DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.327/2009
MR. MANOJ BALHARA,
R/O H.NO. 399,
VILLAGE NEB SARAI SOUTH DELHI,
NEW DELHI-110068.
….Complainant
Versus
1. AUTOLINK ENTERPRISES (I) PVT. LTD.
M 3, HAUZ KHAS ENCLAVE,
NEW DELHI 110016
2. TATA MOTORS,
BOMBAY HOUSE,
24, HOMI MODY STREET,
MUMBAI-400001, INDIA.
….Opposite Parties
Date of Institution : 09.04.2009 Date of Order : 10.10.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
As per the averments made in the complaint, OP-2 is the manufacturer of Tata Indica Vista Q-Jet Aura and OP-1 is an authorized dealer of OP-2. Complainant purchased one Tata Indica Vista Q-Jet Aura car bearing Engine no. 100A2000-0002220 and chasis No. 611452KRZPD1343 for Rs. 4,88,005/- on 10.11.2008 from the OP-1 which was claimed to be updated version of the car make from OP-2. However, at the time of delivery, the complainant observed that “there was no clip of Jack Rod and roof & front windscreen beeding was out (not fixed properly) and there was scratch on FRHS driver’s door, accordingly little pain was out.” OP-2 advised him that the problems will be rectified at the workshop. Since, the complainant was in urgent need of the vehicle he took the delivery under protest noting the defects on delivery note. Thereafter, various defects appeared within 12 days of taking delivery. The complainant went to the workshop of OP for rectifying the necessary repairs on several occasions as detailed in the complaint. The complainant ultimately wrote an email dated 23.12.2008 to OP-1 enumerating the defects from which the vehicle in question had been suffering and asked to provide the status of the same as under:-
“a. RHS Fendor paint defect;
b. LHS Fendor paint defect;
c. Front Side Rear Noise (bush kit needs to be replaced according to the technician surveyed)
d. FHS bumper not properly fitted gap on sides noted;
e. RHS bumper not properly fitted gap on sides noted;
f. LHS front seat belt problem;
g. Dash board noise;
h. Windscreen beading not properly fitted gap on sides noted;
i. Roof beeding is out;
j. Bonnet not properly fitted gaps notes on RHS;
k. LHS F door lock not working;
l. Dicky lock is hard to open by key;
m. Curtons fitted in the front area are torned and need to be replaced.
n. Power staring becomes hard to move shown to the workshop problem needs to be rectified.”
According to the complainant, all these defects are manufacturing defects noted within one month from the date of purchase and hence, it becomes crystal clear that OPs had dishonest intention for causing wrongful losses to him. Hence, pleading deficiency in service on the part of OPs, the complainant has filed the present complaint for issuing following directions: -
- Direct the OPs jointly and severally to make the refund of the price of vehicle i.e. Rs. 4,88,005/- paid by the complainant or;
- Direct the OPs to replace the vehicle of the complainant with a new defect free vehicle of the same model or;
- Direct the OPs to pay , jointly and severally, a sum of Rs. 1,00,000/- to the complainant towards compensation for loss of business suffered by the complainant due to malafide act of the opposite parties and/ or;
- Direct to OPs to pay a sum of Rs. 50,000/- as damages towards the harassment and mental agony suffered by the complainant due to the acts of OP and/ or.
- Direct the OPs to pay a sum of Rs. 21,000/- as litigation cost.
OP No. 1 in its written statement has inter-alia stated that complainant has not approached this Forum with clean hands and has deliberately and intentionally suppressed material facts that the vehicle in question had met with an accident on 01.12.2008 and brought in the workshop of OP on 01.12.2008. The complainant had also filled up one Motor Claim Form in order to claim the insurance. OP-1 had charged the complainant only for the services provided by it which were not covered under the insurance policy or for which no approval was given by the said insurance company. Otherwise the vehicle in question on every visit to OP-1 has been duly entertained and been provided best of its services which fact has been duly acknowledged by the complainant himself through his email dated 23.12.2008 and by signing the satisfactory notes. It is specifically denied that the vehicle supplied by the OPs was defective one and subsequently, OPs failed to provide adequate service to the complainant. The vehicle in question did not suffer from any kind of manufacturing defects. OP No.1 has prayed for dismissal of the complaint.
OP No.2 in its written statement has inter-alia stated that the dispute cannot be termed as a consumer dispute at all as the vehicle in question has covered more than 11,550 Kms. within a period of one year of its purchase i.e. till 24.10.2009 which would amply prove that the vehicle had not suffered from any manufacturing defect. As per information received on 22.11.2008, the complainant had brought the vehicle for the first free service which was duly carried out by OP-1. The vehicle was further brought on 04.12.2008 for some repairs. However, on inspection it was found that the vehicle had met with an accident but this fact was totally concealed by the complainant. The defects were removed on payment basis, as they were accidental repairs and were not covered under the warranty. Even otherwise, on 13.12.08, 18.12.08, 23.12.08, 19.01.09, 18.03.09, 28.05.09, 18.06.09, the vehicle was again reported for minor repairs but all the repairs were duly carried out by OP-1 either on free basis or on charges, as the case may be. However, the complainant again concealed the material fact of the occurrence of accident once again, when he brought the vehicle on 24.01.09 for some repairs. The said repairs were duly carried out. It is clear that the complainant himself has been negligent in handling the vehicle and as such he is not at all entitled to any compensation as claimed. Hence, OP-2 may be discharged from their liability under the warranty clause No. 5 which is reproduced as below:-
“This warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with out standard repair procedure, or by any person other than our authorized dealers or their sub-dealers or service centers in any way so as, in our judgment which shall be final and binding, the vehicle or the part has been subjected to misuse, negligence improper or inadequate maintenance and servicing or accident or loading in excess of the carrying capacity as certified by us or the services prescribed by Operator’s Service Book are not carried out at our sales or service establishment, our authorized dealers or their sub-dealers or service centres”.
OP No.2 has prayed for dismissal of the complaint.
Complainant has filed rejoinders to the written statements of OPs. In the rejoinder to OP-1, complainant has submitted that the car had met with an accident but it was a minor one and caused only a minor scratch mark on the body of the car and nothing else. Complainant has further stated that mere signing of the satisfactory note does not mean that the OPs were giving the best services.
The fact mentioned in the reply of OP No.2 that the car in question had again met with an accident which came to the notice of the OPs on 24.01.2009 when it was brought for repairs has not been denied by the complainant in his rejoinder to the reply of OP No.1.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Bishwjeet Ganguly Attorney, has been filed in evidence on behalf of the OP-1 and affidavit of Sh. M.S. Pradeep, Senior Manager (Law) has been filed in evidence on behalf of OP-2.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments on behalf of the OP No.2 and have also gone through the record very carefully.
Admittedly, the complainant had purchased the car from OP-1 and the complainant brought the car in the workshop of OP-1 on 08.12.2008. The complainant has filed the invoice of the car as annexure CW-A(colly) for an amount of Rs. 4,88,005/- along with the insurance from Reliance General Insurance valid from 09 November, 2008 to 08 November, 2009. The complainant filed the service history of the vehicle as annexure CW/3 (colly). The complainant filed job slip service from OP-1 as annexure CW/4 and CW/5 wherein it was shown that OP-1 had charged zero amount. The complainant sent an email dated 23.12.2008 to OP-1 regarding some defects in the car as annexure CW-1/6. The complainant sent a legal notice to the OPs vide letter dated 20.02.2009. OP-1 issued a text invoice for repair as annexure CW-8. OP-1 filed the job card dated 02.12.2008. We mark it Mark A for the purposes of identification. OP-1 filed a satisfaction note dated 04.12.2008 signed by the complainant. We mark it as Mark B for the purposes of identification. OP-1 filed many satisfaction notes wherein the complainant at the time of delivery signed the same. We mark the last satisfaction note as Mark-C for the purpose of identification. OP-1 in his written statement has submitted that the claim dated 09.11.2008 filed by the complainant to the Reliance General Insurance is Annexure A and also filed annexure-C as service history of the vehicle and the job card dated 22.11.2008 as annexure-D (colly).
The complainant himself has admitted in the rejoinder of OP-1 and has not denied in the rejoinder to reply to OP No.2 that the car had met with an accident (twice). Complainant has not disclosed that he had filed the claim before the insurance company for accident claim. Therefore, the complainant has concealed material facts from this Forum. Hence, we are not inclined to believe that the car in question had any manufacturing defects. Moreover, the satisfactory note/s recorded by the complainant himself show that the complainant was fully satisfied with the services given by the OPs to him. He has filed a false and frivolous complaint with some ulterior motives. Hence, we dismiss the complaint with costs of Rs.10,000/- to be paid by the complainant to the OPs within one month from the date of receipt of copy of this order failing which the complainant shall become liable to pay Rs.10,000/- with interest @ 6% p.a. from the date of filing of the complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 10.10.2017.
