Tamil Nadu

South Chennai

181/2008

R.Jayakumari - Complainant(s)

Versus

Force Motors and another - Opp.Party(s)

M/s.Santi and L.Ramesh

09 Sep 2016

ORDER

                                                                        Date of Filing :  22.04.2008

                                                                        Date of Order :  09.09.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

           DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO. 181 /2008

FRIDAY THIS  9^th DAY OF SEPTEMBER  2016

 

R. Jayakumari,

W/o. Ravi Shankar,

No.126, D Block,

Wallance Garden,

Thousand Lights,

Chennai 600 006.                                             .. Complainant

                                      ..Vs..

 

1.  The Manager,

The Marketing Department,

Force Motors Ltd.,

A Firodia Enterprise,

(Formerly known as Bajaj Tempo Ltd.),

Mumbai Pune Road,

Akuri, Pune 411 035,

India.

 

 

2. The Manager,

Rep. by Mr.T.Tairupathi,

Khivraj Force,

Khivraj Mansion,

No.738, Anna Salai,

Chennai 600 002.                                              ..Opposite parties 

 

 

For the Complainant                  :   M/s.V. Shanthi & another   

For the opposite parties             :    M/s. S.Govindraman & another

 

        Complaint under section 12  of the Consumer Protection Act 1986.  The complaint is filed seeking direction against  the opposite parties to replace the vehicle and also to pay a sum of Rs.2,00,000/- towards mental agony and also to pay a sum of Rs.50,000/- as cost of the complaint. 

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II      

1.The case of the complainant is briefly as follows:

            The  complainant submit that she had purchased the light goods motor vehicle from the opposite party-2 on 29.9.2007 by paying an advance of Rs.43,000/- and taken delivery of the vehicle on 8.10.2007.   The complainant also submit that being a brand  new vehicle it gives as many problems.     Accordingly the complainant issued a legal notice to the 2^nd opposite party.   The  2^nd opposite party in their reply letter to the complainant’s legal notice stated that they had delivered the vehicle on 8.10.2007  itself and the reason for delay in registering the vehicle before the RTO is not known to them.   The complainant further submit that she paid a sum of Rs.46,000/- towards initial payment to 2^nd opposite party but the 2^nd opposite party have issued receipt for a sum of Rs.43,000/- and for  Rs.3000/- excess no receipt was given.  Even though the vehicle was delivered on 8.10.2007  the vehicle was sent  RTO for registration 12^th October 2007.    When the complainant sent the vehicle for service on 15.12.2007 the complainant shock and surprise was informed by the 2^nd opposite party’s staff that engine and self motor bore track were sent for repair and further it was mentioned in the Inventory sheet “starting trouble”.    The said vehicle started giving trouble every month and for each service the complainant had spent nearly Rs.500/-.   Sometimes the complainant paid the due amount with interest only for 5 to 10 days defaulted payment.     As such, the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.   As such the complainant sought for to replacement of the vehicle and also to pay a sum of Rs.2,00,000/- towards mental agony and also to pay a sum of Rs.50,000/- as cost of the complaint.     Hence the complaint.

Written version of 1^st opposite party is  briefly as follows:-

2.     The 1^st opposite party deny all the averments and allegations contained in the complaint, except those that are specifically admitted herein.    The 1^st opposite party submit that the said vehicle is a commercial vehicle meant for commercial use.   The complainant had never filed any document to substantiate that the alleged vehicle purchased was being used for earning livelihood.   Hence the complainant does not fall within the definition of the term “consumer” as per the provision of Sec.2 (1) (d) of the Consumer Protection Act 1986.    The 1^st opposite party further contended that the relationship between the opposite party-1 and opposite party-2 the dealer is on a Principal to Principal basis i.e. dealings between the company and the dealer is not that of Principal and Agent.  There is o vicarious liability of the opposite party-1 towards the acts of the opposite party-2.    Hence there is no privity of contract between the complainant and the 1^st opposite party.     it is pertinent to note that the dealer is separate entity who manage the sales and after sales services also the opposite party-1 has no control over any administrative or functional operation  and / or affairs of the opposite party-2 hence no vicarious liability.  As per clause-3 the warranty period for M4 vehicle is defined as 360 days or 36,000/- kms whichever occurs earlier from date of sale of the vehicles.   However certain problems may occur due to several other reasons beyond the control of manufacturer or dealer like nature, manner of usage, lack of proper maintenance of the vehicle, driving habits, road conditions, oil and fuel quality weight of  the load put on the vehicle etc.     Clause -14  “the warrant claim will not be entertained unless all services upto date of the claim have been performed on the vehicle by any one of our Authorized dealers or service-cum-part dealer’s workshop as the case may be”.    Clause-4 the extent of warranty is limited to replace only defective parts and not the entire engine / gear box / vehicles.  As such there is no deficiency in service on the part of the 1^st opposite party.    Based on this the learned counsel of the opposite party pleaded therefore this compliant is liable to be dismissed with cost.    

3.      Written version of 2^nd opposite party is  briefly as follows:-

 The 2^nd opposite party deny all the averments and allegations contained in the complaint, except those that are specifically admitted herein.   The 2^nd opposite party state that M/s. Shriram Finance company had agreed to finance for the vehicle.  Subsequently the vehicle was purchased by the complainant with the financial assistance as referred above and was taken delivery on 8.10.2007 at 335 kms, since the vehicle came by road from Hosur i.e. from the manufacturers point.  On 17.12.2007 the vehicle was given for first service after plying 3539 kms between 8.10.2007 to 17.12.2008.  It is submitted that the defects as informed by the customer will be noted down and accordingly the defect as stated by the complainant that there exists starting trouble was noted in the job card.    Since the cause for such defect was caused only in view of bad maintenance and hence the service centre conveyed the complainant has to bear the costs.   Accordingly the 2^nd opposite party had given a letter dated 14.1.2008 to M/s. M.R.F. Tyres Ltd and requested to replace the tyre under warranty.    In turn M/s. M.R.F. Tyres had agreed to replace the old type with a new one and asked the complainant to pay Rs.250/- towards service charges etc. and the complainant refused to pay the same.    The complainant had paid Rs.46,000/- towards initial payment is not correct.  The fact is that the complainant had paid only a sum of Rs.43,000/- to the 2^nd opposite party and in turn the receipt to that effect has been given to the complainant.  It is further submitted that the finance company received a sum of Rs.3,000/- towards documentation and other miscellaneous expenses and that the financier had agreed to adjust it are all unconnected to the 2^nd opposite party since they are not a party to the transaction between the complainant and the financer.    On the contrary, the vehicle is plying regularly for the commercial activities of the complainant and the testimony to this effect is the plying of 12354 kms between 8.10.2007 to 9.4.2008.    As such there is no deficiency in service on the part of the 1^st opposite party.    and this compliant is liable to be dismissed with cost.   

 

4.   Complainants have filed their Proof affidavit and Ex.A1 to Ex.A22 were marked on the side of the complainant.   Proof affidavit of Opposite parties filed and Ex.B1 to Ex.B7 were marked on the side of the  opposite parties. 

  

5.      The points that arise for consideration are as follows:-

1)   Whether there is any deficiency in service on the part of the opposite parties?

 

2. Whether the complainant is entitled to the  reliefs sought for?.

 

6.     POINTS 1 & 2 :

           Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A22  were marked on the side of the complainant.  Written version and proof affidavit filed by the opposite parties and Ex.B1 to Ex.B7 was marked on the side of opposite parties and also considered the both side arguments.

7.       Consumer Protection Act 1986 sec.2 (i) (d) 15, 17, 19, and 21 Automobile manufacturing defect complaint dismissed due to non compliance of proving the manufacturing defect and running the vehicle for more than 12,354  Kms.    The complainant had purchased the light goods motor vehicle from the opposite party-2 on 29.9.2007 by paying an advance of Rs.43,000/- (Ex.A2) and taken delivery of the vehicle on 8.10.2007 (Ex.A3).   The said vehicle was financed with Sri Ram Finance Union and it was duly insured on 10.10.2007  to 9.10.2008 and was duly registered with RTO Meenapakkam, Chennai-16 on 12.10.2007 with the Regd. No.TN28 AX 2892.     The complainant having availed finance from the said financer he has paid the installment of his loan from 21.11.2007 by equated monthly installment of Rs.7,240/- (Ex.A9 to Ex.A14).   The complainant left the vehicle with the opposite party-2 for first service on 15.12.2007 where the complaint is having starting trouble and noise in the motor to the opposite party  he had changed oil flitter and made water wash and charged Rs.350/- for changing the oil under Ex.A11.    The complainant left the vehicle with the opposite party-2 for second service  on 29.2.2008 with the complaint of gear noise and manufacturing of break and the opposite party-2 had changed the oil and assembly breather flag and oil flitter where they charged Rs.490.35 under Ex.A16 & Ex.A17.   Then the complainant had paid Rs.150/- to the Central wheeler for wheel aliment on 11.3.2008.    On 15.3.2008 the complainant paid Rs.245/- for changing the tyre  under Ex.A18 & Ex.A19. 

8.     The complainant made allegations on the opposite parties 1 & 2 that she had purchased the light goods vehicle for the value of Rs.2,40,000/- from the dealer and she was facing many problems in plying the vehicle and the complaint para -3 she had stated that because of her poverty she availed the loan to meet out her livelihood perusing by using the vehicle she can earn money.   The complaint para-4 she alleged that the opposite parties having collected Rs.46,000/- from her and gave receipt only for Rs.43,000/- wherein Rs.3000/- excess she had paid and whenever she goes for service for repair she has to shall out Rs.500/- from her pocket and her allegation is  that she had been provided with the defective vehicle and she prayed to replace the vehicle from the opposite party by demanding Rs.2,00,000/- as compensation for mental agony and Rs.50,000/- for cost of the complaint.

9.     The learned counsels for both the parties had submitted their written version and preliminary  objection raised by the opposite party-1 that the said vehicle is meant for commercial use and it will not attract u/s 2 (1) (d) of the Consumer Protection Act 1986 and further the opposite party-1 contended that before making delivery of the vehicle they made pre delivery inspection and handed over the vehicle in tact to the complainant.   Further the relationship between the opposite party-1 and opposite party -2 is on principal to principal, there is no vicariously  liability   and there is no privity of contact between the complainant and the opposite party-1 and there is no relationship of agency – principal with opposite party-2 by opposite party-1 hence there is no vicariously liability and opposite party-1 had contended any act or omission on the part of service  lies with the opposite party-2 and unless it is proved there is manufacturing defect then only the complainant can sue against opposite party-1.    The opposite party-1 further contended that the dealer is separate entity who manage the sales and after sales services also the opposite party-1 has no control over any administrative or functional operation, it is purely on the side of opposite party-2.  

10.    As regard the warranty of opposite party-1 submit under clause-3 “The warranty period for M4 vehicle is defined as 360 days or 36,000 kms whichever occurs earlier from the date of sale of the vehicles.   The allegations made by the complainant attract strictly proof of facts alleged about the problems.   However certain facts emerged due to several  other reasons beyond  the control of  any manufacturer or dealer, like nature,  manner of usage, lack of proper maintenance of the vehicle, driving habits, road conditions, oil and fuel quality, weight of the load put on the vehicle etc.   The alleged problem sighted by the complainant is due to bad maintenance of the vehicle where proper water has not been poured to the engine to make the engine  or any coolant used to minimize the heat and noise process.   Under clause No.14 of the warranty no claim will be entitled unless all services upto date of the claim have been performed on the vehicle by any of the authorized dealers or service-cum- part-dealer’s of the workshop as the case may be.  The opposite party-1  stated the dealer / the service provider had attended the free service and whenever the complainant is made to the opposite party-2 they have executed free of service except the consumables like oil and electrical parts which ever damages on usages.  Hence Under clause No.2 of the extent of warranty it is limited to repairs or replace the parts which are defective within a warranty period and proved it is a manufacturing defect and clause No.4 clearly mentioned the warranty is limited to replace only defective parts and not the entire engine / gear box / vehicle.    Under these circumstance opposite party -1 prayed to dismiss the complaint u/s 27 of Consumer Protection Act 1986.

11.    The opposite party-2 denied the allegation made by the complainant against him on taking delivery of the vehicle it is on the description on the complainant he availed loan from Sri Finance and the equated monthly installments agreed between the financier and the complainant doesn’t have any bearing on their part.   After sales service was rendered to the maximum effect when the complainant brought to the notice and it was rectified from time to time and the consumer had availed free services prescribed in the manual.   When the complainant had informed about the replacement of tyre under warranty these to have been arranged from the replace the tyre and MRF Type and labour charge the complainant refused to pay the same.  The next allegation filed against opposite party-2 regard excess payment collected which is the document charges for the financer who have made the finance on the said vehicle. 

12.    It is denied that the delayed registration was made by the opposite party-2 which is a frivolous one where it was left with the complainant and the registration after the delivery was made in time which proves from the date of delivery i.e. 8.10.2007 and the registration of vehicle on 12.10.2007.  It is false allegation put forth by the complainant from 8.10.2007 to 9.4.2008 the complainant drove the vehicle.  After the usage of 6 months  the complainant seeking replacement of vehicle even though after due care have been initiated by the opposite party-2 to substantiate the proof the learned counsel for the opposite party had submitted the proof of service rendered by them from Ex.B1 to Ex.B7. which is self explanatory.  

13.    Pursuant on the complaint, written version filed by the learned counsel for both the parties to the dispute and on hearing the arguments made by the learned counsels we are of the considered view that as per the Consumer Protection Act 1986 u/s 1 (d) 15, 17, 19 and 21 the Automobile manufacturing  defect has to be proved by submitting proper technical report but the complainant had not provided any technical expert opinion to prove his allegation there is a manufactuging defect.   There is already the National Commission  Judgment is cited  “2014 (4) CPR 40 (NC) against  Bachan Narayan Singh   ..Vs.. Eicher Plan & Marketing Head Quarter, Eicher Motors Limited under R.P. No.4856/2012 order decided on 16.9.2014  “there was break down in the vehicle  after 13 months of purchase after running 34,000 kms. and no manufacturing defect in the engine can be presumed  it is observed the complainant without proving any manufacturing defect without evidence the dismiss the complaint.   Admittedly the consumer had used the vehicle and not proved the defects in the said vehicle similarly in this petition is also the complainant had not proved the defects in the vehicle with the technical expertise.   

14.    The dealer / service provider had given the free service and the charges made to the complainant is for consumables which in normal case the customer has to back there is no privity of contract between the complainant and the opposite party-1 and the complaints were attended by the opposite parties from time to time and the conditions in the warranty clearly stipulates only defective parts alone can be changed without charge not the engine or the gear box or the vehicle. Hence the stand on opposite party stands to be genuine where by the complainant had substantiated his allegation against the opposite parties.  

15.    The complainant alleged that the delay of registration was made by the opposite party which found to be a false statement and the date of delivery is 8.10.2007 and the date of registration on 12.10.2007 as per the available records submitted to this forum.  On perusing all the documents we are of the considered view that the false and frivolous complaint will not be entertained by C.P Act 1986. 

 

16.    Therefore as discussed above, we are of the considered view that the allegation of deficiency of service attributed by the complainant against the opposite parties in the complaint are not proved, as such the complainant is not entitled for any relief sought for in the complaint against the opposite parties and the complaint is liable to be dismissed.  Considering the facts and circumstances, both the parties are to bear their own costs.   Accordingly the points 1 and 2 are answered.

        In the result the complaint is dismissed.  No cost.

               Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  9^th   day  of  September  2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-         -       - Copy of Performa Invoice.

Ex.A2- 29.9.2007  - Copy of initial payment – cheque receipt.

Ex.A3- 8.10.2007  - Copy of new vehicle Delivery note.

Ex.A4-         -       - Copy of warranty certificate.

Ex.A5-         -       - Copy of certificate cum policy schedule.

Ex.A6- 12.10.2007         - Copy of certificate of registration.

Ex.A7- 17.10.2007         - Copy of Tax card.

Ex.A8- 17.11.2007         - Copy of service charges.

Ex.A9- 21.11.2007         - Copy of H.P. Receipt.

Ex.A10- 15.12.2007 – Copy of Service receipt.

Ex.A11- 18.12.2007 – Copy of service receipt.

Ex.A12- 28.01.2008 -  Copy of H.P. receipt.

Ex.A13- 28.1.2008         -   Copy of Penal interest receipt.

Ex.A14- 20.2.2008         -   Copy of H.P. Receipt.

Ex.A15- 20.2.2008         -   Copy of H.P. receipt.

Ex.A16- 29.2.2008         -    Copy of Penal interest receipt.

Ex.A17- 29.2.2008  -   Copy of Inventory sheet.

Ex.A18- 11.3.2008         -    Copy of receipt for tyre alignment.

Ex.A19- 15.3.2008         -    Copy of Tyre purchased from MRF.

Ex.A20- 20.3.2008         -    Copy of Legal notice to the 2^nd opposite party.

Ex.A21- 26.3.2008         -    Copy of reply notice from 2^nd opposite party.

Ex.A22- 31.3.2008         -    Copy of notice sent to 1^st opposite party.           

 

Opposite parties’ Exhibits:- 

 

Ex.B1-  6.10.2007          - Copy of Chassis history

Ex.B2-  15.12.2007- Copy of Inventory sheet.

Ex.B3-  8.10.2007 - Copy of Job card. 

Ex.B4-  18.12.2007- Copy of Job card.

Ex.B5-  14.1.2008 - Copy of Job card.

Ex.B6-  29.2.2008 - Copy of Job card.

Ex.B7-  9.4.2008   - Copy of Job card.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.