IN THE

Sri. P. Satheesh Chandran Nair (President):

         The complainant filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.

2. The case of the complainant is briefly stated as follows:  On 21/08/2013, the complainant had purchased one TVS King DS Diesel Three wheeler Auto-rickshaw, from 1^st opposite party for an amount of                       Rs. 1,53,000/-.  The complainant purchased the vehicle for earning his livelihood by plying the vehicle for hire.  The vehicle’s registered Number is KL-03-X-1637.  The complainant purchased this vehicle because the opposite parties published an advertisement in leading newspaper and visual media for promoting the sale of the aforementioned vehicle from the said showroom of 1^st opposite party.  It is contended that he purchased the vehicle from opposite party’s showroom at Pathanamthitta trusting the promises of providing after sales service of the vehicle.  It is further stated that though the complainant approached 1^st opposite party’s showroom at Pathanamthitta he told that there is no service centre or workshop at Pathanamthitta as directed.  The complainant had approached the service centre at Kottarakkara in Kollam District for the same.  It is further contended that the opposite parties had fraudulently sold the said vehicle to the complainant without ensuring the above stated facilities.  It is contended that above eight services were done at Kottarakkara Service Station and the last service was done on 21/03/2015.  It is further contended that the entrustment of the vehicle at Kottarakara Service Centre had incurred extra expenses and time waste to the complainant and the inter district plying of the vehicle is also against the prevailing rules. It is contended that the 1^st opposite party had closed the showroom at Pathanamthitta and their service centre at Kottarakkara, so that the complainant is suffering a lot to get the spare parts of the vehicle.  It is contended that of the above act of the opposite parties are illegal and actionable and the opposite parties are jointly and severely liable to compensate to the complainant for his loss of money, mental agony, waste of time and effort.  Hence the complaint, for the refund price of vehicle compensation cost etc. etc.

3. This Forum entertained the complaint and issued notice to the opposite parties for their appearance.  The opposite parties 1 to 3 appeared before the Forum and filed separate versions in this case.  According to the 1^st opposite party this case is not maintainable either in law or on fact.  It is contended that this petition is bad for mis-jointer of parties and pleaded that the 1^st opposite party has no connection with the alleged Sabari TVS and he has no ownership, dealership and control over the same.  It is further contended that the complainant has no right to claim any relief against 1^st opposite party and also contended that the 1^st opposite party has no knowledge or information regarding the alleged purchase of the vehicle.  It is denied that the 1^st opposite party has never promised to the complainant to provide any service to the vehicle at Pathanamthitta.  Therefore this opposite party prayed to dismiss this case with cost.

4. The version of 2^nd opposite party is briefly stated as follows.  According to this opposite party this case is not maintainable either in law or on fact. It is contended that the 2^nd opposite party has no showroom at Pathanamthitta as alleged by the complainant.  It is admitted that the Sabari TVS was the authorised dealer of TVS 3 wheeler at Kottarakkara since March 2015.  It is contended that in 2015 March the dealership was expired and the said dealership was not renewed so far.  It is stated that the 2^nd opposite party has not published any advertisement regarding the sales and services of the vehicle as alleged by the complainant. It is further contended that the complainant purchased the vehicle from Kottarakkara showroom and till 2015 March the showroom provided better service to the complainant.  According to this 1^st opposite party the complainant purchased the Autorickshaw from Kottarakara since there is no dealership for TVS three wheeler at Pathanamthitta District.  It is seriously contended that this Forum has no territorial jurisdiction to try this case because the vehicle was purchased from Sabari TVS at Kottarakkara.  Therefore, this opposite party prayed to dismiss the compliant with cost. 
5. The version 3^rd opposite party is briefly stated as follows.  According to him the complaint is not maintainable either in law or on fact.  It is contended that the complainant has no cause of action against this opposite party and this Forum has no territorial jurisdiction to entertain this complainant.  It is   categorically contended that this opposite party has no authorised dealership or service centre at Pathanamthitta and also contended that this opposite party has not executed any dealership or agreement in the name and style as M/s. Sabari TVS, Sabari Building, Ring Road, Thazhevettipuram, Pathanamthitta.  It is admitted that the complainant had purchased a TVS King DS Diesel Three Wheeler Auto-rickshaw from M/s. Sabari TVS Showroom, Pathanamthitta and denied the advertisement published in the newspaper and visual media by the said dealer.  It is stated that the company has an authorised dealer at Kottarakkara where the after sales service are also available.  It is further contended that the complainant has not bought the vehicle from M/s. Sabari TVS, Pathanamthitta and the same can be evident from document No.1&2 which was produced by the complainant in this case.  According to this opposite party the alleged promise given by the 1^st & 2^nd opposite party after sales, service including availability of spare parts and repairs at Pathanamthitta are utter false.  It is further contended that this contesting opposite party has an authorised dealership at Kottarakkara and the said dealer is rendering effective after sales service and provide spare parts to meet the demands of the customers.  It is admitted that the authorised dealer at Kottarakkara closed their showroom and after closing of the said showroom a new authorized service centre started in the name and style as Saju Varghese S4, Automobiles, near MGM School, Mylom Junction, Kottarakkara vide License No. MPX 555.  It is contended that the complainant has no right to get any kind of compensation as alleged by the complainant from this opposite party.  The contesting opposite party submitted that there is no unfair trade practice or deficiency in service happened from their part.  Therefore this opposite party prayed to dismiss the complaint with cost to them.
6. On the basis of the complaint, version and records before us, we framed the following issues for consideration.

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

7. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination and he was examined as PW1.  Through PW1 Ext. A1 to A6 were also marked.  Ext. A1 is the original money receipt No.333 dated: 21/08/2013 issued by the M/s. Sabari TVS.  Ext. A2 is the original money receipt No. 334 dated: 22/08/2013 issued by the M/s Sabari TVS.  Ext. A3 is the Copy of Insurance Policy period 22/08/2014 to 21/08/2015.  Ext. A4 is the copy of Contract Carriage Permit. Ext. A5 is the Copy of registration certificate issued by RTO, Pathanamthitta.  Ext. A6 is the original colour brochure issued to the public by the opposite parties.  Ext. A7 is the copy of Owner’s Manual issued by TVS Motor Company.  Ext. A8 is the Original ‘TVS Saathi’ Extended Warranty Booklet issued by the 3^rd opposite party.  On the other side 3^rd opposite party examined its territory manager one B. Visak as DW1.  DW1, he who filed a proof affidavit and an additional proof affidavit in lieu of his chief examination and through him Ext. B1 to B7 were also marked.  Ext. B1 is the Authorization letter dated: 13/10/2015.  Ext. B2 is the copy of transfer letter dated:10/10/2013.  Ext. B3 is the copy of the RTI application dated:25/01/2017.  Ext. B4 is the copy of reply no. 3431/17 dated: 02/02/2017.  Ext. B5 is the copy of dealership agreement dated: 25/09/2009. Ext. B6 is the tax invoice details dated: 18/08/2013.  Ext. B7 is the copy of E-mail communication regarding the intimation of closing of dealership at Kottarakkara, with effect from 31/03/2015.  On 09/12/2015 the 2^nd opposite party filed a maintainability petition (IA.117/2015) for hearing maintainability on account of territorial jurisdiction as the preliminary issue.  Meanwhile the complainant also filed two petitions as IA. 13/2016 & IA.14/2016.  The IA .13/2016 is for impleading 4^th opposite party as an additional opposite party and the IA.14/2016, is for directing the opposite party to furnish the name and address of the partners of the firm.  We heard all this IA and allowed IA 13/16 and IA 14/16 in favour of the complainant.  The IA 117/15 the question of territorial jurisdiction was disposed to consider the said issue at the time of final hearing. On 28/07/2017 the complainant filed a memo for deleting 4^th opposite party from the party array.  On the basis of the memo this Forum deleted additional 4^th opposite party from the party array.  After the closure of evidence we heard the complainant and 3^rd opposite party.  

8.  Point No.1:  The 1^st to 3^rd opposite party strongly contended that this case is not maintainable before this Forum, since this Forum has no jurisdiction to try this case.  When we evaluate the evidence adduced by the both sides in this case, it is to see that the complainant he who purchased a ‘TVS King Diesel’ auto rickshaw from 1^st and 2^nd opposite party.  When we look into the address of 1^st and 2^nd opposite party, it is to be noted that the complainant has taken further steps against 1^st and 2^nd opposite party for appearance on 06/11/2015.  It is evident to see that 1^st and 2^nd opposite party appeared before this Forum on the posting date and sought time for version on the same day.  It is true that 1^st and 2^nd opposite party in their version categorically contended that they have no showroom or dealership at Vettipuram Road, Pathanamthitta as alleged by the complainant.  When we examine the complaint and proof affidavit of the complainant, it is to be understood that the complainant he who purchased the said auto rickshaw from the showroom which was functioning at Mylapra Pathanamthitta.  According to the complainant as PW1 the it is deposed that he purchased TVS King Diesel auto rickshaw from Sabari TVS showroom at Pathanamthitta for an amount of Rs.1,53,000/- on 21/08/2013.  Though the 1^st to 3^rd opposite party seriously opposed the jurisdiction question they failed to adduce any positive evidence at the time of trial before this Forum.  It is also to be noted that though the complainant filed proof affidavit in lieu of the chief examination and he was examined as PW1, the 1^st and 2^nd opposite party has not cross-examined PW1.  Hence the evidence adduced by PW1 is unchallengeable as far as 1^st and 2^nd opposite parties are concerned.  It is true that the 3^rd opposite party alone cross-examined PW1 and tried to substantiate their case.  When we examine the testimony of PW1 in 3^rd opposite party’s cross-examination no question can be seen challenging the contention of dealership of opposite party 1 and opposite party 2 at Pathanamthitta. The 3^rd opposite party did not put any specific question with regard to the issue of jurisdiction to PW1.  On the basis of the above evidence and finding we are inclined to find that this case can be tryable before this Forum since this Forum has enjoy jurisdiction for the same.    Hence Point No.1 found also in favour of the complainant.

 9. Point Nos. 2 and 3: - For the sake of convenience, we would like to consider Point No.2 and 3 together. The complainant as PW1 deposed that he purchased the vehicle from Sabari TVS, showroom Pathanamthitta for an amount of Rs.1,53,000/- on 21/08/2013 by believing and attracting the advertisement published by 1^st and 2^nd opposite party in this regard.  It is further deposed that 1^st and 2^nd opposite party assured sales service and availability of spare parts at Pathanamthitta.  According to PW1, 1^st and 2^nd opposite party failed to comply above said assurance given to him and in fact PW1 get the above services only from Kottarakkara which is within Kollam District.  In order to substantiate the case of the PW1, he produced a receipt for an amount of Rs. 1,53,000/- dated:21/08/2013 issued by Sabari TVS 3 wheeler dealer Mylapra P.O, Kottarakkara.  The genuineness of this Ext. A1 has not been challenged by any of the opposite parties at the time of cross-examination.  Ext. A2 is a cash payment of Rs. 1,300/- dated: 22/08/2013 for an additional warranty which was also issued by this same TVS dealer.  The relevancy of the said Ext. A2 was also not challenged by the opposite parties.  Ext. A3 shows that a valid insurance policy existed for the vehicle from 22/08/2014 to 21/08/2015.  Ext.A4 & A5 shows that the auto rickshaw is having a contract carriage permit and a valid registration certificate on that period.  Ext. A6 is a brochure published by 1^st and 3^rd opposite party for the promotion of sales of this type of vehicle.  Ext. A6 brochure shows “നിങ്ങൾ കാത്തിരുന്ന സ്വപ്ന വാഹനം ഇതാ...... TVS അവതരിപ്പിക്കുന്നു.          

                         അംഗികൃതഷോറൂം

                                 ശബരി TVS,

 ശബരി ബിൽഡിംഗ്, റിംഗ്റോഡ്, താഴെവെട്ടിപ്രം,            കെ കെ സെൻറർ, 

                പത്തനംതിട്ട                                                                         മൈലം പി ഒ, ഇഞ്ചക്കാട്, കൊട്ടാരക്കര” 

When we evaluate the main contention of the complainant of this case we can see that the complainant is mainly relying Ext.A6 brochure.  At the time of cross-examination of PW1 by 3^rd opposite party he has not raised any dispute with regard to the genuineness or relevance of Ext. A6.  In the light of the evidence in records and considering testimony of PW1 we can safely come to a conclusion to the effect that 1^st and 2^nd opposite party conducted a showroom at Sabari Building, Ring Road, Thazhe Vettipuram – Pathanamthitta.  When we examine the cross-examination of DW1, it is interesting to see that though the DW1 has got knowledge about the Ext. A6 brochure he has not taken any legal action against the persons behind Ext. A6.  In cross DW1 answered “നിങ്ങൾ അവകാശപ്പെടും വിധം ഇങ്ങനെ ഒരു പരസ്യം നൽകിയതിന് എതിരായി  OP1 & OP2 ന് എതിരെ എന്തെങ്കിലും നിയമനടപടികൾ സ്വീകരിച്ചിട്ടുണ്ടോ (A) ഇല്ല  (Q) ഈ പരാതി കിട്ടിയപ്പോൾ   dealership ഇല്ലാതായിപ്പോയി 2015 march ൽ ടി സ്ഥാപനം close ചെയ്തു agency വ്യവസ്ഥകൾ തെറ്റിച്ച് വിരുദ്ധമായി പ്രവർത്തിക്കുന്ന ഒരു സ്ഥാപനത്തിനെതിരെ സ്ഥാപനം നിർത്തിക്കഴിഞ്ഞതിനുശേഷവും നടപടി സ്വീകരിക്കുന്നതിന് തടസ്സണില്ലല്ലോ  (A) ഇല്ല. (Q) നിങ്ങൾക്ക് നോട്ടീസ് കിട്ടിയതിന് ഈ കേസിലെ  OP1 & OP2 പത്തനംതിട്ടയിൽ M/s  Sabari എന്ന സ്ഥാപനം നടത്തിയിരുന്നോ എന്ന് അന്വേഷിച്ചിരുന്നോ. (A) അന്വേഷിച്ചു.  2013 - 14 കാലഘട്ടത്തിൽ ഇപ്രകാരം സ്ഥാപനം പ്രവർത്തിച്ചിരുന്നു. എത്ര വാഹനം വിറ്റു എന്ന് അറിയില്ല. ഇപ്രകാരം agency ഇല്ലാത്ത സ്ഥലത്തു വാഹനം വിൽപന നടത്തിയതിന് എന്തെങ്കിലും നിയമനടപടികൾ OP1 & OP2 ന് എതിരെ നടത്തിയിട്ടുണ്ടോ . (A) ഇല്ല”.   On the basis of the deposition of 3^rd opposite party the manufacturer of the vehicle, it is come out in evidence to see that there was a dealership firm at Vettipuram, Pathanamthitta in 2013, 2014 and vehicles were also sold at that time.  If the 3^rd opposite party had any bonafide approach against the alleged Ext.A6 brochure, what prevented them to initiate any legal proceedings against the wrong doer.  In another cross-question DW1 answered “(Q) Company  യുടെ അറിവും സമ്മതവുമില്ലാതെ OP1 & OP2 നടത്തിയ  Ext. A6 പരസ്യത്തിന് എതിരെ എന്തെങ്കിലും നിയമനടപടികൾക്ക് ഇപ്പോഴെങ്കിലും ആലോചിക്കുന്നുണ്ടോ  (A) ഇല്ല”.   On the basis of the above testimony of  DW1 it reveals that 3^rd opposite party had got knowledge with regard to the dealership of 1^st opposite party & 2^nd opposite party at Mylapra – Pathanamthitta.  But at the same time 3^rd opposite party had no intention to proceed against this 1^st and 2^nd opposite party on legal grounds.  Ext.A7 is the copy of the owner’s manual and Ext. A8 is the extend warranty registration along with job service record.

    10.  In order to substantiate the contention of 3^rd opposite party DW1 adduced Ext. B1 to B7 documents. Ext. B1 is an authorized letter which authorized DW1 to conduct the case before this Forum.  Ext. B2 is a letter issued by TVS Motor Company in favour of the Power of
Attorney Holder on 10/08/2013 with regard to his transfer to Cochin and other allowances paid to him. Ext.  B3 is an application under Right Information Act to District Labour Office, Pathanamthitta in order to know the complainant’s job, salary etc.etc.  When we evaluate Ext.B4 document it is to understood that the complainant herein is a casual worker and drawing                 Rs. 650 as daily wages for his job.  Ext. B6 is the tax invoice of TVS Motors Company to show that the company has paid tax to the vehicle in question to the concerned.  Ext. B7 is a letter issued by additional 4^th opposite party which is an acknowledgement of stopping of all transactions with effect from 31/03/2015 and relinquishment of the said agency which was functioned at Mylom P.O, Kottarakara in Kollam district.  As discussed above when we evaluate the pleading and testimony of DW3 as well as evidence adduced as Ext. B1 to B7.   It can be inferred that there is an agency in the name and style as Sabari TVS Auto-rickshaw Showroom, Sabari Building, Ring Road, Thazhe vettipuram, Pathanamthitta was functioning at the time of the purchase of this vehicle.  It is also come out in evidence to see that at the time of the service of the said auto-rickshaw the opposite party’s showroom was not functioning within Pathanamthitta district.  Therefore the complainant was forced to approach the additional 4^th opposite party’s workshop which was functioning at Mylom P.O, Kottarakkara. As per Ext. B7 the said Service Centre was also closed with effect from 31^st March 2015.  Anyway the non-availability of the Service Centre at Pathanamthitta or even at Kottarakkara had highly affected the convenience of the complainant in this case.  We do admit that even if the complainant purchased the auto-rickshaw from vettipuram at Pathanamthitta, there is no evidence to show that the said opposite party has given a written agreement of service within Pathanamthitta forever.  However a complainant who believed the assurance given by opposite party with regard to the service facility and availability of the spare parts within Pathanamthitta District are the reasons for the purchase of the vehicle.  Therefore, we find that it is the duty of the opposite parties to give reasonable service facilities to a customer as assured.  On the basis of the evidence before the Forum we can find that the opposite parties are failed to give the service facility to the complainant.  It is also come out in evidence to show that 1^st opposite party, 2^nd opposite party and additional 4^th opposite party are authorised dealers of 3^rd opposite party the manufacturer of the vehicle. Though the complainant filed this case for refund of the price of the vehicle along with compensation we don’t think that the complainant is eligible for a refund of the purchase money as pleaded.  Considering the nature and circumstances of the case the complainant is only eligible for a reasonable compensation from the opposite parties for the non-availability of service centre within Pathanamthitta District.   Therefore 1^st opposite party to 4^th opposite party are severely and jointly liable to the complainant.  Point No.2 and 3 are found accordingly.

              11.  In the result, we pass the following orders:

1. The opposite party 1 to 3 are here by directed to pay a compensation of Rs. 50,000/- (Rupees Fifty Thousand only) and a cost of Rs. 3,000/- (Rupees Three Thousand Only) to the complainant with 10% interest from the date of order of this case onwards.

                             Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of July, 2017.

                                                                                     (Sd/-)

                                                          P. Satheesh Chandran Nair,                                                                                                                                                                                                                                             

                                                                   (President)

Smt. Sheela Jacob (Member)               :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Biju. A

Exhibits marked on the side of the complainant:

A1 :  Original money receipt No.333 dated: 21/08/2013 issued by the M/s.                        

        Sabari TVS

A2 :  Original money receipt No. 334 dated: 22/08/2013 issued by the M/s 

        Sabari TVS

A3 :  Copy of Insurance Policy period 22/08/2014 to 21/08/2015

A4 :  Copy of Contract Carriage Permit.

A5 :  Copy of registration certificate issued by RTO, Pathanamthitta.

A6 :  Original colour brochure issued to the public by the opposite parties.

A7 :  Copy of Owner’s Manual issued by TVS Motor Company. 

A8 :  Original ‘TVS Saathi’ Extended Warranty Booklet issued by the 3^rd 

        opposite party.

Witness examined on the side of the opposite parties:

DW1 :  Vaisakh.V

Exhibits marked on the side of the opposite parties:

B1 : Authorization letter dated: 13/10/2015. 

B2 : Copy of transfer letter dated:10/10/2013. 

B3 : Copy of the RTI application dated:25/01/2017. 

B4 : Copy of reply no. 3431/17 dated: 02/02/2017.

B5 : Copy of dealership agreement dated: 25/09/2009.

B6 : Tax invoice details dated: 18/08/2013. 

B7 :  Copy of E-mail communication regarding the intimation of closing of  

         dealership in Kottarakkara, transaction effect from 31/03/2015.E       

                                                                                                                          (By Order)

     Copy to:- (1)  Biju A,

                          Kuzhikkattil Puthen Veedu,

                          Azhoor, Pathanamthitta.

2. Ashok Kumar, General Manager & Proprietor,

                 Sabari TVS Autorickshaw Showroom,

                 Sabari Buildings, Ring Road,

                 Thazhe Vettippuram, Pathanamthitta.

3. The Manager,

                 Sabari TVS Autorickshaw Showroom,

                 Sabari Buildings, Ring Road, Thazhe Vettippuram,

                 Pathanamthitta.

4. The Managing Director,

                TVS Motor Company Ltd.,

                Registered Office, Jayalekshmi Estate,

  8, Haddows Road, Chennai, Pin – 600006, Tamil Nadu.

5. M/s Sabari TVS, K.K. Centre,

                          Mylom.P.O, Inchakkadu,

                          Kottarakkara.

6. The Stock File.

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