D.O.F. 05.07.2008

                                                                                   D.O.O.18.04.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:          Sri. K. Gopalan                    :         President

                       Smt. K.P. Preethakumari     :        Member

                                Smt. M.D. Jessy                   :         Member

Dated this the 18^th  day of April, 2011

C.C.No.158/2008

V.C. Harindranathan,   

‘Hansa’, Mamba,

Anjarakandy Grama Panchayath                :         Complainant

P.O. Muzhappala, Kannur

1.  The General Manager,

     Tata Motors Limited,

     Mumbai, Pune.

(Rep. by Adv. V. Krishna Menon)

2.  M/s. Kulathungal Motors,                    

     Toll Junction, Chakai,

     Kazhakkoottam, Bye pass road,

     Oruvathil Kottah, Anayara (P.O)            :         Opposite Parties

     Trivandrum – 695 029

(Rep. by Adv. Pramod K.)

3.  Sakthi Motors,

     Dealer, Tata Motors at Kannur,

     Nr. Training School, Kannur – 1.

O R D E R

Smt. K.P. Preethakumari, Member

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties either to replace the vehicle or to pay ` 41319 as repair charge and ` 65,000 as compensation with cost.

The case in brief of the complainant is that he had purchased a vehicle of 1^st opposite party through 2^nd opposite party dealer and had taken the possession of the vehicle having engine No.483 DL 51 JS2 720284 and chasis No.446326 TSZ936986 on 05.12.2007 with the help of 3^rd opposite party.  At the time of examination of the vehicle by transport authority for Registration and taking break, an error was found in the Engine shown in the vehicle record sheet issued by the Company.  Engine number shows in the sale letter is as 483 DL 51 JSZ 720284.  But in the engine it is shown as 483 DC 51 JSZ 720284.  The error was ‘DC’ is shown instead of ‘DL’.  So the transport authority rejected the application.  Moreover, there is some defects like ejecting excess and thick black smock during the working of engine and Kilometer reading also was not properly working.  Because of this the complainant has not obtained the taxi Registration Certificate in time.  This fact was immediately informed to the 2^nd and 3^rd opposite party by the complainant and they took the vehicle for detailed check up and verification.  After examination the 1^st opposite party issued a certificate regarding the error in Engine number punched on the Engine bay plate on 02.01.2008, the vehicle was entrusted to Focus Motors at Kozhikkode who is the authorized.  Workshop of 1^st opposite party and they produced a job card.  After receipt of certificate with respect to correct engine number RTO issued certificate of break.  The vehicle was redelivered to the complainant after necessary repair on 24.01.2008.  Meanwhile on 04.01.2008 the complainant issues a lawyer notice to parties 1^st opposite party issued a reply dated 25.01.2008 as interim reply for seeking time for report.  On 31.01.2008 1^st opposite party again issued another reply to the effect that the vehicle was delivered on 24.01.2008 after check up and necessary repairs by opposite party.  So the complainant was unable to use the vehicle for 50 days from the date of delivery.  During this time the petitioner caused lost for 1000 per day and hence a total loss of `50,000.  The complainant is failed to remit the monthly loan installment of the vehicle which is hypothecated with SBT, Kannur.  The petitioner caused mental pain and sufferings due to improper performance of the vehicle.  On the 1<sup>st</sup> day of the vehicle in the taxi stand got bad name due to its performance and even now the passengers for the locality did not call the vehicle for their trip due to its previous bad performance.  So the complainant is entitled to get the vehicle replaced or to compensate him for the loss of `50,000 as loss caused and `5000 as cost incurred as delivery  charge and further compensation of `10,000 for mental sufferings with cost of the proceedings.

Later on the complaint was amended since during pendency, the vehicle again become defective and break down on the way and as per the direction of 3^rd opposite party the complainant entrusted the vehicle to KVR dream vehicles Pvt. Ltd., Kannur and they issued invoice cash bill for 41,319 as repair charge.  The 1^st opposite party is liable to service and repairs if any is necessary at free of cost within the warranty period.  The total current kilometers reading at the relevant period  of 2^nd repair is 44,524 Kms. The warranty is limited to 18 months or 50,000 Kms whichever occur earlier.  So the complainant is entitled to get replacement of the vehicle or to get repair charge of `41,319 along with `5000 as compensation and cost.  Hence this complaint.

          In pursuance to the notice issued by the Forum all the opposite parties appeared and filed their version.

          1^st opposite party filed version with a contention that the complainant is not a consumer as per Section 2(1)(d) of Act.  There is no allegation against opposite party, that there is deficiency of service on the part of opposite party, and hence 1^st opposite party is a misjoinder of unnecessary party.  The complainant had purchased the vehicle after personal inspection.  There is an inadvertent mistake with respect to engine number of the vehicle noted in the sale letter with that embossed on the engine number of the vehicle was different.  Soon after getting information, set right the same and a fresh certificate rectifying the mistake had been issued and the vehicle was registered by the concerned authorities.  The 1^st opposite party admits that the complainant was advised by them to take his vehicle to the authorized service centre of opposite party at Kozhikode. Since the complainant alleged a thick black smoke emanating from the engine and having founded to be a minor default.  Complainant attended to it under warranty and the vehicle was trouble free after its repair.  The 1^st opposite party is not liable for any delay caused in attending the complaint.  The complainant cannot claim any dangers as per the terms and conditions of warranty.  So the 1^st opposite party is not liable to pay any amount as compensation.  Since there is no manufacturing defect of the vehicle, the complainant is not entitled for replacement.

There is no merit in the claim that complainant had incurred an expenditure of 41,319 for carrying out certain repairs at KVR dream vehicles, Kannur.  This repair was carried out after the expiry of warranty condition ie. 11/2 year or 50,000 Kms whichever is earlier.  On 20.07.2009 there is a complaint of break down.  According to opposite party, this was caused due to over heating of the engine and owing to oil break.  There was no coolant in the engine radiator and the radiator assembly had been previously welded and leak was coming from the welded portion. The vehicle was not maintained as per maintenance schedule required.   The complainant has not carried out service of the vehicle at 25,000 Kms, 35,000 and 40,000 Kms.  Eventhough the KVR dreams vehicle had advised to replace the radiator as welding on the radiation is not recommended, the complainant had got the radiator dismantled from the vehicle and taken it to an outside agency for being welded and the welded radiator had been refilled to the vehicle as desired by him.  The complainant had never complained of any engine with the vehicle at the time of services of 10,500 Km, 15,000Km, 20,500 Km and 30,500 Km.  So the complainant is not entitled to receive any amount or to replace the vehicle and hence the complaint is liable to be dismissed.

                  2^nd opposite party also filed version admitting that a mistake has been noted in the engine number and it was corrected and a corrected number plate was fixed with the vehicle at Focus motors, Kozhikiode.  The vehicle has never been brought to the 2^nd opposite party for any kind of service or repair at any point of time and has never taken possession of the vehicle.  Since there is no deficiency of service on the part of 2^nd opposite party, the complaint is liable to be dismissed.

                 3^rd opposite party also filed version submitting that they never rendered any service to the complainant.  The vehicle was purchased by the complainant not from the 3^rd opposite party and had never approached for any periodical service.  The complaint against 3^rd opposite party is raised only to get territorial jurisdiction and hence the Forum lacks territorial jurisdiction.  So the complaint is liable to dismissed.

                 Upon the above contentions the following issues have been raised for consideration.

1.       Whether the complainant is a consumer and whether the Forum has jurisdiction to try the case?

2.       Whether there is any deficiency of service on the part of opposite parties? 

3.       Whether the complainant is entitled to any relief?

4.       Relief and cost?

The evidence in the above case consists of the oral testimony of PW1, DW1 and DW2 and Ext.A1 to A6 and B1.

Issue No.1 

                 The opposite party contended that the complainant cannot be treated as a consumer as defined under Section 2(1)(d) of Consumer Protection Act and lacks territorial jurisdiction.   It is an admitted fact that the complainant had purchased the vehicle in question for his business purposes.  He further deposed before the Forum that he is a retired teacher and he is not a taxy driver.  But in Dr. Prithipal Singh Bhandari and another Vs. Mahindra and Mahindra Ltd and another the Hon’ble National Commission held that the complainant is a consumer which was reported in 111(2009)CPJ 340(NC).  In this case admittedly Dr. Bhandari purchased the jeep and was being used for commercial purpose, apart from the fact that the complainant owns as many as five other vehicles.  Admittedly Dr.Prithipal Singh Bhandari is a medical practitioner doing practice and having a clinic.  In this case the National Commission held that the complaint is maintainable under Consumer Protection Act and the complainant No.1 is a consumer.  Moreover the first and foremost allegation of the complainant against the opposite parties is that the complainant has suffered so much of hardship because of the engine number shown in the sale letter and that embarked in the engine is different.  The opposite parties also admitted the same.  The complainant contended that this difference was noted by; the RTA authorities at Kannur at the time of examination of the vehicle with reference to issuance of RC.  So the knowledge regarding cause of action for the complaint is at RTA office, Kannur which is within the jurisdiction of the Forum and hence the Forum has ample jurisdiction to try the case and hence it is found that the Forum has ample jurisdiction to try the case.

                 The further case of the complainant is that the complainant was not in a position to use the vehicle for 50 days from the date of purchase due to the fact that the engine number embossed in the vehicle is error and due to improper performance he had suffered mental pain and sufferings.  Secondly the vehicle became defective and have break down on the way as on 20.07.2009 and paid 41,319 towards repair charge, which is during the warranty period and hence the opposite party is liable to pay that amount also or to replace the vehicle.  In order to prove these contentions the complainant examined as PW1 and produced documents like, rectification certificate issued by 1^st opposite party, job card issued on 02.01.2008, lawyer notice dated 04.01.2008, letter dated 25.01.2008 and 31.01.2008 by 1^st opposite party, cash receipt dated 08.08.2009 and Taxi Registration Certificate dated 21.12.2007. The opposite parties were examined as DW1 and 2 and produced Ext.B1 in order to disprove the case of the complainant.

                 The admission of the opposite party along with the documents proves that the complainant had purchased a Sumovicta as on 30.11.2007.  It is also an admitted fact that the particulars with respect to the engine number of the vehicle noted in the sale letter with that embossed on the engine of the vehicle was different.  Moreover it is also evident from Ext.A2 job card, A3, A4 and A5 letter that the vehicle was repaired due to the defects that certain black smoke and kilometer reading is not properly showing.  Ext.A5 letter proves that the complainant had taken redelivery of the vehicle after repair on 24.01.2008.  So it is seen that the complainant could not use the vehicle for 54 days even though he took delivery on 30.11.2007.  It is very clear from the above discussion that this was caused not because of any fault on the part of complainant and it is admitted that it is a mistake on the part of 1^st opposite party.  So it is clear that there is deficiency of service and unfair practice on the part of 1^st opposite party, so the 1^st opposite party is liable to extend the warranty period of the vehicle for 54 days further ie from 24.01.2008 to 24.07.2009.  The 2^nd break down was on 20.07.2009.  Ext.A6 is the tax invoice for the above repair. As per the Ext.A6 the kilometer shown is 44,524.  Even though 1^st opposite party contended that this break down was occurred not because of any fault of the engine, but due to improper use of the complainant.  But he has not taken any steps to convince the Forum the above contentions.  So from the above discussion it is seen that the break down on 20.07.2009 was within the warranty period itself and the 1^st opposite party is liable to pay the amount incurred for the above repair.  The Ext.A6 is for 41,319.  But some charges for oil is to be deducted from the amount and accordingly the amount is 39,437.56 after deducting the amount for item No.5, 6 and 18 in Ext.A4.  The 1^st opposite party is liable to pay the above said amount to the complainant, since he has paid that amount to the service centre as repair change.  Similarly it is seen from the above discussion that the complainant had not used the vehicle for his purpose for 54 days due to the unfair trade practice on the part of 1^st opposite party by providing false engine number.  Due to these the complainant has suffered both mental as well as financial burden for which the 1^st opposite party has to compensate the complainant.  We assess `10,000 as compensation for the above sufferings which will meet the ends of justice.  Moreover the 1<sup>st</sup> opposite party is also liable to pay `1000 as cost of these proceedings.  So the 1^st opposite party is liable to pay `39,437.56 (rounded to `39438) as repair charge on 20.07.2009 and `10,000 as compensation along with `1000 as cost of the complaint to the complainant and order passed accordingly.  2^nd and 3^rd opposite parties are exonerated from liability.

                 In the result the complaint is allowed directing 1^st opposite party to pay ` 39,438 (Rupees Thirty Nine Thousand Four hundred and thirty eight only) along with ` 10,000 (Rupees Ten thousand only) as compensation and `1,000 (Rupees One thousand only) as cost of the proceedings to the complainant within 30 days from the date of receipt of this order.  Otherwise the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

                             Sd/-                      Sd/-                  Sd/-                       

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.  Copy of the certificate issued by OP

A2.Copy of the job card issued by Focuz Motors

A3.Copy of the lawyer notice sent to OP

A4.Copy of the reply notice dt.25.1.08 issued by OP 1

A5.Reply notice dt.31.1.08 issued by OP

A6.Tax invoice and receipts of cash payment issued by  KVR Dream

    Vehicles, Kannur

Exhibits for the opposite parties

B1. Copy of the conditions of warranty (relevant page in Operators

      Manual)

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1. Shaji.V

DW2. A.P.Anoop

                                                                        /forwarded by order/

                                                                     SENIOR SUPERINTENDENT