Tamil Nadu

South Chennai

CC/258/2013

RMD Nayar - Complainant(s)

Versus

Ford India Ltd., - Opp.Party(s)

A.Prakash

09 May 2018

ORDER

                                                                        Date of Filing  : 06.08.2013

                                                                          Date of Order : 09.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

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

 

C.C. No.258 /2013

DATED THIS WEDNESDAY THE 09^TH DAY OF MAY 2018

                                 

Mr. RMD Nayar,

S/o. Late K. Raghavan Pillay,

Managing Director,

M/s. ESSCO FURNACES PRIVATE LIMITED,

T.S. No.63 A, SIDCO Industrial Estate,

Ekkaduthangal,

Chennai – 600 032.                                                .. Complainant.                                                     

 

                                            ..Versus..

 

1. The Managing Director,

M/s. Ford India Limited,

S.P. Kovil Post,

Chengalpattu – 603 204.

 

2. The Managing Director,

M/s. MPL Cars Pvt. Ltd.,

New No. 20, (Old No.31),

Thanikachalam Road,

T. Nagar,

Chennai – 600 017. 

 

3.The Manager,

M/s. MPL Cars Pvt. Ltd.,

Old No.15, New No.27,

Bharathidasan Salai,

Alwarpet,

Chennai – 600 018. 

 

4. The Manager,

M/s. MPL Cars Pvt. Ltd.,

Plot No.3, No.77/2 A, B-2,

200 Feet Road,

Kovilambakkam,

Chennai – 600 117.                                            ..  Opposite parties.

          

Counsel for complainant                      :  M/s. A. Prakash & others

Counsel for 1^st opposite party             :  M/s. R. Senthil Kumar & 

                                                                 others

Counsel for 2 to 4^th opposite parties  :   M/s. M.P. Mohandass &   

                                                                 another

 

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 seeking to pay a sum of Rs.2,90,325/- towards replacement of the engine and to pay a sum of Rs.5,00,000/- towards compensation for  mental agony, deficiency of service, travelling expenditure and business loss with cost of the complaint.

1.    The averments of the complaint in brief are as follows:

The complainant submits that he purchased a Ford FIESTSA car manufactured by the 1^st opposite party on 17.09.2011.  The complainant further submits that from the date of purchase, all services were carried out by 2 to 4^th opposite parties; the service providers.  Further the complainant submits that, right from the date of purchase, the oil warning lamp of the car is not functioning.    Even at the time of periodical services done by the 3^rd opposite party, it was not rectified.  Further the complainant submits that on 27.04.2013 at  about 12.00 A.M., the car bearing Registration No.TN 09 BK 9334 hit against a small stone; since there was no sign of any defect nor any warning lamp indication regarding loss of oil and taken the car to the house of the complainant and informed the 3^rd opposite party.  In turn, on the instruction of the 3^rd opposite party, the complainant sent his car by towing to the 4^th opposite party on payment.  After inspection, the 4^th opposite party informed that nearly Rs.13,000/- required for rectifying the mistake.  The complainant also contacted the insurance company for due approval.   On 07.05.2013, the 4^th opposite party again informed the complainant that the whole engine has to be replaced, for that, Rs.2,00,000/- required.  Further the complainant submits that, since the oil warning light was not functioning there is no indication of drain of oil during driving.     If the oil tank is of better quality steel, such thing of damage shall not be happened. Therefore the complainant issued legal notice dated:07.05.2013,  16.05.2013 & 25.05.2013 and received reply notices dated:10.07.2013 & 25.07.2013 respectively.   Since the opposite parties have not come forward to rectify the defects this complaint was filed.

2.      The brief averments in the written version filed by the 1^st opposite party is as follows:

The 1^st opposite party specifically deny each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The 1^st opposite party states that M/s. ESSCO Furnaces Private Limited purchased the car bearing Registration No.TN 09 BK 9334.   The complainant’s vehicle bearing Registration No.TN 09 BK 9334 stands in the name of M/s. ESSCO Furnaces Private Limited is a commercial entity registered under the Companies Act carrying out the business.  Hence under section 2 (1)(d), the complainant is not a “Consumer”.  The  1^st opposite party submits that the vehicle is used officially by the commercial concern having direct bearing on the profit and loss of the company.  The vehicle was purchased out of the company’s funds form a part of the assets of the company and all the expenses including maintenance are borne by the company.   Further the 1^st opposite party states that on 27.4.2013, after clocking 13265 kms the complainant towed the vehicle to the accident department of the 4^th opposite party with the complainant of external impact /accidental hit causing damage.  No previous complaint regarding the performance of the vehicle had been raised by the complainant.  The vehicle was checked by the service personal and found that the oil sump was damaged, caused leakage of oil at the time of reporting the vehicle. The complainant also admitted in paragraph No.3 of the complaint that, the oil sump got damaged due to stone hit.  The detailed estimate for repair was given on 08.05.2013 was agreed by the complainant and the vehicle got repaired and took delivery on 22.05.2013.  Therefore, there is neither deficiency in service nor unfair trade practice arise on the part of the 1^st opposite party.    Hence the complaint is liable to be dismissed.

2.     The brief averments in the written version filed by the 2 to 4^th  opposite parties is as follows:

The 2 to 4^th opposite parties specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.    The 2 to 4 opposite parties state that M/s. ESSCO Furnaces Private Limited purchased the car bearing Registration No.TN 09 BK 9334.  The vehicle was covered under the Warranty till 17.09.2014.    The 2 to 4^th opposite parties state that on 27.04.2013, when the vehicle was in motion hit against a small stone is very contradictory and imaginary statement by the complainant.   The nature of the damage of the vehicle was the Oil pan which is fitted underneath of the vehicle.  The complainant did not mention that how many kilometre he had driven the vehicle after the hit.  The complainant failed to notice the warning lamp at the time of driving the vehicle for a longer distance after hit against the stone.  By seeing the oil leak, the complainant contacted the service personal of the service centre and reported for repair the vehicle.   The vehicle was taken to Kovilambakkam Body Shop where the vehicle reported on 27.04.2013 for repair.  At the time of inspection by the service personal informed the initial estimate only for Oil Sump and Oil Filter.  On further investigation it was found that the engine got badly affected and got seized due to Oil starvation.  The revised estimate for approximate charge of Rs.2,00,000/- for replacement of the affected engine and after his approval only the engine replacement work was carried out by the 4^th opposite party.  The complainant’s allegation against the Steel Body of the engine is totally false.    At the time of service, the repair order was signed by the complainant’s representative Mr. Murugan on 04.04.2013.   The service personals are well trained and they follow strict adherence to the vehicle in the interest of their customers.  It is totally false that none of the service records handed over to him by the 3^rd opposite party.  After the service, the copy shall be handed over to him.  The opposite party’s service centre is totally different and it cannot be compared with any of the service centre as mentioned in the complaint.   At the time of occurrence, the complainant failed to notice the warning lamp and also driven the vehicle for a longer distance after hit the stone.   There is no obligation to repay the amount paid by the complainant either on facts or on warranty.    Therefore, there is no deficiency in service on the part of the 2 to 4^th opposite parties.   Hence the complaint is liable to be dismissed.

4.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A31 are marked.  Proof affidavit of the 1^st opposite party filed and documents from Ex.B1 to Ex.B13 are filed and marked on the side of the 1^st opposite party.  Proof affidavit of the 2 to 4^th opposite parties filed and documents from Ex.B14 to Ex.B24 are filed and marked on the side of the 2 to 4^th opposite parties.

5.     The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.2,90,325/- towards replacement of the engine as prayed for?
2. Whether the complainant entitled to a sum of Rs.5,00,000/- towards compensation for  mental agony, deficiency of service,  travelling expenditure and business loss as prayed for with cost?

6.     On point:-

3. Heard both sides. Perused the records namely the complaint, written version, proof affidavits, documents etc.  Admittedly the complainant purchased a Ford FIESTSA car manufactured by the 1^st opposite party on 17.09.2011 as per Ex.A1 & Ex.A2.  The complainant further contended that from the date of purchase, all services were carried out by 2 to 4^th opposite parties; the service providers is not denied.  Further the contention of the complainant is that, right from the date of purchase, the oil warning lamp of the car is not functioning.  Even at time of periodical services done by the 3^rd opposite party it was not rectified.  Further the contention of the complainant is that on 27.04.2013 at  about 12.00 A.M., the car bearing Registration No.TN 09 BK 9334 hit against a small stone; since there was no sign of any defect nor any warning lamp indication regarding loss of oil and taken the car to the house of the complainant and informed the 3^rd opposite party.  In turn, on the instruction of the 3^rd opposite party, the complainant sent his car by towing to the 4^th opposite party on payment.  After inspection, the 4^th opposite party informed that nearly Rs.13,000/- required for rectifying the mistake.  The complainant also contacted the insurance company for due approval.   On 07.05.2013, the 4^th opposite party again informed the complainant that the whole engine has to be replaced, for that, Rs.2,00,000/- required as per Ex.A16. 

7.     Further the learned Counsel for the complainant contended that, since the oil warning light was not functioning there is no indication of drain of oil during driving.  Equally, the steel body of the oil tank is of low quality got punctured which amounts to the manufacturing defect.  The complainant submitted Ex.A28 to Ex.A30, Expert opinion, but the complainant has not taken any steps to send the vehicle to authenticated expert like MIT to find out the quality of oil tank.  If the oil tank is of better quality steel, such thing of damage shall not be happened.  The complainant is claiming a sum of Rs.2,90,325/- towards replacement of the engine and a sum of Rs.5,00,000/- towards compensation for  mental agony, deficiency of service,  travelling expenditure and business loss etc.  

8.     The learned Counsel for the opposite parties contended that admittedly M/s. ESSCO Furnaces Private Limited purchased the car bearing Registration No.TN 09 BK 9334.   Ex.A2 to Ex.A7 and Ex.A9 to Ex.A13 shows the vehicle bearing Registration No.TN 09 BK 9334 stands in the name of M/s. ESSCO Furnaces Private Limited which is a commercial entity registered under the Companies Act carrying out the business.  Hence under section 2 (1)(d), the complainant is not a “Consumer”.  The learned Counsel for the opposite party cited the decision reported in

2014 SCC Online NCDRC 868

National Consumer Disputes Redressal Commission,

New Delhi

M/s. Shivom Projects Private Limited through its Director

•  

Toyota Kirloskar Motor Pvt. Ltd.through its Managing Director & others

 

Held that “For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed  by him exclusively for the purposes of earning his livelihood by means of self-employment;

9.     Further the contention of the opposite parties is that the vehicle is used officially by the commercial concern having direct bearing on the profit and loss of the company.  The vehicle was purchased out of the company’s funds form a part of the assets of the company and all the expenses including maintenance are borne by the company.   Further the learned Counsel for the opposite parties contended that on 27.4.2013, after clocking 13265 kms the complainant towed the vehicle to the accident department of 4^th opposite party with the complainant of external impact /accidental hit causing damage.  No previous complaint regarding the performance of the vehicle had been raised by the complainant.  The vehicle was checked by the service personal and found that the oil sump was damaged caused leakage of oil at the time of reporting the vehicle. Ex.B6, photographs evidenced the damage of crack in the oil sump.  The complainant also admitted in paragraph No.3 of the complaint that the oil sump got damaged due to stone hit.  The detailed estimate for repair was given on 08.05.2013 was agreed by the complainant and the vehicle got repaired and took delivery on 22.05.2013 as per Ex.A17, receipt.    There is neither deficiency in service nor unfair trade practice arise.  The learned  Counsel cited the decision reported in

(2006) 3 CPR 35

Ford India Ltd.

-Versus-

Raj Deepak Rastogi

Held that “There is also no dispute on the point that third free service was due and the defect in engine or on the head of cylinder was found earlier when the Car in question had run only 8606 km and this fact itself goes to show that engine of the Car in question was Defective one, otherwise in normal course defects as mentioned above would not have occurred.   Had the above mentioned trouble in the engine would have occurred after third free service, the position would have been different one, but since it had occurred earlier to that, therefore, it would  amount to deficiency in service on the part of the manufacturer – appellant.

Thus, the findings of the learned District Forum to the effect that decarbonisation of engine of the Car in question was done by the respondent no.2 and that there was manufacturing defect in the engine of the Car in question cannot be said to be erroneous or perverse one and rather, they appear to be based on correct appreciation of entire material available on record including two reports one by Junior Instructor (Motor Mechanic), ITI, Jaipur and other by Bajaj Motors, Jaipur.  The approach of the learned District Forum does not appear to be manifestly erroneous one”.

Considering the facts and circumstances of the case this Forum is of the considered view that, the complainant has not proved any deficiency in service on the part of the opposite parties.  Hence the complaint has to be dismissed. 

In the result, this complaint is dismissed.  No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 09^th day of May 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	27.07.2008	Copy of Invoice and payment receipt of Capital Honda
Ex.A2	17.09.2011	Copy of Invoice
Ex.A3	17.09.2011	Copy of Contract Certificate
Ex.A4	17.09.2011	Copy of Motor Vehicle cover note (Insurance
Ex.A5	19.09.2011	Copy of Invoice (Registration)
Ex.A6	19.09.2011	Copy of Invoice (Number Plate)
Ex.A7	19.09.2011	Copy of R.C. Book
Ex.A8		Copy of Driving Licence
Ex.A9	16.12.2011	Copy of Service Invoice (2 Nos.)
Ex.A10	17.09.2012	Copy of Insurance Policy
Ex.A11	06.10.2012	Copy of Service Invoice (2 Nos.)
Ex.A12	03.04.2013	Copy of Vehicle Report Card
Ex.A13	04.04.2013	Copy of Service Invoice (2 Nos.)
Ex.A14	27.04.2013	Copy of repair Order
Ex.A15	27.04.2013	Copy of Insurance Claim request letter
Ex.A16	07.05.2013	Copy of notice to the 1st opposite party
Ex.A17	08.05.2013	Copy of cash  receipt for advance
Ex.A18	16.05.2013	Copy of notice to the 1st opposite party
Ex.A19	22.05.2013	Copy of E-mail from the 1st Opposite party’s customer relation
Ex.A20	23.05.2013	Copy of E-mail to the 1st opposite party’s customer relation
Ex.A21	25.05.2013	Copy of notice to the 1st opposite party
Ex.A22	03.05.2013 to 22.06.2013	Copy of vouchers for travelling expenses
Ex.A23	28.05.2013	Copy of cash Memo and vehicle Inspection Report of ABT Maruthi
Ex.A24	22.06.2013	Copy of Cash receipt
Ex.A25	28.06.2013	Copy of legal notice to the opposite parties with acknowledgement cards
Ex.A26	10.07.2013	Copy of reply notice from the 2nd opposite party sent on 22.07.2013
Ex.A27	25.07.2013	Copy of reply notice from the 1st opposite party
Ex.A28	04.04.2008	Copy of letter and failure Analysis Report of M/s. Asian Peroxide Limited, Chennai
Ex.A29	22.08.2009	Copy of letter received from M/s. Sanmar Shipping Limited, Chennai
Ex.A30	15.12.2009	Letter received from M/s. Gati, Coast to Coast Chennai with Section Drawing of Pedastal
Ex.A31	09.09.2011	Copy of Minutes of Board Meeting

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:  

Ex.B1		Copy of warranty terms and conditions of the vehicle
Ex.B2		Copy of the vehicle repair history of the vehicle maintained by the opposite parties 2 to 4
Ex.B3	03.04.2013	Copy of the repair order, vehicle report card and satisfaction note signed by the complainant
Ex.B4	27.04.2013	Copy of repair order issued by the 4th opposite party
Ex.B5	30.04.2013	Copy of the repair estimate dated:30.04.2013 & 08.05.2013 evidencing under body damage sustained in the subject vehicle
Ex.B6	06.05.2013	Copy of the photographs taken by the 4th opposite party evidencing under body damage sustained in the subject vehicle
Ex.B7		Copy of receipts evidencing advance payment made by the complainant to the 4rth opposite party
Ex.B8	22.05.2013	Copy of email issued by the 1st opposite party to the complainant
Ex.B9	27.05.2013	Copy of email issued by the 1st opposite party to the complainant
Ex.B10	22.06.2013	Copy of bill raised upon the complainant to the 4th opposite party
Ex.B11		Copy of receipts evidencing advance payment made by the complainant to the 4th opposite party
Ex.B12	25.07.2013	Copy of reply notice along with postal receipts and acknowledgement cards
Ex.B13	12.09.2013	Copy of the Board Resolution authorizing Mr. Tapos Kumar Moitra

 

 

2 to 4^th  OPPOSITE  PARTIES SIDE DOCUMENTS:  

Ex.B14	19.09.2011	Copy of Certificate of Registration
Ex.B15	06.10.2012	Copy of repair order of the 3rd opposite party
Ex.B16	04.04.2013	Copy of repair order of the 3rd opposite party
Ex.B17	27.04.2013	Copy of letter to SBI Insurance Company by the complainant
Ex.B18	29.04.2013	Copy of repair order of the 4th opposite party
Ex.B19	07.05.2013	Copy of letter sent to the 1st opposite party by the complainant
Ex.B20	16.05.2013	Copy of letter sent to the 1st opposite party by the complainant
Ex.B21	22.05.2013	Copy of reply by the 1st opposite party to the complainant
Ex.B22	22.06.2013	Copy of repair order billing of the 4th opposite party and Vehicle Gate Pass
Ex.B23	28.06.2013	Copy of legal notice sent by the complainant
Ex.B24	10.07.2013	Copy of reply by the 2 to 4th opposite parties

 

 

MEMBER –I                                                                      PRESIDENT