.

    (3) Telco Ltd. Vs. T.Nagaraju – SC & NC 1996-2005 Vol. I, Pg 361



    27. Opposite Party further submitted that it is settled law that when there is no expert opinion there can no manufacturing defects on the product. In the present case there is no expert opinion available on record therefore, there is no manufacturing defect as alleged by the Complainant is established on law. In the absence of expert the forum may not find the impugned motor cycle as alleged manufacturing defect relied on the citations:

    (1) Ajith Chit Funds Pvt. Ltd. Vs. Telco 2007 CTJ 617 (CP) (NCDRC)

    (2) Lovely Autos Vs. Harvesh Lal 2007 CTJ 471 (CP) (NCDRC) para 3

    (3) Chandeshwar Kumar Vs. Chairman, Telco & Anr. – 2007

    CTJ 253 CP (NCDRC)

    (4) Minal Mani Vs Proprietor Villianur Associates & Others – 2007 CTJ

    190 (CP) (SCDRC) Pondicherry para 14.



    28. There is no prima facie case top show that there is deficiency in service by the Opposite Party. Hence the complaint is liable to be dismissed. It is impossible to detect manufacturing defect when the vehicle is put to such an extensive use to cross more than 27,000 Kms.

    Contd…….10

    29. Ex.R-36 is the document of warranty and services produced by the Opposite Party wherein the limitation of warranty is provided. The warranty clarifies that this warranty shall not apply to :

    · Normal maintenance operations such as engine tune-up, decarbonising, fuel system cleaning, oil changes, head light focusing, fastener retightening, adjustments of carburetor, ignition timing, clutch and brakes as well as other normal adjustments.

    · Replacement of normal service items or wear and tear items, including without limitation, bulbs, electrical wiring, filters, spark plugs, chain, sprockets, clutch and brake linings, fasteners, shims, washers, oil seals, gaskets, rubber, plastic and rexine components(including hoses/pipes etc) and spokes, etc.

    · Proprietary parts such as tyres, tubes and batteries, etc.

    · Any natural wear and tear, including without limitation, aging.



    Therefore, Opposite Party submitted that in case of replacement of sprocket, tyres, batteries and natural wear and tear the warranty is not applicable but as a gesture of goodwill the Opposite Party has replaced the same, the Complainant cannot claim the same as matter of right. Hence there is no deficiency on the part of the Opposite Party.



    30. Relying upon the decision above referred on the points and on going through the warranty conditions at Ex.R-36 and in the absence of expert opinion regarding the manufacturing defect of the subject vehicle, we are of the opinion that the Complainant has failed to prove that the subject vehicle is suffering from manufacturing defect. Hence, we answer the point No.1 in the Negative.



    Point No.2:

    31. In view of the Negative answer to Point No.1, we are of the opinion that Opposite Parties have not committed deficiency in their service. Hence, point No.2 also answered in the Negative.



    32. On 16.12.2008 the Opposite Party No.1 filed an application praying to send the subject vehicle for test analysis and get the technical expert’s opinion. He prayed to send the vehicle to Automotive Research Association of India

    Contd…..11

    (ARAI), Pune. Accordingly, this Forum appointed ARAI as a Commissioner to subject the vehicle for technical analysis by the expert and send expert’s opinion, informing whether the vehicle suffers from any manufacturing defects or not. We directed the Opposite Party No.1 to send the subject vehicle to ARAI through Opposite Party No.2 at its cost and get the expert’s opinion. After reaching the vehicle after prolonged correspondence the ARAI informed that subject to full payment in advance of the testing charges and fee of expert’s opinion, the testing process will be done and informed the cost of the such examination as Rs.22,060/-.


    The Opposite Parties contended that the cost is unreasonable and exorbitant and Opposite Parties did not agree to bear the said cost as being 1/3 of the original value or more than 50% of the present depreciated value of the vehicle itself. Both the parties did not agree to pay the cost and insisted upon to go on with the case on the available records and job cards produced by the Opposite Party. Now it is necessary to get back the aforesaid vehicle bearing Regd. No.KA20 S 4559 from ARAI and to hand over the same to the Complainant. We direct the Opposite Parties to get back the aforesaid vehicle from ARAI and hand over the same to the Complainant at their own cost, as the vehicle was sent to the ARAI at the instance of the Opposite Parties.



    Point No.3 and 4 :

    32. In view of the Negative answer to point Nos.1 and 2, we hold that the Complainant is not entitled for the reliefs claimed.



    33. In the result, we pass the following :

    ORDER

    The complaint is dismissed. In the circumstances of the case, we direct the Opposite Parties to get back the subject vehicle bearing Regd. No.KA20 S 4559 from ARAI, Pune at their own cost and hand over the same to the Complainant on as is condition. Opposite Parties shall comply with the aforesaid order within two months from the date of receipt of this order.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Mr. Rajendra Laximan Mhase, )

    R/at : Pimplachi Manjrewadi, )

    Taluka Khed, District Pune. )… COMPLAINANT



    : Versus :



    1. TVS Motors Company Ltd., )

    Having its Zonal Office at : Deewani Manshan, )

    Get No. 2,3,4,7, Pune – Nagar Road, )

    Waghole, Taluka Haveli, )

    District ; Pune. )

    2. Dream TVS Motors, )

    Collage Road, Rajgurunagar, )

    Taluka Khed, District : Pune. )…OPOSITE PARTIES





    // JUDGMENT //



    The facts of the present case are as under :-



    The Complainant purchased Apache Motorcycle FM model of the Opposite Party No.1, total price of the said vehicle is Rs.63,000/-, including RTO passing, insurance for fifteen years and one time tax for the said Motorcycle. On 6/4/2008, the Complainant paid the amount of Rs.25,000/- by cash and the Opposite Party No.2 issued receipt bearing No. 769. On 10/4/2008, the Complainant paid remaining price of the said vehicle – Rs.38,000/- by cash to the Opposite Party No.2 and the Opposite Party No.2 issued receipt bearing No. 772. The Complainant paid entire agreed price. The Opposite Party No.2 after payment of agreed consideration, assured the Complainant that within two days, he will give delivery of Motorcycle. As per assurance, the Opposite Party No.2 had not delivered the said vehicle within agreed time and told that the Opposite Party No.1 had not delivered the said vehicle, but will be delivered within a short time.


    The Opposite Party No.2 avoided to give delivery of the said vehicle to the Complainant, as per assurance and therefore, the Complainant has sustained physical and mental harassment. The Opposite Party No.2, on 20/7/2008, delivered Apache Motorcycle RTR 160 to the Complainant after four months. Without giving the delivery of the Motorcycle, the Opposite Parties used the amount of the Complainant for four months. Hence the Complainant is liable to get interest on the said amount.



    [2] Though the Opposite Parties had taken amount of FM Model but given delivery of RTR 160 model. The Opposite Parties after given delivery of the said motorcycle, assured the Complainant that he will give agreed model of motorcycle and comply the other agreed formalities, such as RTO passing, giving original documents and insurance within two days. As per the assurance, the Opposite Party No.2 did not comply for fifteen days, therefore, the Complainant could not used the said motorcycle for that period. After using the said motorcycle, the Complainant came to know that there is some technical problem in the said motorcycle.


    The Complainant pointed out the same thing to the Opposite Party No.2 and requested the Opposite Party No.2 to give him new motorcycle and to comply the agreed remaining things. But the Opposite Parties did not pay any attention and not given original documents and RTO passing of the new motorcycle. Hence, thereafter, the Complainant did not use the said motorcycle, as the last resort, the Complainant had handed over the possession of the said motorcycle to the Opposite Party No.2. The Complainant visited and find out that workers of the Opposite Party No.2 had opened and removed some spare-parts of the motorcycle. The Complainant immediately brought this fact to the notice to the Opposite Party No.2, the Opposite Party No.2 avoided any answer.


    The Complainant warned to the Opposite Party No.2 that if the Opposite Party No.2 will not comply with his assurances, then the Complainant will take necessary legal actions against the Opposite Party No.2. After continuous follow-up with the Opposite Parties Nos. 1 and 2, lastly the Complainant issued notice on 1/10/2008 through his Advocate for new motorcycle and original papers and RTO passing. The said notice is served upon the Opposite Parties, till today, the Opposite Parties had not complied. The Complainant on 15/11/2008, issued letter to the Opposite Party No.2 by Registered Post and informed the Opposite Party No.2 that he had handed over said motorcycle on 20/8/2008 to the Opposite Party No.2 and since then it is in the custody of the Opposite Party No.2



    [3] The Complainant has fear that the Opposite Party No.2 must have committed some problem to the said vehicle, therefore, it is necessary to direct the Opposite Parties to deliver the new Apache Motorcycle FM model or return the amount of Rs.63,000/- with interest @ 18% from 10/4/2008 till realization. The Complainant further prayed for Rs.25,000/- for mental harassment. As he could not get new motorcycle, the Complainant has bought second hand motorcycle for his use costing Rs.18,000/-, which the Complainant has from the Opposite Parties No.1 and 2 and court expenses amounting to Rs.10,000/- alongwith notice charges amounting to Rs.2,000/-, total amounting to Rs.55,000/-.



    Alongwith the complaint application, the Complainant has filed affidavit as well as relevant documents.



    [4] In pursuance of the notice of appearance, the Opposite Parties appeared and filed their respective written statements. It is the contention of the Opposite Party No.1 that the Opposite Party No.1 is a manufacturer and sales vehicles through authorized dealers, who in turn resale the same to ultimate customers and carry out services of these products.


    The Opposite Party No.1 deals with all its authorized dealers on principal to principal basis. The Opposite Party No.1 submits that in Taluka Khed, District Pune, it has authorized Dream Motors as an authorized service centre. It is pertinent to note that the Opposite Party No.1 had never granted to sale and purchase of any vehicle on behalf of it to anybody to the Opposite Party No.2. After perusal of the entire complaint, there is absolutely no whisper in so far as any lacunae of service or about any manufacturing defect. Hence the present complaint is liable to be rejected on the grounds of maintainability. It is to be noted that it is totally false and incorrect to state that the Opposite Party No.1 has appointed the Opposite Party No.2 as its authorized dealer.


    The Opposite Party No.2 is an authorized service centre and the Opposite Party No.1 have not granted any specific authority to the Opposite Party No.2 to sell its vehicle as per clause No. 10,13 of the contract with it. Hence the Opposite Party No.1 is not aware about the transaction entered into between the Complainant and the Opposite Party No.2. It is also pertinent to note that there is no model manufactured by the Opposite Party No.1 and launched in the market under the name and style Apache Motorcycle FM.. Hence any transaction in the purchase of alleged vehicle is void ab-initio. The Opposite Party No.1 has not aware the transaction of Rs.63,000/- of the Complainant and the Opposite Party No.2.


    The Opposite Party No.2 is not authorized dealer of the Opposite Party No.1. It appears from the receipt filed by the Complainant that he had deposited the said amount for purchase of RTR 160 model with the Opposite Party No.2 without the knowledge and consent of the Opposite Party No.1. At the time of actual possession, the Complainant has not refused to take the possession of the said model given by the Opposite Party No.2 . The Opposite Party No.1 has never assured to the Complainant that it will comply the agreed authorities such as RTO passing, insurance, giving original documents.


    The Opposite Party No.1 is also not aware that due to the failure on the part of the Opposite Party No.2, there were any inconveniences caused to the Complainant. The Opposite Party No.1 is also not aware that whether the Complainant had handed over the possession of the vehicle to the Opposite Party No.2. The Opposite Party No. 1 is not aware that whether the Complainant had purchased any second hand vehicle. Therefore according to the Opposite Party No.1, there is no deficiency in service and the complaint has to be rejected in toto. The written version is supported with affidavit dtd.6/4/2009.



    [5] In the written statement of the Opposite Party No.2, it is stated that the complaint is not legally maintainable. The Opposite Party No.2 has also made general denial. The Opposite Party No.2 further contended that after taking information of all motorcycles, the Complainant decided to purchase RTR -160 model of TVS Company and not FM Apache model for total price of Rs.63,000/-. According to the Opposite Party No.2, the Complainant decided to purchase red color RTR 160 Model, which was not available with the Showroom.


    The Complainant agreed and paid Rs.25,000/- in cash, for which, the receipt was issued. After that the Complainant paid remaining amount of Rs. 38,000/-, for which, the Opposite Party No.2 issued receipt and told that the Complainant has to wait for 20 to 25 days for the red color model and the Complainant shall be comply all required documents for RTO passing, and the Opposite Party No.2 gave list of required documents to the Complainant.


    At that time, the Complainant agreed all that things. After 25 days, the Opposite Party No.2 delivered the said motorcycle but the Complainant did not comply required documents for RTO passing, which were must and essential. As there is no authority to the Opposite Party No.2 to give possession of any motorcycle to any customer without RTO passing by law M.V. Act and told the Complainant that if the Complainant comply all required documents as fast then the Opposite Party No.2 within two days made RTO passing and give delivery to the Complainant. After two and half months, from said motorcycle available at show-room, the Complainant gave all documents. On 22/7/2008, the Opposite Party No.2 made RTO passing. Before passing, the Complainant requested the motorcycle for pooja.


    The Opposite Party No.2 gave delivery but at that time, the Complainant did not take papers of the said motorcycle as the Complainant has not paid Rs.350/- for Smart Card. The Complainant used and misused the motorcycle and due to the heavy rainfall and flood, engine was filled up with water and off. The said motorcycle was not restarted after that. Repairs was not possible locally. He brought motorcycle to the Opposite Party No.2. The engine was damaged due to the flood. The Opposite Party No.2 told to the Complainant to bear the repairing expenses but the Complainant not agreed to pay as the motorcycle was within the warranty period.


    The Opposite Party No.2 told the Complainant that the Complainant cannot take advantage of warranty as the repairs are due to the Complainant’s fault. Hence he left the vehicle at the Opposite Party No.2 and on 10/12/2008, the Opposite Party No.2 sent notice to take the delivery of the motorcycle. The Opposite Party No. 2 has not deceived the Complainant and motorcycle is damaged due to the negligence on the part of the Complainant, thus the Opposite Party No.2 is not responsible for anything. The written statement of the Opposite Party No.2 is supported with the affidavit.



    [6] The Complainant has filed rejoinder to the written statements of the Opposite Parties Nos. 1 and 2. It is nothing but the total denial of the written statements of the Opposite Parties Nos. 1 and 2 and repetition of the complaint application.



    [7] We have also taken into consideration the written notes of arguments filed on the record as also their oral submissions made before us.



    REASONS :-



    [8] On perusal of the documents, oral arguments, evidence produced on the record it is evident that the Complainant has paid Rs.63,000/- to the Opposite Party No.2 for the purchase of Apache Motorcycle FM model and the Opposite Party No.2 handed over the delivery of Motorcycle of RTR 160 Model, which has been accepted by the Complainant. Without any documents, firstly, the Opposite Party No. 1 has denied that about the manufacturing defect of Apache FM model and secondly, relationship between the Opposite Parties Nos. 1 and 2 is principal to principal.


    For this, the Opposite Party No.1 has produced one copy of agreement entered into between the manufacturer and service center which reveals that the relationship in between the Opposite Parties Nos. 1 and 2 is restricted only to principal to principal basis. Hence in this case, the Opposite Party No.1 cannot be hold responsible for the transaction between the Complainant and the Opposite Party No.2. There is no relationship as principal to agent in between the Opposite Parties Nos. 1 and 2.



    [9] The Complainant has stated that after booking he got the delivery of the vehicle four months late. According to the Motor Vehicle Act, for passing through RTO, necessary documents are to be provided by the Complainant. The record reveals that the documents were not provided by the Complainant to the Opposite Party No.2 for obtaining RTO passing etc.. On 20/7/2008, the vehicle was given to the Complainant without RTO passing and necessary documents, which is averred in notice sent by the Complainant through Advocate Wadekar, which is contradictory to the averments made in complaint itself.


    In the complaint, the Complainant has stated that the vehicle was handed over to the Opposite Party No.2 and in notice it was written in para (2) that the vehicle was given in the possession of the Opposite Party No.1. But in rejoinder and written statement of the Opposite Party No.2 it is stated that the vehicle was handed over to the Opposite Party No.2. The Complainant has not stated any specific deficiency in service on the part of the Opposite Party No.1 and deficiency shown for late delivery against the Opposite Party No.2 (for four months) is not sustainable as the notice given by the Complainant’s Advocate shows that necessary papers for the registration are not provided by the Complainant to the Opposite Party No.2 .


    The Complainant has stated that he saw that the Opposite Party No.2 has opened the motorcycle and his apprehension that the Opposite Party No.2 has removed genuine spare-parts from his motorcycle, but for this, he has not lodged any police complaint, no panchanama of the same incidence, any expert opinion is filed by the Complainant on the record. Hence only submissions without any cogent evidence cannot be considered.


    Secondly, the Opposite Party No.2 has stated in his written statement that the Complainant has asked the repairs which are beyond warranty and the Opposite Party No.2 could not fulfill his demands for the repairs. As a result of this, the Complainant had left the vehicle in the custody of the Opposite Party No.2, which is to be repaired by the Opposite Party No.2, and for this, the Opposite Party No.2 has issued a notice to the Complainant on 10/12/2008, to take back his motorcycle from his showroom.


    The Complainant has stated that due to the irresponsible behaviour of the Opposite Party No.2, he handed over the disputed vehicle to the Opposite Party No.2 and because of this he suffered great inconvenience and brought second hand vehicle for Rs.18,000/- which is to be recovered from the Opposite Party No.2, for particular this claim, we cannot consider this prayer as it is irrelevant with his grievances.



    [10] All the averments are vague and not supported with substantial evidence. It is cardinal principal of law that one who alleges must prove his case. In the present case, we do not find any deficiency in service on the part of the Opposite Party No.2.


    In the written notes of arguments of the Complainant, it is stated that the motorcycle was damaged, “there is no question of bearing expenses does not arise”. As the Complainant was using the motorcycle and as he could not specify manufacturing defects still wanted to get repaired from the Opposite Party No.2 as authorized service centre shows that the Complainant was well aware about the procedure of RTO passing and warranty period.


    But he has not substantiated his grievance with the necessary papers. Hence we cannot hold the Opposite Parties Nos. 1 and 2 for any kind of negligence. The Complainant being a “consumer” has totally failed to prove deficiencies against the Opposite Parties Nos. 1 and 2. With these observations, in the interest of justice, we direct the Complainant to take the possession of the disputed vehicle as it is. Rest of the claims of the Complainant are too remote.



    [11] The behaviour of the Complainant shows that he took the possession of the vehicle without RTO passing and used it which is in-contravention to the Motor Vehicle Act as contended by the Opposite Party No.2 is giving the possession of the vehicle for pooja purpose appears to be much more reasonable. However at the same time, further use of unregistered vehicle is illegal.
  • adv.singhadv.singh Senior Member
    edited February 2010
    Consumer Complaint No: 433/2008

    Between:

    M.swarnalatha W/o V.Srinivas, Hindu, 44 years F-2, Brindavan Apartments, beside Working Women’s Hostel, Near Eenadu, Seetammadhara, Visakhapatnam:530013

    … Complainant

    And:
    1. The Managing Director, Leelavathi Classics, Near MVP Double road, Isukathota, Visakhapatnam:530022.

    2. Sri Venu Srinivasan, C.M.D. T.V.S. Motor Company Ltd., P.B.No.4 Haritha, HOSUR:635109, Tamilnadu.

    … Opposite Parties

    This case is coming on for final hearing on 9-12-2009 in the presence of Sri V.Saravanna, Advocate for the complainant, and of Sri A.Rajkumar, Advocate for the opposite parties 1 & 2 and having stood over till this date, the Forum delivered the following

    : O R D E R :

    (As per the Honourable Male Member on behalf of the Bench)

    1. The case of the complainant is that she purchased TVS Scooty Tewnz at cost of Rs.32,636/- (Rupees thirty two thousand six hundred and thirty six only) on 22-10-2007 from Leelavathi classics Visakhapatnam, the first opposite party. Ever since the purchase is made and vehicle put to use,it was giving trouble and the major trouble found to be stoppage of vehicle abruptly while running and her efforts to make the opposite party to rectify the defects have failed. She therefore, lodged the complaint with the Forum against the opposite parties 1 and 2 and prayed for the reliefs

    (a) To direct the opposite party to pay back Rs.32,636/- (Thirty two thousand and six hundred and thirty six only) along with 14% interest from 22-10-2007 i.e the date of purchase and

    (b) To pay compensation of Rs.50,000/- (Rupees fifty thousand only) for causing mental agony and tension.

    (c) To pay Rs.10,000/- (Rupees ten thousand only) but failed to indicate the ground for such demand.

    2. As per the contents of the complaint, the complainant has purchased TVS Scooty from the first opposite party at a cost of Rs.32,636/- (Thirty two thousand six hundred and thirty six only) on 22-10-2007. Since then the vehicle was giving trouble; sometimes starting trouble and sometimes stoppage while running and the auto start never function at all. The complainant cited dates from April, May and July 2008 and mentioned that while free services were rendered by the opposite party, the problem not attended and her efforts to highlight the problem with the officials of the first opposite party, the problem remained unsolved and alleged that their response is poor in the context. Therefore, the complainant placed the complaint with the Forum making the demands, though not specifically for replacement but demanded repayment of the cost of the purchase. In support of her contention the complainant filed documents vide Ex.A1 to Ex.A8 and in support of her complaint, she also filed her affidavit giving details of her specific complaints and denied the contents of the common counter filed by the first and second opposite parties and vehemently denied the contents in her counter.

    3. The opposite parties vide their affidavit gave detailed reasoning in response to the contents of the complainant part I of which detailing the procedure followed by them in the process of manufacture, sale and manner of attending to the complaint were explained. In part II of the counter while responding to the defects pointed out by the complainant vehemently denied that there are manufacturing defects and contended that the vehicle has already covered 925 kilometers as on the date of the affidavit i.e 23rd January 2009, the fact which substantiates their contention that there is no manufacturing defect attributed reasons for the problems pointed out by the complainant are solely due to intermittent using of the vehicle and discreetly attributed the reasons for such defects due to improper handling of the vehicle by the complainant as it was observed by them that the complainant hardly put the vehicle into use and sometimes kept idle for days without running. As to the attending of the complaints and customers (complainant’s) satisfaction, the opposite party submitted the record of job card for the complaints attended by them vide Ex.B1 to Ex.B6 besides replying in detail of their versions vis a vis points raised in the complaint and affirmed that there are no manufacturing defects and whatever complaints made by the complainant are only due to inept handling of the vehicle and its usage citing the reasons there for.

    4. The Forum after careful examination of the versions of the complainant and corresponding counter by the opposite parties 1 and 2 as well as counter and the rejoinder of the complainant, is of the view that the complainant has not put the vehicle to the required use. It is supposed to be required especially during warrantee period. In spite of the advice rendered by the opposite parties during her complaints and analyzation there on at different times the usage mode of the vehicle did not improve. There is inconsistency in between the letter addressed by complainant to opposite parties highlighting the details of the defects as the same are not reflected in the complaint proper. Further on record, in terms of Ex.B1 to Ex.B6 the complainant assented her signature in token of acceptance of the attending of the complaints by the opposite parties 1 and 2. At the same time the opposite parties relied mostly on explaining the techniqualities read with the contents of the warrantee terms and process of certification etc. It is also their bounden duty to ensure customer satisfaction even though the customer is of ignoring of the procedures to use the vehicle and on this the Forum feels that duty is cast upon the opposite parties to attend the customers anxiety even by taking pains to make the customer understands the pros and cons of such use. In the circumstances the Forum feels that it is appropriate that partly allowed the complainant is directing the opposite parties to extend the warrantee period for a period of one year afresh and awards reasonable compensation to the tune of Rs.5,000/- (Rupees five thousand only) to be paid to the complainant besides costs of Rs.3,000/- (Rupees three thousand only).

    5. In the result, the complaint is partly allowed directing the opposite parties 1&2 to extend the warrantee for another one year from the date of issue of these orders besides awarding Rs.5,000/- (Rupees five thousand only) towards damages besides costs of Rs.3,000/- (Rupees three thousand only). Advocate fee is fixed at Rs.2,000/- (Rupees two thousand only).

    Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 14th Day of December, 2009.
  • adv.singhadv.singh Senior Member
    edited February 2010
    consumer case(CC) No. 339/05

    V.R.SHYJAN
    ...........Appellant(s)

    Vs.

    M/S.MELUR MOTORS
    ...........Respondent(s)
    BEFORE:
    1. G Yadunadhan
    2. Jayasree Kallat
    3. L Jyothikumar


    Complainant(s)/Appellant(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):

    ORDER

    By Jayasree Kallat, Member:

    The complainant had purchased a T.V.S. Victor Motor Cycle from the opposite party on 14-10-03. On 15-10-03 complainant had received a sale certificate from the wholesale dealer Gem T.V.S. Kozhikode. Sale certificate was issued in the name of the complainant with Sl. No. GT/CLT/1484. Complainant had arranged finance from B.B. Investments. On 15-10-03 opposite party had sold 2003 Model Black Coloured T.V.S. Victor Motor Cycle with Chassis No.3309 F-741547, Engine No. N-33309 M 697457 to the complainant. Complainant had paid Rs.46000/- including insurance, tax registeration charge etc. to the opposite party. Opposite party did not hand over the registeration certificate, Registeration Number and tax disc to the complainant till date. The complainant was unable to ply the vehicle without documents. On 22-2-05 Koyilandy R.T.O. had imposed Rs.1000/- as fine to complainant’s vehicle, due to plying the vehicle on the road without document and R.C. On 23-6-05 the vehicle was taken into police custody. The vehicle is still in the police station. Opposite party had received charges for getting the vehicle registered, but failed to furnish the complainant with the registeration No. and registeration certificate. Complainant has filed the petition alleging deficiency in service and unfair trade practice on the part of opposite party and seeking compensation for the deficiency in service and also mental agony the complainant had to suffer.



    Opposite party filed a version denying the averments in the complaint except those that are explicitly admitted. The complainant is not entitled for any relief. Opposite party denies the fact that the complainant had purchased T.V.S. Victor Motor Cycle from Gem T.V.S. Kozhikode through opposite party. Opposite party also denies the fact that a sale certificate was issued on 13-2-04 in the name of the complainant. Opposite party has not collected any money towards the cost of the vehicle, insurance, tax and registeration charges which comes to a total of Rs.46000/- from the complainant. The complainant has never approached opposite party for purchasing vehicle. Opposite party has not received any money from the complainant. On 15-10-03 a T.V.S. Victor Motor Cycle was sold in the name of the complainant but the order for the vehicle was given by an agent of the financier, B.B. Investment, Chennai. A person named Hamsa had approached opposite party for buying the vehicle in the name of the complainant. The complainant has never come to the opposite party institution to take delivery of the vehicle. The vehicle was taken delivery by Hamsa, agent of the financier. Hamsa had paid the amount for the vehicle and received all the papers pertaining to the vehicle. Opposite party have received Rs.40290/- from Hamsa as the cost of the vehicle, Rs.984/- the insurance charge and Rs.200/- as charges for attaining temporary registeration. A total amount of Rs.41474/- only was received by the opposite party. For the total amount of Rs.41474/- opposite party has given an invoice for Rs.40290/-, insurance cover note for Rs.984/-. These papers were handed over to Hamsa the agent of the financier on 15-10-03 itself. Owners manual, Sale certificate, Invoice, Temporary registeration certificate, Form-22, insurance cover note etc. were the documents given to Hamsa. The dealer does not have the responsibility to take registeration of the vehicle. It is the responsibility of the customer to take the registeration and get the R.C. and also to remit tax. There was no deficiency of service or unfair trade practice on the part of opposite party. The complainant is not entitled for any relief sought in the petition from this opposite party. Opposite party prays to dismiss the complaint with costs to opposite party.



    The points for consideration is (1) whether there was any deficiency on the part of opposite party? (2) Whether the complaint is entitled for any relief?
    PW1 was examined and Ext.A1 to A4 were marked on complainant’s side. RW1 was examined and Ext.B1 to B4 were marked on opposite party’s side.

    Point No.1:

    The case of the complainant is that he had purchased a T.V.S. Victor Motor Cycle from Gem T.V.S. Kozhikode through Meloor Motors, the opposite party by paying a total amount of Rs.46000/- to the opposite party. According to the complainant he had paid charges for obtaining registeration certificate, tax disc and insurance. But the opposite party has failed to furnish the documents pertaining to the vehicle. Because of the non availability of the documents of the vehicle, the complainant could not ply the vehicle on the road. According to the opposite party they have not received any amount from the complainant. They have sold the vehicle in the name of Shajan, the complainant in the petition on 15-10-03. Ext.A2 is the sale certificate. In Ext.A2name of the buyer is written as Shajan. In Ext.A2 it is also mentioned that the vehicle is held under agreement of hire purchase/lease/hypothecation with B.B. Investment, Chennai. The definite contention of opposite party is that the vehicle referred in this case was sold to one Hamsa who was the agent of a financier in Chennai that is B.B. Investment. Hamsa had paid the cash and taken delivery of the vehicle. On 15-10-03 on taking delivery of the vehicle opposite party had handed over all the papers including invoice, temporary registeration certificate, sale certificate, Form-22, insurance cover note etc. to Hamsa. The complainant’s case is that opposite party has not taken effort for obtaining registeration certificate, tax disc and insurance pertaining to the vehicle. Opposite party contents that opposite party is duty bound to register the vehicle temporarily and give the temporary certificate of registeration to the customers. It is the duty of the purchaser to obtain permanent registeration. Section-41 of Motor Vehicle Rules says that it is the duty of the owner to register the vehicle. Ext.A2 produced by the complainant shows that the vehicle is held under agreement of hire purchase with B.B. Investment, Chennai. Ext.A3 is a Lawyer Notice sent in reply to the notice sent by the complainant to the opposite party. Ext.A3 clearly mentions that one Hamsa had approached the opposite party for buying the 2 wheeler in the name of the complainant. The same Hamsa has paid the charges for the vehicle and had taken delivery from opposite party. On delivery on 15-10-03 all the papers including invoice, temporary registeration certificate, sale certificate, Form-22, insurance cover note etc. were handed over to Hamsa. Ext.A3 was sent on 4-12-04. But the complainant has not taken any effort to trace the above mentioned Hamsa. From the evidence and documents produced the Forum cannot find any deficiency on the part of opposite party. The complainant has not approached the Forum with clean hands. The Forum is of the opinion that the complainant is hiding certain facts. The picture will be more clear if both Hamsa and B.B. Investment comes before the Forum. In our opinion complainant has failed to prove that there was any deficiency on the part of opposite party. Hence Forum has come to the conclusion that there is no deficiency on the part of opposite party.

    Point No.2:-

    On a perusal of Ext.A4 receipts ( 7 in numbers) produced by the complainant Forum is of the opinion that the complainant has not paid the full amount as cost of the vehicle. He has expended only very megre amount. But the complainant was using the vehicle from 15-10-03 upto 23-6-05 until the vehicle was taken into police custody for plying the vehicle without proper documents complainant has not taken any action for about two years. As the Forum could not pin point any deficiency on the part of opposite party we are of the opinion that the complainant is not entitled for any relief.
  • edited April 2010
    Sir/Madam,

    It is with immense dissatisfaction of the after sale service of my RTR160 i'm writing this complaint. I doubt you sell quality and standardized products. It has not been more than six months my bike is giving so many complaints and it has not been rectified in the service even after clearly specified. Amogam dealer(Mettur-RS) where vehicle has been bought and first serviced; Sathya Motors, chrompet for the next two disappointing services. I just wonder how water has been mixed in petrol tank. TVS Mechanics say it happened while giving for water wash. Should i keep my bike without water wash for all the years. Is that the quality of the product you sell? And also my speedometer went dead. When I asked the service personnel they said they dont have the stock. It has been more than a month they keep on telling the same thing. Thank God atleast they did something to make run my meter but not completely. It may get stuck for few kilometers and run and stop and run and stop. Another important complaint is that oil leak from the side stand. This problem arised from the first sevice itself in Mettur-Amogam motors. Please let me know whether my query will be taken seriously and rectified at the earliest possible or should I have to go further to register a complaint in the consumer court. Waiting for your response..

    --
    Regards,
    Deepak
    9751505544
    15/26, SBI COlony,
    II Crosst Street,
    Chrompet,
    Chennai-44
  • rahulsharma685rahulsharma685 Junior Member
    edited July 2010
    i have bought TVS apache 160 rtr on date 19.9.2009 from roshan lal jain motor udaipur rajasthan.

    first service i am facing problem with my bike.
    after first service there is bubbling, hard staring movement, improper engine sound, loss breaking system, missfire, auto switch off while driving etc.


    i have compalined several time to work manager and putted bike in service center for 2 to 15 days several time but after 9 month of purchase there is no solution from there side. after that have mail to company (response@tvsmotor.in) sevral time but i am getting one answer everytime that thank you for contating us nothing else .



    pls help me out with my problem as i getting too much loss.
  • adminadmin Administrator
    edited July 2010
    If you have not received any reply even after many email, then we suggest you to file a Consumer case in the consumer forum.
  • edited January 2013
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