BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Wednesday the 22nd day of April 2009
C.C.No.65/07
Between:
Smt. N.G.Rajeswari, W/o. Late P.R.Seshan,
R/o.305, Model Towers, Gayatri Estate, Kurnool. … Complainant
Versus
M/s.M.S.A. Motors, Represented by its Managing Director,
Abdullah Khan Estate, Kurnool.
2. Maruthi Udyog Limited, Represented by its Managing Director,
11th Floor, Jeevan Prakash Building, Kasturiba - Gandhi Marg,
New Delhi
… Opposite parties
This complaint is coming on this day for orders in the presence of Sri M.Sivaji Rao, Advocate, for the complainant, and Sri. Syed Shafaquth Hussain , Advocate for opposite party No. 1 and Sri. A.Anil Kumar, Advocate, for the opposite party No. 2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C. No.65/07
1. This case of the complainant is filed U/S 11 and 12 of C.P. Act seeking direction on the opposite parties jointly and severally to replace the car with a new ALTO LX 1 car or to refund the cost of the vehicle to the complainant along with Rs.1 lakh as compensation for mental agony and hardship suffered at the conduct of the opposite parties and the cost of the case along with other relief’s entitled in the exigencies of the case alleging the purchase of Maruthi Alto Car by her on 05-01-2007 from the opposite party No.1 for Rs.3,15,000/- on representation of the sales executive of the opposite party No. 1 as to some cash incentives and other attractive features of said vehicle and its run for a distance of 30 KM only till then and an inconsistent representation to the former by the sales executive of the opposite party No. 1 at the time of the delivery of the car at 10-30 PM of 05-01-2007 as the said vehicle has ran for more than 1000 kilometers by that time and the tampering of its speedometer to conceal that and so the said vehicle as warranting its first service , the fact of which if known earlier to her she would have not preferred the purchase of said vehicle which was found on the day break with several appearent defects such as (1). Loose attachment of right side head lamp , (2) considerable dent on the right side of fender , (3) none functioning of right side indicator , (4) a big patch on the trunk , (5) white patches and scratches inside the right rear door , (6) oil finger prints on back of the front seat , (7) bad interior cleaning , (8) considerable fading of the paint on accelerator . The sale executive refusing to replace with new car promising only to attend the said defects as invoice already was raised , and the complainants non availability till 12-01-2007 on account of her going to Hyderabad for medical consultation and the Sales Executive delivering the invoice of said vehicle to her on 13-01-2007 which envisage the month and year of the manufacturing of the said vehicle to February 2006 as against the earlier representation that it was of December, 2006 and inspite of repeated requests from 13-01-2007, taking the said vehicle for first servicing on 22-01-2007 and returning it to the complainant on 01-02-2007 attending its first servicing and some of the above defects and from the very first servicing within 17 days of purchasing its run for 1000 kilometers is implied and the opposite parties harassing the complainant at the time of registration of said vehicle , by not taking mention of the chassis series number of said vehicle temporary registration certificate papers , and furnishing it at last , on persistent persuasion furnishing it to the RTO on 05-02-2007 paying correction charges of Rs.600 /- on 07-02-2007 and there by delaying the permanent registration to said vehicle for three days and making the complainant not to take vehicle on to road till then and the above acts of the opposite parties ensued mental agony , anguish , physical inconvenience , frustration amounting to not only to deficiency of service on its part but also to unfair trade practice with fraudulent representation .
2. In pursuance to the notice of this forum as to this case of the complainant the opposite parties caused their appearance through their counsel and contested the case filling its written version denying of their liability and any bonafides in the cause of action of the complainants case.
3. The written version of the opposite party No. 1 besides questioning the justness and maintainability of the complainants case allege firstly the misdiscription of the opposite party No. 1 in complaint as M/s. MSA Motors as represented by its authorized dealer while the M/s. MSA Motors is an independent firm by itself and is authorized dealer of Maruthi Udyog Limited , secondly the visit of complainant on 05-01-2007 at 5-30 PM to see the Alto car which she wanted to purchase , after being enlightened of its relevant features and particulars by the sales executive of the opposite party No.1 and opting of purchase of Alto car of wine red colour kept at the show room for demonstration as new car of that type can be supplied only on order in 15-20 days after its booking and satisfying herself of the demonstration car after its due verification and having a discount of Rs.13,918/- and the delivery of the said vehicle to her at 10-30 PM of 05-01-2007 at her residence for a consideration of Rs.3,15,000/- inclusive of their life tax , temporary registration etc., , thirdly it denies the complaint allegation as to visit of sales executive of opposite party No. 1 with car at 7-30 PM of 05-01-2007 to the house of the complainant and alleged misrepresentation said to have been made by the said sales executive as to cash incentives and run of the vehicle etc, and the alleged noting on the next day of the defects of the vehicle and complainant receiving invoice papers on 13-01-2007 and there by noticing the said car as of 10 months old , fourthly the complainants bearing grudge as they refused to take back the said car for a new car or atleast to give a discount of Rs.50,000/- , fifthly the servicing to the said vehicle was done on 22-01-2007 at the request of the complainant when its meter was showing a run of 732 Kilometers , to be in compliance of the mandatory instructions as to servicing , sixthly the non mention of chassis series number in temporary registration is not obligatory on its part as the invoice furnished by company does not take mention of it and all other particulars mentioned in invoice were reflected in temporary registration and there by any of its defaultive conduct , seventhly it denies the alleged misrepresentations and unfair trade practices in selling the vehicle to the complainant and seeks the dismissal of the complaint with cost.
4. The written version of the opposite party No. 2 firstly denies the status of consumer to the complainant for want of any privy and cause of action with it as the alleged purchase was made by the complainant from the opposite party No. 1 paying its consideration to the opposite party No. 1 and there by questions the jurisdiction of this forum , secondly its privy with opposite party No. 1 being principal to principal basis , and there by having any concern in the direct sale effected by the opposite party No. 1 in favour of the complainant , except to provide warranty service as per terms and conditions of warranty , thirdly denies the truth of the contents of other paras of the complaint either for want of its personal knowledge or any of its concern to it being they are answerable if any by the opposite party No. 1 itself and so seeks the dismissal of the complaint as frivolous and vexatious.
5. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A31 and the sworn affidavit of the three third parties besides her sworn affidavit , the opposite party side has taken reliance on documentary record in Ex.B1 and B4 besides to the sworn affidavits of opposite parties 1 and 2.
6. Hence the point for consideration is whether the complainant has made out the alleged deficiency of service , unfair trade practice and misrepresentation of the opposite parties to hold any of their liability to the complainants claim.
7. The Ex.A1 is the sale certificate pertaining to sale of Alto LX1 five seater B- S3 vehicle to the complainant. It bears the date of issual as 06-01-2007 and its issual by the opposite party No. 1 . From the pleadings of the complainant and the opposite party the sold and the delivery of the said sold vehicle to the complainant on 05-01-2007 at 10-30 PM is not in dispute . Hence there appears any possibility to the complainant to know about the relevant particulars of said vehicle mentioned in said sales certificate ( Ex. A1) on 05-01-2007 at the time of taking delivery of said vehicle itself. But as the complainant purchased knowingly well the car she is purchasing is a car kept in showroom for demonstration purpose the grievances of the complainant as to facts represented as to the run mileage and month and year of manufacturing is not remaining much worthy of consideration .
8. The complainant contends in her pleadings and sworn affidavits that she had been to Hyderabad for medical consultation on 06-01-2007 and places Ex.A13 - certificate issued by Dr.Srikanth - which envisages her evaluation for breast pain at 12-30 PM of 06-01-2007 at Kamineni Wockhardt Hospital and her being advised for undergoing investigations on 07-01-2007 and she undergoing surgery for left breast lumpectomy on 08-01-2007 in said hospital and her discharge on 09-01-2007 . From the above what remains clear is that she was away to Kurnool from 06-01-2007 and there by any probability to her to have Ex.A1 from the opposite party No. 1 till she returns to Kurnool after a discharge at Hyderabad especially when as per Ex.B1 the said invoice originated on 06-01-2007 at 12-00 AM by which time the complainant availability at Kurnool being not possible at any stretch of imagination in the light of Ex.A13 .
9. The Ex.A6/ A31 is maintenance service record issued to complainant by the opposite party No. 1. It envisages the mileage at the time of delivery of said vehicle to the complainant is 30 KMS. But the complainant alleges that she was told by the sales executive of the opposite party No. 1 , at the time of the delivery of the said vehicle as made a run of more than 1000 Kilometers by that time . The sworn affidavit of said sale executive – Abdul Mazid – denies of any such alleged representation to the complainant as to the mileage the said vehicle ran so far . Even though the averments of complaint and sworn affidavit of the complainant and her third party G.Umapathi says of their presence at the time of delivery of said vehicle to the complainant at 10-30 PM of 05-01-2007 and at the time of the so called representation of the sales executive as to the run of the vehicle for 1000 kilometers by that time but as her earliest legal notice dated 23-02-2007 ( Ex.A11) caused to the opposite parties does not take any mention of the presence of G.Umapathi at the time of said representation made by the sales executive at the time of delivery of said vehicle to the complainant at 10-30 PM of 05-01-2007 nor any such mention as to presence of G.Umapathi finds in Ex.A28 letter dated 12-03-2007 addressed by the complainant to opposite party No. 2 , there appears every reasonable doubt on the acquaintance of the alleged facts to said G.Umapathi as witness, to lay any reliance on him to supersede the denial made by the sales executive in that regard . Hence the said averment as to said 1000 kilometers run of the said vehicle by the time of its delivery to complainant appears to be an 11th hour thought of the complainant to suit the needs of the case.
10. It is further averred by the complainant that the said sales executive has told as to tampering of the speedometer to suppress actual mileage run by said vehicle till then , which the said sales executive denied in his sworn affidavit. The complainants third party’s sworn affidavit of K.Samba Murthy except averring that speedometers can be meddled by disconnecting the wiring harness connected in between sensor and speedometer and once again can be reconnected and made run did say anywhere that he examined the said vehicle of complainant and observed any such tampering to suppress the real mileage run . Hence the said aspect of running mileage of vehicle delivered was more than 1000 kilometers at the time of its delivery as against mentioned of 30 kilometers in Ex.A6/A31 , is not remaining believable . So there appears any bonafides in said contention especially when the said vehicle was not put to immediate servicing to satisfy the mandatory manual instruction for first servicing which is to be taken on or before one month of the purchase or run of 1000 kilometers which ever is earlier and the when the said vehicle was given for first service as its speedometer is showing a reading of 732 kilometers.
11. Another grievance of the complainant is that she observed on the day break on 06-01-2007 the eight defects mentioned in her compliant . None of them first of all are inherent manufacturing defects as they could be noticed for naked eye . The complainant was said to have visited the showroom of the opposite party No. 1 at 7-30 PM of 05-01-2007 and has verified the car before to its opting for purchase and after satisfying it only made payment its cost vide Ex.A2 to A5. Being it a valuable article one for good amount of consideration it is upon the complainant as purchaser as to verify the same at the time of its delivery to have complete satisfaction as to the article she purchased . But she did not made any such endeavor and on the other hand complianse of the alleged defects as observed on 06-01-2007 on day break and leaves to Hyderabad calmly without any immediate aggitation on said observed defects . Even then some of those defects were said to have been attended by the opposite party in the first servicing. But it is not clear from the complainant as to what defects remained unattended and when the photographs in Ex.A19 were taken i..e, whether at the time of their observation on 06-01-2007 or subsequent to so called attending of them in first servicing of the said vehicle . Nor the complainant examined the photographer in the proof the same. Nor did it place the said car for physical observation during the pendency of this case to feel any truth in her said contention as to said apparent defect of said vehicle and to constitute any deficiencies on the part of the opposite party No. 1 towards her in that regard .
12. Further if the complainant was particular as to the averments relating to misrepresentation and unfair trade practice as to the delivered car and when she knows completely that she was cheated she would not have used the said car by having a further run of about 700 kilometers with such dissatisfaction and complaint without resorting to necessary redressal .
13. Another grievance of the complainant is that she was put to considerable hardship by the opposite party No. 1 at the time of obtaining permanent registration certificate to said vehicle by the conduct of the opposite party in not furnishing chassis series number of the said vehicle in the temporary registration certificate . The Ex.A8 is the Xerox of temporary registration certificate of complainant’s purchased vehicle . The proforma of it prescribed by A.P Transport Department in form C.R.Tem under Rule 86 and 87 of A.P.M.V.Rules , 1989 no where provides any column to furnish the chassis series number of said vehicle as the serial No. 7 of Ex.A8 contemplates to mention the chassis number of the vehicle and not chassis series number . But however from the Ex.A23 , letter dated 28-03-2007 of Deputy Transport Commissioner addressed to complainant , it appears that in the invoice and in temporary registration issued consequent there on the last two digits of chassis number was not found place as the said last two digits of chassis number of said vehicle were not fed in invoice and the opposite party No. 1 appears to be negligent of not feeding the last two digits of chassis number in invoice not only in case of the complainant but also in the case of the vehicles delivered to others as per contents of said letter and so ultimately paid correction charges . If the said vehicle was taken by the complainant within time meant for obtaining permanent registration , the said negligence on the part of the opposite party No. 1 might have weighed considerably in assessing the hardship if any suffered by the complainant on account of it in obtaining permanent registration . But as the complainant’s approach for permanent registration of the said vehicle being after the efflux of time prescribed in temporary registration and the opposite party No. 1 was has said to have paid the correction charges for that omission on approach of the complainant at the objection of R.T. authorities , there appears no much gravity in the alleged hardship of the complainant especially when she herself says the opposite party No .1 has furnished the required chassis series number in Ex.A8 on her approach on 06-02-2007 .
14. The Ex.A29 – letter dated 23-07-2007 of the opposite party No. 1 to complainant offers to deliver new car to the complainant in order to improve good will and good customary relationship subject to deduction of minimum use charges or minimum depreciation from the date of delivery extending the benefit of comprehensive insurance at 50% concession . There being any positive response from the complainant exhibiting acceptance to the said proposed offer of the opposite party No.1 , on the principle of proposal and acceptance as essential elements for enforceable contract , the said Ex.A29 offer creates any binding obligation on the opposite party No. 1 to honor it even at this belated stage of litigation .
15. There appears any bonafides in the grievances of the complainant as if she was really serious and mindful of them she would not used the said vehicle availing the entitled free services meant in owners manual and service booklet in a routine manner or atleast would have availed the offer made by the opposite party No. 1 under Ex.A29 promptly and would have get rid of the car which she feels not well and would have obtained a new car. In the absence of any such bonafide and diligent approach on the part of the complainant the submission of the opposite party No.1 as to the malifedes of the complainant in filling this case to have undue benefit appear to be having some probability.
16. As the complainant knowingly well selected a demonstration car instead of going for booking a new car and have availed the concession in price provided by opposite party No. 1 and the alleged run of more than 1000 KMS by the time of its purchase by the complainant being not satisfactorily substantiated and the so called alleged defects being neither inherent attributable to its manufacturing and as to the apparent defects if any it is for the buyer either to reject it from purchase outright or not to purchase till they were satisfactorily attended for their rectification before taking delivery. But the complainant not being diligent in that line there appears any deficiency on the part of the opposite party No. 1 to consider the request of the complainant and hold the liability of the opposite parties to the complainant’s claim.
17. From the pleadings on record the cost of Rs.3,15,000/- of said vehicle includes life tax and charges for temporary registration . There being any provision or pleading or interrogatory casting any duty on the opposite party No. 1 to get permanent registration of the vehicle sold at its liability and cost and on the other hand the opposite party No. 1 has corrected its mistake of not feeding in invoice the last two digit numbers of the chassis by paying the correction charges and approach of the complainant for permanent registration being belated not on account of opposite party No. 1 conduct but on account of her own conduct alone there appears any role of the opposite party NO.1 for constituting any deficiency on its part to hold any liability of it to the complainants claim .
18. As the purchase of car on 05-01-2007 being not disputed , the matters like as to when the complainant must have visited the opposite party No. 1 showroom is not remaining with any much importance and so the Ex.A20 , 21, and 26 is not remaining much worthy of appreciation in the light of the flimsyness of the said averments .
19. There being any pleadings showing any consumer grievance against the opposite party No. 2 and its role in the alleged grievances of the complainant which mainly aims at opposite party No. 1 , there appears any material to hold the liability of the opposite party No. 2 for the claim of the complainant and so the case of the complainant against opposite party No. 2 is dismissed.
20. Consequently, in the result of the above discussion, there being any cogent material for holding any deficiency of the opposite parties and thee by any of there liability to the complainant’s claim the case of the complainant is dismissed with cost.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 22nd day of April 2009.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Sale Certificate dated 06-01-2007.
Ex.A2. Cash receipts dated 05-01-07 for Rs.15,000/-.
Ex.A3. Cash receipts dated 05-01-07 for Rs.2,75,000/-.
Ex.A4. Cash receipts dated 05-01-07 for Rs.3,00,000/-.
Ex.A5. Cash receipts dated 05-01-07 for Rs.15,000/-.
Ex.A6. Maintenance service record at page No.5 & 6.
Ex.A7. Warranty policy at. Page No.7 to 11.
Ex.A8. Xerox copy of Temporary certificate of registration No.AP21LAT/R6997.
Ex.A9. Xerox copy of e-seva receipt dated.06-01-07 for life time tax and T/R fees for Rs.24,855/-.
Ex.A10. Tax/vehicle and charges invoice dated 05-01-07.
Ex.A11. Office copy of legal notice dated 23-02-07 along with 2 postal receipts
Ex.A12. Reply notice dated 03-03-07 to Ex.A11.
Ex.A13. Certificate issued by Dr.Srikanth.’
Ex.A14. Retail cash memo dated 29-01-07.
Ex.A15. E-mail letter dt.20-3-07 from complainant to OP NO.2 and reply of OP No.2 dated 21-03-07.
Ex.A16. Xerox copy of receipts for payment of cash of Rs.425/- by complainant dated.05-02-07.
Ex.A17. Xerox copy of receipts for payment of cash of Rs.600/- by complainant dated 07-02-07.
Ex.A18, Xerox copy of certificate cum policy schedule.
Ex.A19. 9 photos with negatives.
Ex.A20. Certificate issued dated 28-03-07.
Ex.A21. Time table pertaining to complainant’s duty hours in the year 2006-2007.
Ex.A22. Letter dt.24-03-07 of complainant to Deputy Transport Commissioner, Kurnool.
Ex.A23. Letter dated 28-03-07 of Deputy Trans Port Commissioner to complainant.
Ex.A24. Letter dated 19-03-07 of OP1 to complainant.
Ex.A25. Letter dt.26-03-07 of complainant to OP1 along with postal receipt & acknowledgement.
Ex.A26. Attested Xerox copy of attendance register for the month of January-2007 pertaining to the complainant.
Ex.A27. Attested Xerox copy of attendance register for the month ofFebruary-2007 pertaining to the complainant
Ex.A28. Xerox copy of letter dated 12-03-07 of complainant to OP2 along with speed post receipt.
Ex.A29. Letter dated.27-03-07 of OP 1 to complainant.
Ex.A30. Certificate dated 11-06-08 issued by Principal K.V.R. Government College for Women, Kurnool.
Ex.A31. Attested Xerox copy of maintenance service record.
List of exhibits marked for the opposite parties:
Ex.B1. Invoice dated 05-01-07 for Rs.2, 75,894/-.
Ex.B2. Sale certificate dt.06-01-07.
Ex.B3. Customer history card dt.05-01-2007.
Ex.B4. Reply of OP1 dt.03-03-2007 along with acknowledgement.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on
