Tamil Nadu

StateCommission

CC/118/2012

J. SYED SATHAKATHULLAH - Complainant(s)

Versus

FORCE MOTORS LTD., MANAGING DIRECTOR - Opp.Party(s)

K. DURAIKANNAN

30 Nov 2022

ORDER

 IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.R VENKATESAPERUMAL     … MEMBER

 

C.C. No.118 of 2012

 

                               Orders pronounced on:  30.11.2022

 

J.Syed Sathakathullah,

No.5/14, Panayathamman Kovil Street,

Redhills,

Chennai 600 052,

Tamil Nadu.                                         … Complainant

 

vs.

 

1.Force Motors Ltd., Mumbai,

rep. by its Managing Director,

Pune Road, Akurd, Pune 411 035,

Maharashtra.

 

2. MPC Force,

rep. by its Managing Director,

Authorized Dealer - PVD,

MPC Motors Pvt. Ltd.,

Showroom & Workshop: No.85,

Plot No.FB-4,

SIDCO's Industrial Complex,

Ambattur, Chennai 600 058.                                ... Opp. Parties.

 

             For Complainant      :  M/s.Durai Kannan

             For Opp. Party No.1 :  M/s.C.Tamizhamudhan

             For Opp. Party No.2 :  M/s.Venkatakrishnan

 

This Complaint came up for final hearing on 04.07.2022 and, after hearing the arguments of the counsels for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

 

             The complainant herein seeks this Commission to direct the Opposite Parties to pay to him-

         i) Rs.13,60,266/- that was paid by him at the time of purchase of the Car "Force" bearing   Registration   No.TN-18 K-0010 along with interest @ 14% p.a..; and

         ii) Rs.50 Lakh as compensation towards the loss and mental agony suffered by him, besides costs of the proceedings.

 

             2. In brief, the case of the complainant is as follows:-

             The complainant, who intended to purchase a car for his personal use, during market research, came across the model - Force one 6+D Car of the 1st OP and found that the 2nd OP is the only dealer of the said OP in Chennai City.   The complainant visited the 2nd OP's showroom, where the representatives explained to him the whole features of the car.  Convinced by the representations/assurances made by the 2nd OP, the complainant booked a Car on 28.03.2012 by making an initial payment for a sum of Rs.50,000/- through Cheque No.915218, drawn on IOB, Puzhal, Redhills.   Subsequently, on 21.04.2012, a sum of Rs.8,67,694/- and another sum of Rs.4,42,572/- were paid and the same was acknowledged by the 2nd OP. Of the above payments made, a sum of Rs.9 lakh was obtained by way of loan from the HDFC Bank, repayable as Equated Monthly Instalments @ Rs.30,000/- per month for 35 months, commencing from 07.05.2012.  On 03.05.2012, the complainant took delivery of the vehicle and at that time, the 2nd OP informed him that the Car User Manual, Service Record and Registration Certificate would be handed over in a week time.  While so, on 04.05.2012, the complainant, for the first time, took the car and he was on the way to his Office to attend the meetings scheduled for that day.  To his shock and surprise, while driving the vehicle, he was not able to change the gear. Due to failure of the gear box, the car stopped in the middle of the road, whereupon, the complainant had to tow it to the 2nd OP's Service Centre.  Consequently, he had to call off all his important meetings due to the break-down of the car. At the service station, he was informed that the service record of the car was not available and hence, they could fix the gear temporarily without issuance of any job card ie., off the record.  However, even thereafter, the gear shifting was not smooth.

             During the 1st service that fell due on 11.05.2012, the complainant clearly told the Service Station about the temporary solution made earlier and insisted to rectify the whole problem in the gear box by taking specific note thereof in the Job Card.  After servicing, the car was delivered on 12.05.2012 with an assurance by the Service Station that the gear issue has been resolved and that such problem would not arise in future.  For the request of the complainant to provide him with the Registration Certificate of the Vehicle, it was informed that the same is under process and it would be handed over within a week. 

             While so, to the shock and surprise of the complainant, within 4 days from the date of the first service, that was on 16.05.2012, while the complainant was driving the car near Poonamallee High Road, the vehicle suffered the same gear problem and stopped, whereupon, he immediately called the OP's Emergency Team who towed the vehicle to the 2nd OP Service Station, where job card was issued for the problem in the gear box.   The complainant was told that the problem could not be addressed immediately and requested for a day's time to fix the issue.  The complainant and his family members were really disappointed for having spent a huge sum to buy only a defective car. It became evident that the gear box in the car had manufacturing defects which the OP was trying to cover up.  Even after a week, there was no response from the service station about the status of the car and hence, the complainant made a visit to the service station where, he was told that the problem could not be rectified.  During subsequent days, whenever the complainant contacted the service station to find out the status, he was given only evasive replies and at one stage, he was informed that the gear system in the car could not be rectified in Chennai and the same was sent to the Manufacturing Unit at Pune for repair which process would take a month's time.  Subsequently, he could not get any proper reply from the OPs except some absurd responses to the queries.  The RC Book of the Car also has not been provided till date.   Added to the agony of the complainant, he continues to pay EMIs for the loan availed in respect of the Car that was barely used by him actually for about 4 days.  Hence, he issued a legal notice on 15.06.2012, calling upon the OPs to refund the sum of Rs.13,60,266/- paid by  him and a compensation of Rs.50 lakh within 10 days from the date of receipt of the notice, for which, the OPs sent a reply, denying the allegations and making strange averments without any basis therefor.    The complainant, who has to travel around the city every day to visit various projects under construction, could not carry on the normal activities and his business operations are completely crippled.  Hence, the present complaint, seeking for issuance of directions as aforementioned.

 

             3. The OPs have filed separate written versions, wherein, among other things, it is stated as follows:-

             The vehicle was taken delivery by the complainant on 03.05.2012 and the contradictory statement that he drove it for the first time on 04.05.2012 makes it clear that he had handled the vehicle improperly by applying wrong gears.  The vehicle brought for the first time free service only pursuant to a reminder to the complainant from the 2nd OP on 11.05.2012 and the vehicle was taken delivery by him on 12.05.2012.   It is true that the 2nd OP received a complaint on 16.05.2012 and immediately, the said OP brought the vehicle to their Workshop to find that the entire clutch plate was burnt and it is not the fault of the system of the vehicle.  This could have happened when the vehicle was driven without releasing the hand-brake or keeping the leg over the clutch.  However, the 2nd OP repaired the entire clutch plate free of cost though it was not covered by warranty. The vehicle was made ready on 18.05.2012, however, despite the reminders dated 25.05.2012 and 08.06.2012, the complainant did not come forward to take delivery of the vehicle but he issued a legal notice dated 15.06.2012 for which, the 2nd OP had duly replied on 10.07.2012.   The complainant is not entitled to any relief since there is no negligence or service deficiency on their part; thus, they pleaded for dismissal of the complaint.

            

             4. To substantiate the claim and counter-claim, the parties have filed their respective proof affidavits and, while the complainant has filed 10 documents as Exs.A1 to A10, on the side of the OPs, 7 documents have been marked as Exs.B1 to B7.

 

             5.  Heard the submissions of the counsels for the parties and perused the materials available on record.

            

             6. It is the primary submission of the OPs that the vehicle was used by the complainant for commercial purpose viz., to attend business meetings and to inspect the construction projects undertaken by him.  Thus, the purchase of the vehicle was for business purpose and hence, the complainant will not fall within the definition of 'consumer' as defined in the CP Act.   In this regard, we hasten to add that this contention of the OPs seems to be highly illogical for the reason that using a personal vehicle also to attend business meetings and for visiting the projects cannot be projected in a strait-jacketed manner as that of 'commercial purpose'.  When the complainant has specifically averred that the purchase of the vehicle was for his personal use and the brand new vehicle itself could not be subjected to utility except for few days due to the alleged major complaint in the gear box, the above contention without any basis or proof is liable to be repelled straight away.

             According to the OPs, after towing the vehicle to the Service Station on 16.05.2012, the vehicle was thoroughly checked and it was found that the problem was not due to any manufacturing defect, rather, it might be due to the improper driving by the complainant without release of the hand-brake or clutch over-riding, however, to maintain goodwill and cordial customer relationship, the clutch plate was repaired free of cost although it is not covered  under the warranty. Further, even after the complainant was informed that the vehicle was ready for delivery, as evident from Exs.B5 and B6, letters dated 25.05.2012 and 08.06.2012 respectively, the complainant never turned up to take the vehicle back.  Hence, no service deficiency can be alleged against the OPs.

             But, on a perusal of the entire records, we are not able to find any veracity in the statement of the OPs. First of all, when the vehicle, that was delivered on 03.05.2012, is said to have encountered a problem in the gear system due to alleged inherent manufacturing defect, that too, during the first ride by the complainant on 04.05.2012, it is his claim that he availed the services of the 2nd OP's Service Station, where, the issue was temporarily fixed on off-record basis, since the Service Coupon of the vehicle was not issued by then for necessary entries. Although a serious allegation of manufacturing defect is made, interestingly, the OPs have not met the same with all seriousness in the respective written versions except stating that it might be due to improper gear change. It is the case of the complainant that, at that time, he had no service coupons for making entries about the issue, since the same was not provided to him at the time of delivery of the vehicle and apart from that, the User's Manual and the Registration Certificate were also not issued to him.  In this regard, it is the stand of the 1st OP/Manufacturer that, except the RC Book, the issuance of which is under process with the RTO, both the Manual and the Service Coupon Book were already handed over to the 2nd OP at the time of delivery of the vehicle to the said OP. As stated by the 1st OP, if the Service Coupon was available with the 2nd OP and if the said OP had already handed it over to the complainant at the time of delivery of the vehicle, that would have been done under due acknowledgement for which records must be available with the OP concerned.  In such a situation, when the OPs, in the proof affidavit and in the course of arguments, now deny the incident dated 04.05.2012  which gives room for the allegation of manufacturing defect, and disown any temporary repair at the 2nd OP's Service Centre on that date, nothing prevented them from producing the proof to show that the service coupon of the vehicle was already handed over to the complainant and that, by withholding the service coupon, he has cooked up a story to allege manufacturing defect in the gear system of the vehicle. But, the OPs have not filed any documentary proof to show that either the Service Coupon or the User Manual was already handed over by them to the complainant. According to the OPs, only on 16.05.2012, they detected that the entire clutch plate was burnt and, if that is so, they could have, in all transparency, informed the complainant about the actuality and shared the conclusion arrived at by their technical team that it was not a manufacturing defect rather it was due to the faulty driving by the user contrary to the instructions given in the User Manual. As to on what basis, the OPs assessed the issue in between manufacturing defect and faulty handling to conclude improper driving to be the reason for the problem, is not known. Further, by way of User Manual, the manufacturer informs the user as to how the product is to be used safely and warns him of any potential malfunctioning of the product due to its misuse.  Thus, the user manual helps the user to be alert on misuse on the one hand and, on the other hand, it discharges the Manufacturer from legal liability in cases where misuse of the product by the user is proved. Here, the OPs have not even provided the User Manual and, in our considered opinion, non-supply of such important document at the time of delivery of the vehicle is a clear instance of service deficiency.    In other words, without establishing the crucial aspect that user manual and service coupon were provided to the complainant at the time of delivery of the vehicle, the OPs cannot have any good defence against the allegation of service deficiency in the given factual scenario.  One more thing is, although the OPs claimed that, by way of letters under Exs.B5 and B6, they called upon the complainant to take delivery of the vehicle, but, he did not turn up, the said letters cannot be given any credence, since no proof has been produced to show that those letters were received/acknowledged by the complainant, who emphatically denies receipt of any such letter from the OPs.  Interestingly, the subsequent letter/Ex.B6 in a plain sheet without letterhead/Logo of the Car Company does not make any reference to the previous letter/Ex.B5 that was under the proper letter-head.

               Be that as it may, in the absence of any single contrary material to plainly rule out the allegation of manufacturing defect, the factual aspects in this case clearly show that the brand new car in question faced a major problem in its gear system during the first driving itself and it led to the towing of the vehicle to the Service Station of the 2nd OP. The said problem although fixed temporarily was not resolved during the first servicing on 11.05.2012  and within a week, that was on 16.05.2012, the vehicle had to be towed once again, since it stopped in the midway at Poonamallee High Road.  As already adverted to by us, the OPs have not proved the supply of Service Coupons of the vehicle to the complainant at the time of delivery and further, they have also failed to file the technical data that must be available with them, based on which they arrived at the conclusion  that  the  problem  was  due  to faulty driving and not due to any inherent manufacturing defect.   If a newly purchased vehicle suffers major problem of faulty gear box during the very first ride after delivery, leaving the user to have only a temporary rectification at the service station for want of service coupon and if the same issue recurs even after the first service, it would only suggest a major inherent manufacturing defect which cannot be simply refuted by  taking a defence of  improper driving by the user, particularly in the absence of any solid technical report that led to such conclusion.   An individual will buy a new car only with a fond hope that it would be defect free for long usage and no one would bear to suffer the ordeal of keeping a brand new vehicle that gets repeatedly stopped in the middle of the road due to a major defect.  When the OPs have no basis to sustain the main defence of improper driving, they not only have a legal duty but also moral obligation either to refund the amount or to replace the defective piece with a new one, but they are avoiding such responsibility on some baseless defence.  Therefore, we are of the considered opinion that this is a fit case where the complainant is entitled to get refund of  the entire sum paid by him towards purchase of the car in question.

                     7. In the result, the complaint is allowed by directing the OPs to refund to the complainant the entire amount of Rs.13,60,266/- (Rupees thirteen lakh sixty thousand two hundred and sixty six only) that was paid by him towards purchase of  the car  in question and another sum of Rs.2,00,000/- (Rupees two lakh only) as compensation for the mental agony & loss suffered by the complainant due to the service deficiency committed by the OPs, besides Rs.25,000/- (Rupees twenty five thousand only) towards litigation expenses, within a period of two months from the date of receipt of a copy of this order and, in default, the aforesaid sum shall carry interest @ 9% p.a. from the date of the complaint till the date of actual payment.

                    

         Sd/-                                                                                                                 Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

•       Date            Description of Documents
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LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPs

 

•       Date            Description of Documents
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Sd/-                                                                                                                         Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT