IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 27^th  day of April, 2023

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 200/2019 (Filed on 18-11-2019)

Petitioner                                 :         Rajeev R.

                                                          Sreyas,

                                                          Thalayazham P.O.

                                                          Vaikom - 686607

                                                                    Vs.   

Opposite party                        :  (1)  Manager,

                                                          EVM Automotive India Pvt. Ltd.

                                                          EVM Nissan, M.C. Road,

                                                          Thellakom P.O.  Kottayam

                                                          Pin – 686016

                                                   (2)  Nissan Motor India Pvt. Ltd.

                                                          5^th Floor, ASV Ramana Towers,

                                                          52, Venkatnarayana Road,

                                                          T. Nagar, Chennai – 600017

                                                          Tamilnadu.                    

                                                          (Adv. Sreenivas V. Pai)          

Additional opposite party                 :  (3) M/s. Nissan Renault Financial Services

(Impleaded as per IA 64/20)             India Ltd.  VBC Salitax, 5^th Floor,

47&49, Basulla Road, T. Nagar,

Chennai-60017    

Additional opposite party                :     (4) M/s. Kotak Mahindra Bank Ltd.

(Impleaded as per IA 48/20)             27 BKC, C27, G Block,

                                                          Bandra Kurla Complex,

                                                          Bandra (e) , Mumabi – 400051.

O  R  D  E  R

Sri. Manulal V.S. President

          The case of the complainant is as follows.

          The complainant had purchased a Datsan Ready Go (Nissan) vehicle bearing Reg. No.KL-36-G-7767 from the 1^st opposite party on instalment basis.  The 2^nd opposite party, who is the manufacturer of the said vehicle had offered 2 year warranty for the said vehicle.  From the time of purchase, the vehicle had started to show same complaints with the break system of the vehicle. Though the complainant informed this to the opposite party and repaired the vehicle on several times, the opposite party failed to resolve the defect of the break system.  Lastly from 02-10-2019 to 07-11-2019 the 1^st opposite party had retained the said vehicle to cure the defective break system.  But they returned the vehicle stating that the vehicle had the perfect breaking system and the 1^st opposite party had not done anything more with the vehicle. 

          It is averred in the complaint that due to the defective breaking system of the vehicle, the vehicle had to be met with accident on several times and the complainant had a narrow escape from the accident.  According to the complainant, the vehicle slipped away from the intended location in the event of an emergency breaking.  The complainant had informed this to the opposite parties on several times over phone and through e-mails.  The complainant had stopped the payment of EMIs to the Nissan Renault Financing Pvt. Ltd.  It is alleged in the complaint that due to the defective breaking system, the vehicle became useless.  According to the complainant, the above said act of the opposite parties amounts to deficiency in service and he had suffered much loss due to the said act of the opposite parties.  Hence this complaint is filed by the complainant praying for an order to exonerate him from all the liabilities with respect to the vehicle by taking the car back and to pay a compensation of Rs.1,75,000/- along with cost of Rs.5,000/-

          Upon notice, opposite parties 1^st and 2^nd appeared before this Commission and filed separate versions.

          The 3^rd opposite party is impleaded vide order in IA 64/2020 dtd.02-11-21 and 4^th opposite party is impleaded in party array vide order in IA 48/2020                          dtd.27-03-2022.  Though the notices were duly served to the 3^rd and 4^th opposite parties, they neither care to appear before the Commission nor to file version.  Hence the 3^rd and 4^th opposite parties were declared as exparte.

          The first opposite party filed version contenting as follows.

          The first opposite party admits that the complainant had purchased a Datson Ready Go vehicle having Reg. No.KL-36-G-7767 from the 1^st opposite party on 02-11-2018.  The said vehicle is in perfect working condition.                               On 25-04-2019, the complainant informed the 1^st opposite party that the break of the vehicle is defective and not working properly.  After a thorough diagnosis, the 1^st opposite party informed the complainant that the break of the vehicle is in a perfect working condition and has no defect as claimed.  The 1^st opposite party informed the complainant for a number of times that the break of the vehicle has no defect and is in a perfect condition.  On 27-06-19, the complainant informed the 1^st opposite party to take the vehicle to the service center on 01-10-2019 itself the 1^st opposite party once again informed the complainant that there is no defect either on break of the vehicle or any parts of the vehicle and also informed to take the vehicle back.  But the complainant was not ready to take back the vehicle without any reason.  The 1^st opposite party informed the complainant and kept the vehicle at the service center knowing that the break of the vehicle is in a perfect working condition.  The 1^st opposite party is not at all responsible for any due regarding that the complainant has stopped the EMI.  It is further averred in the version that the complainant itself filed by the complainant for making some unfair reasons to get rid of himself from paying the EMI amount.  There is no deficiency in service or unfair trade practice from the side of the 1^st opposite party.

          Version of the 2^nd opposite party is as follows.

          The vehicle manufactured by the 2^nd opposite party pass through stringent quality checks and road trials before the actual commercial production starts.                                      The complainant had purchased a Datson Ready Go vehicle from the 1^st opposite party on instalment basis.  The 2^nd opposite party had offered 2 years manufacturing warranty for the said vehicle. The 1^st opposite party is responsible for sale and service of the vehicle purchased by the complainant as per the dealership agreement entered between the 1^st and 2^nd opposite parties.                                 The complainant has vaguely alleged the deficiency in service and unfair trade practice on the part of the 2^nd opposite party without any substantial evidence.  The complaint is made only with respect to service related issues and not with the manufacturing defects.  The complaints are made only between the complainant and 1^st opposite party.  The 2^nd opposite party has been wrongly made as a party to the case and is neither a necessary party nor a proper party in this case.  There is no deficiency in service or unfair trade practice from the part of 2^nd opposite party.

          Complainant filed proof affidavit in lieu of chief examination and Ext.A1 to A4 were marked from the side of complainant.  Pratheesh Prakash, who is the Manager of the 1^st opposite party filed proof affidavit in lieu of chief examination for and behalf of the 1^st opposite party. Vijayakumar, who is the authorized respondent of the 2^nd opposite party filed proof affidavit in lieu of chief examination and marked Ext.B1 and B2 from the side of the 2^nd opposite party.  No documentary evidence from the side of the 1^st opposite party.

          On evaluation of complaint, version and evidence on record, we would like to consider the following points.

1. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?
2. If so, what are the reliefs and costs?

For the sake of convenience, we would like to consider the following points.

Point No.1 and 2

          There is no dispute on the fact that the complainant has purchased a Datson Ready Go vehicle bearing Reg. No. KL 36 G 7767 from the 1^st opposite party on 02-11-2018.  The 2^nd opposite party is the manufacturer of the said vehicle.  Ext.A4 is the certificate of registration issued by the Motor Vehicle Registering Authority.  Ongoing through Ext.A1, it is evident that the complainant had purchased the said vehicle by a hire purchase agreement with the Nissan Renault Financing Pvt. Ltd. The specific case of the complainant is that the break system of the vehicle is a defective one from the day which was purchased.  Though the complainant informed several times to the opposite parties and the 1^st opposite party had repaired the vehicle on several time, they failed to rectify the defect of the breaking system of the said vehicle.  The 1^st opposite party resisted the complaint stating that the breaking system of the vehicle is in a perfect condition and there is no defects on any parts of the said vehicle.  In order to prove his case, the complainant had filed an inter locutory application to inspect the vehicle by an Expert.  Accordingly this Commission appointed Mr. Issac Thomas, who is the Motor Vehicle Inspector, Sub Regional Transport Office, Pala as the Expert to ascertain and report the break system of the said vehicle.  The Expert Commissioner filed Ext.C1 report before this Commission after the inspection.  In Ext.C1 it is reported by the Expert Commissioner that he had inspected the vehicle on  2-10-2022 in the presence of the complainant and the representative of the 1^st opposite party.  It is further reported by the Expert Commissioner that he had driven the vehicle at the speed of 30 km per hour and found that the stopping distance of the vehicle is  10 mtr.  It is further reported by the Expert Commissioner in C1 report that when he had driven the vehicle about 7 kms and found that the break pedal of the said vehicle is working properly and the vehicle had stopped with 9.10 mts at a speed of 30 km per hr.  He categorically reported that as per CMR Rule 96(8) the stopping distance is 13 meter while the vehicle was at a speed of 30 km per hour and the Expert Commission opined that the vehicle had sufficient breaking efficiency.  Though the complainant filed objection to the commission report he had not adduced any evidence rebut the finding of the expert commissioner.  Ext.A1 is the service history of the vehicle.  Ongoing through Ext.A1 series, we can see that the complainant had not raised any complaint regarding the breaking system of the vehicle while the said vehicle was entrusted for mandatory service.  In the absence of cogent evidence, we cannot accept the case of the complainant that the vehicle has defective breaking system.  On the evaluation of evidence, we are of the opinion that complainant has failed to prove any deficiency in service or unfair trade practice on the part of the opposite parties.  Hence we are of the opinion that the complaint is liable to be dismissed.  Hence complaint is dismissed.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 27^th  day of  April, 2023

Sri. Manulal V.S. PresidentSd/-

Smt. Bindhu R.  Member                Sd/-            

Sri. K.M. Anto, Member                  Sd/-  

Appendix

Exhibits marked from the side of complainant

A1 series – Copy of service history of vehicle (4 nos.)

A2 series – Copy of e-mail communication (8nos.)

A3 – Copy of receipt dtd.07-11-19 issued by United India Insurance Co. Ltd..

A3(a) – GST invoice dtd.31-10-18 issued by 1^st opposite party

A4- Copy of certification of registration

Exhibits marked from the side of opposite party

B1 – Copy of dealership agreement

B2 – Copy of vehicle history

Commission Report

C1- Commission report filed by Sri. Issac Thomas dtd.12-10-22

                                                                                                By Order

                                                                                                     Sd/-

                                                                                              Assistant Registrar