IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 11th day of October, 2021.
Filed on 17-03-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.78/2018
between
Complainant:- Opposite parties:-
Smt. Maya T.S 1. Concord Motors (India) Ltd.
Thaiparampil, Arattuvazhy N.H Bypass, Nettoor,
Alappuzha- 6880074 Cochin- 682 040
(Adv.Preethilal K.V)
2. Concord Motors (India) Ltd.
H.S Complex, Ward-7
Kayamkulam
(Adv.Sri.C.Muraleedharan &
Adv.Sri.V.Krishna Menon
for opposite parties 1 and 2)
3. Area Manager
Area office, Commercial and
Passengers Vehicles Tata
Motors Ltd., 4th floor, Live in
Tower, N.H Bypass,
Cochin- 682019
(Adv.Smt.Surya J)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
On 20.08.17 complainant saw an advertisement of 1st and 2nd opposite party with respect to various types of motor cars of TATA motors and she enquired about the same. Representative of the opposite party reached her house and explained about the services on purchase of car manufactured by M/s Tata motors. Accordingly on 20.08.17 complainant booked a TATA TIAGO car. As per the advertisement if the vehicle is booked on 20.08.17 there was an offer of ‘home theatre and ‘onakodi’ and gold ornaments through lucky draw. It was also informed that the vehicle is registered under the annual maintenance scheme by collecting an amount of Rs.7616.99/-. Complainant received a message on 05.10.17 from M/s TATA motors.
2. Complainant is having problem in the eyesight and is unable to travel alone. The vehicle was purchased for going to office. After collecting the entire amount on 30.08.17 the vehicle was delivered only on 20.09.17 and the complainant had to hire taxi for her journey. Since the service of the vehicle was available only at Ernakulam complainant had to spent more money for the same and it was suppressed. There is deficiency of service from the part of opposite parties and she is claiming an amount of Rs.24,500/- on account of taxi fare due to delay in delivery, excess amount of Rs.4919/- collected as service charge by concord motors and Rs.30,000/- as compensation for not providing service as per annual maintenance contract and Rs.50,000/- as compensation for mental agony. Complainant is also seeking an amount of Rs.20,000/- as cost.
3. Opposite parties 1&2 filed a version mainly contenting as follows:-
The complaint is not maintainable either in law or on facts. Complainant is not a consumer. Complainant has no case that there has been any deficiency in service from the part of these opposite parties. These opposite parties are unnecessary in the proceedings and so it is liable to be dismissed for misjoinder of parties.
4. There is no merit or basis in the claim of the complainant that the offer made in the advertisement was for persons booking the car on 20.08.17 that they are entitled to a home theatre and onakodi since the reading of the said advertisement would disclose that the offers made were subject to the terms and conditions prescribed. It was explained to the complainant at the time of booking. The offer was valid only for selected models and that were available in stock and further delivery of the car would have to be effected before 30.08.17. Eventhough the complainant had affected the booking of the car by paying the booking amount on 20.08.17 the balance amount towards the price of the car was received on 31.08.17. The temporary registration for the car booked by the complainant had been taken on 14.09.17 and she took delivery of the car on 15.09.17. Thus the complainant was not entitled to be included in the scheme home theatre plus onakodi. As the complainant had completed the formalities for purchase of the car only after 30.08.17 she is not entitled to the benefit of the scheme.
5. Complainant had given a cash discount of Rs.10,000/- and further that she was entitled to get a duffel bag free of cost and she had accordingly requested to collect it however she did not collect the same from the opposite party. These opposite parties are not aware about the repair charges collected by M/s Focus motors. At the time of entrusting the vehicle with M/s Focuz motors complainant had not informed them of the AMC available. These opposite parties are not liable to pay the amount. There was no deficiency of service causing mental agony to the complainant. Hence it is prayed that the complaint may be dismissed.
6. Additional 3rd opposite party filed a version mainly contenting as follows:-
The present complaint is an abuse of process of law and is not maintainable against this opposite party. The complaint is vague, baseless and ill motivated. The relationship between this opposite party and its dealer is of principal to principal basis and this opposite party is not liable for the alleged transaction of 1st opposite party. There is no privity of contract between the complainant and this opposite party.
7. The offer made in the advertisement regarding the home theatre plus onakodi was subject to the terms and conditions prescribed and it was informed to the complainant at the time of booking. The offer was valid only for selected models and that were available in stock and further delivery of the car would have to be effected before 30.08.17. The complainant had effected the booking by paying the booking amount on 20.08.17 and the balance amount was paid only on 31.08.17. The temporary registration was taken on 14.09.17 and delivery of the car on 15.09.17. Since the complainant had completed the formalities for purchase of the car only on 30.08.17 she is not entitled to the benefit of the scheme. It is understood that at the time of entrusting the vehicle with M/s Focus motors complainant had not informed them of the AMC availed by her. There was no harassment from the part of this opposite party. Hence it is prayed that complaint may be dismissed with cost.
8. After the amendment an additional version was filed more or less with similar contentions.
9. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to realize an amount of Rs.24,500/- being the amount spent for hiring taxi ?
- Whether the complainant is entitled to realize an amount of Rs.4,919/- being the amount collected by Focuz motors as service charges?
- Whether the complainant is entitled to realize an amount of Rs.7616.99/- being the amount collected for annual maintenance contract and Rs.30,000/- as compensation for deficiency for not providing annual maintenance contract.
- Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation for mental agony ?
- Reliefs and cost?
Evidence in this case consists of the oral evidence of PW1&PW2 and Exts.A1to A4 from the side of the complainant. Ext.X1 and X1 (a) were produced by the PW2. Opposite party has not adduced any evidence either oral or documentary.
10. Point Nos.1 to 5:-
For the sake of convenience these points are considered together. PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and marked Ext.A1toA3.
11. PW2 was the circulation manager of Malayala Manorama daily during 2017. He has produced the digital copy of paper dated 20.08.18. It is marked as Ext.X1. In page No.5 there is an advertisement of M/s Concorde motors. The advertisement shows various models of vehicles manufactured by Tata motors. Page No.5 is marked as X1(a).
12. On seeing Ext.X1 (a) advertisement in Ext.X1 Malayala Manorama Daily dated. 20/8/2017 PW1 booked a TATA Tiago XT Petrol car as per Ext.A1 commitment form. Rs. 1000/- as advance was transferred to the account of the 1st opposite party as per Ext.A2 receipt on 23/8/2017. The balance amount of Rs.5,03,133/- was transferred to the account of the 1st opposite party on 31/8/2017 as per Ext.A2 (a) receipt. Ext. A2(b) is the tax invoice dated 15/9/2017 of 2nd opposite party and Ext.A2 (c) is the vehicle delivery acknowledgement note dated 15/9/2017 by which the vehicle was delivered to PW1. Now the case of PW1 is that in Ext.X1 (a) advertisement there was a promise that if the car is booked on 20/8/2017 a home theater + Onakkodi will be given as a price. Though she booked the car on 20/8/2017, the said home theater and Onakkodi were not supplied to her. The further allegation of PW1 is that at the time of delivery of the vehicle an amount of Rs. 7,616/- was collected from her including her for the annual maintenance contract. However when she visited M/s Focus Automobile Services Ltd which is the service centre of 3rd opposite party M/s TATA Motors, as per Ext.A3 invoice an amount of Rs. 1919/- was collected from her contrary to the assurance that the service will be free. However it is alleged that opposite parties 1 and 2 are not providing service and so she had to produce at Focus Motors Ernakulam and Alappuzha, causing inconvenience and monitory loss to her. There is further allegation that vehicle was not delivered in time. She had to hire taxi for which she had to spend an amount of Rs.24,500/- It is alleged that there was deficiency of service from the part of opposite parties and so she has filed the complaint claiming various reliefs. Opposite parties 1 and 2 resisted the claim by filing version. It is contented that there was no assurance that home theater and onakkodi will be paid to all the persons who booked the car. Though the car was booked on 20/8/2017 the balance amount was paid only on 31/8/2017 and delivery was effected only on 15/9/2017. Since the complainant completed the formalities for purchase of the car only on 30/8/2017 she is not entitled to the special offer. It is further contented that she was given a cash discount of Rs.10,000/-. Charges for the repairs were collected by M/s Focus Motors which is not a party in this proceeding and so the opposite parties 1 and 2 are not liable. Additional 3rd opposite party filed a detailed version contenting that the relationship between them and opposite party 1 and 2 are that of principle to principle basis and hence there is no vicarious liability for the acts done by the opposite parties 1 and 2. Only if the vehicle is having any manufacturing defect 3rd opposite party is liable. It was also contended that at the time of entrusting the vehicle with M/s Focus Motors complainant had not informed about the Annual Maintenance Contract (AMC) availed by her and that is why the service charges were collected. Hence according to them the complaint against them is not maintainable and they also prayed for the dismissal of the complaint. Complainant got examined as PW1 and Ext.A1 to A4 were marked. One witness was examined as PW2 and he produced Ext.X1 and Ext.X1(a). Opposite party had not adduced any evidence either oral or documentary.
13. The fact that opposite parties 1 and 2 made Ext.X1(a) advertisement in Malayala Manorama Daily dated 20/8/2017 is not in dispute. PW2 the Circulation Manager supported the case of PW1 stating that there was such an advertisement. However he doesn’t know who gave the advertisement and it can be gathered only from the marketing division. However From Ext.X1(a) it is crystal clear that persons who were booking the vehicle on that day (20/8/2017) are entitled for a confirmed price ie, home theater + onakkodi. Opposite parties 1 and 2 have no case that the said price was given to her though as per Ext.A1 the vehicle was booked on 20/8/2017. It is true that an amount of Rs. 10,000/- as cash discount plus basic accessories are shown in Ext.A1. But Ext.X1 (a) is clear that persons who were booking on that particular day are entitled for such a fixed price. The contention taken by the learned counsel appearing for the opposite parties 1 and 2 is that though the vehicle was booked on 20/8/2017 as per Ext.A2 Rs.1000/- was given as advance on 23/8/2017 and the balance amount of Rs.5,03,133/- was paid on 31/8/2017. Further Ext.A2(b) tax invoice dated. 15/9/2017 and as per Ext.A2(c) delivery was effected on 15/9/2017. Hence according to him PW1 is not entitled for the special price. But such a contention is unsustainable in view of Ext. X1(a) advertisement. In Ext.X1 (a) it is clearly stated that persons who are booking the vehicle on that particular day(20/8/2017) are entitled for the home theater and onakkodi. From Ext.A1 it is seen that PW1 booked the vehicle on 20/8/2017 and whether the price was paid on a later date or not is immaterial. So PW1 is entitled for the home theater and onakkodi as per Ext.X1(a) advertisement.
14. PW1 is claiming an amount of Rs.24,500/- on a contention that she is having defective vision and she booked the car to avoid assistance of others. Since the vehicle was delivered on 15/9/2017 she had to hire taxi for which she had spend Rs.24,500/-. On a perusal of Ext.A1 commitment form it is seen that Expected delivery date is 28/8/2017 and the vehicle was delivered as per Ext.A2 (c) on 15/9/2017 so there is a delay of about 17 days in delivering the vehicle. But as rightly pointed out by the learned counsel appearing for opposite parties 1 and 2 it is only an expected delivery date and it will depend upon the availability of vehicle and supply of vehicles from the manufacturer. Further though PW1 is claiming an amount of Rs.24,500/- she has not produced even a scrap of paper to prove that she had hired the vehicle and spend that much amount. So she is not entitled for the said amount.
15. PW1 is claiming an amount of Rs. 4,919/- on a contention that M/s Focus Motors who is the authorized dealer of additional 3rd opposite party collected the said amount though there was an Annual Maintenance Contract (AMC). It was pointed out by the learned counsel appearing for opposite parties 1 and 2 that as per Ext.A3 receipt an amount of Rs.1,919/- is seen collected by M/s Focus automobile services Ltd. No amount is seen collected by the other invoices dated 14/10/2017 and 16/1/2018 produced by PW1. Rs. 1919/- is collected being the price of consumables it was pointed out that even if it is a free service the owner is liable to pay the price for the consumables. There is yet another hurdle in this case. As per Ext.A3 Rs.1,919/- is seen collected by M/s Focus automobile services ltd and they are not a party in the proceedings. So no direction can be given to opposite parties 1 and 2 to pay the amount since the bill is not seen issued by them. Moreover in the version filed by the additional 3rd opposite party it is contented that PW1 did not inform about the Annual Maintenance Contract and so might have collected mistake only. Since Focus automobile services ltd is not a party no direction can be given to return the same.
16. In the complaint it is stated that opposite parties suppressed from the complainant that for the service of the vehicle she had to go to Ernakulam but it is noticed that M/s Focus automobile services ltd is having a service station at Alappuzha. M/s Focus automobile services ltd is also an authorized service centre of TATA Motors and so PW1 cannot content that there was suppression of material facts. Since the service charge was collected by M/s Focus Motors who is not a party in this proceedings no compensation can be claimed from the present opposite parties. Admittedly 3rd opposite party is the manufacturer of the vehicle. In the version it is contented that the relationship between dealer (Opposite parties 1 and 2) and them are that of principle to principle basis and so they are not vicariously liable. Admittedly there was no privity of contract between PW1 and additional 3rd opposite party. It is well settled by the various judicial pronouncements that manufacturer is not liable unless a manufacturing defect is brought out. Here PW1 has no case that the vehicle had any manufacturing defect. PW1 is claiming an amount of Rs.50,000/- on account of mental agony. However it is not explained as to why such mental agony was happened. As discussed earlier the vehicle was delivered within 20 days from the date of payment of the amount. So there was no considerable delay. According to PW1 she had to go to the opposite parties several times by which she sustained mental agony. But it is not explained as to why she has to go especially when it is seen that the vehicle was delivered within 20 days of payment. The contention that there was suppression of fact regarding the service is also unsustainable. According to her she had to go to M/s Focus Motors Ernakulam and Alappuzha from the address of the complainant is seen that she is residing at Aryad Village near Alappuzha and so Alappuzha service station will be near the residence and there cannot be any mental agony for the same. However as discussed earlier it is seen that in spite of Ext.X1 (a) advertisement PW1 was not given the confirmed price of home theater + onakkodi and she had to approach this Commission to redress her grievance. It can be considered as a mental agony and monitory loss to her and hence considering the entire circumstances we are of the opinion that PW1 is entitled for an amount of Rs.10,000/- as compensation. These points are found accordingly.
17. Point No.6:-
In the result complaint is allowed in part.
A) Opposite parties 1 and 2 are directed to supply the home theater and onakkodi as promised in Ext.X1 (a) to the complainant forthwith.
B) Complainant is allowed to realize an amount of Rs.10,000/- as compensation.
C) Complainant is allowed to realize an amount of Rs.2000/- as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 11th day of October, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Maya.T.S(Complainant)
PW2 - T.M.Binoy(Witness)
Ext.A1 - Commitment Form dated. 20/8/2017
Ext.A2series (A2(a) to A(c) - Receipt, Receipt, Tax invoice, Vehicle
Acknowledgment note.
Ext.A3 - Tax Invoices (Focus Automobiles Services Ltd)
Ext.A4 - Copy of Certificate of the Medical Board.
Ext.X1 - New Paper Malayala Manorama Daily
Ext.X1(a) - Advertisement
Evidence of the opposite parties:- Nil
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
