Tamil Nadu

StateCommission

CC/267/2017

R.Vidhyaharan - Complainant(s)

Versus

Forza italia & 2 ors - Opp.Party(s)

K.M.Anand-complt

30 Jan 2023

ORDER

                                                             Date of filing : 27.10.2017                                                                                                                                                                                                                                                                      IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:  Hon’ble THIRU. JUSTICE R. SUBBIAH  : PRESIDENT

                             Thiru R  VENKATESAPERUMAL : MEMBER

 

 

C.C.No.267 of 2017

Monday, the 30^th day of January 2023

 

R. Vidhyadharan

No.3 Mosque Street

Vinoba Nagar

East Tambaram

Chennai – 600 059.                                              .. Complainant

                                            

                                             - Vs –

1.  Forza Italia

     Unit of ARASPVPV Motori Pvt Ltd.,

     Rep. by its Manager

     58A, TPK Road

     Madurai – 625 004.

 

2.  RAMKAY FIAT CRM Services

     Rep. by its Manager

     Perungudi

     Chennai – 600 096.

 

3.  FCA India Automobiles Pvt Ltd.

     Rep. by its Managing Director

     Benefice Building, 2^nd Floor

     Mathuradas Mill Compound

     Lower Parel,

     Mumbai- 400013.                                 .. Opposite Parties  

Counsel for the Complainant    :  M/s. K.M. Anand

Counsel for the 1^st OP               :  Ex-parte

Counsel for the 2^nd OP             :  M/s.R. Veeraraghavan

Counsel for the 3^rd OP             :  M/s.Shivakumar & Suresh

 

This complaint came before us for final hearing on 01.08.2022 and on hearing the arguments of the counsel for the parties and on perusing the material records, this Commission made the following:-

O R D E R

    

 R.SUBBIAH J., PRESIDENT

       This complaint has been filed by the Complainant under Sections 17 of the Consumer Protection Act, 1986 praying for the following directions to the opposite parties:

1. To pay a sum of Rs.23,52,357/- plus 18% interest from the date of filing of this complaint; and
2. To pay a sum of Rs.50,000/- towards litigation expenses.

 

     2.     In brief, the case of the complainant as projected in the Complaint is as follows: 

     The complainant is the owner of the vehicle TN 10 Y 1915 Fiat PUNTO, Engine No.34672, VIN No.MCA11835507004842HPZ.  He bought the said vehicle from one Mr.Ranjith, during November 2016.  From then, the complainant has been using the vehicle with utmost care.  On 11^th February 2017, when the complainant proceeded to Madurai in the said car, he faced some technical problem in the car, which is not known to the complainant. Hence, he approached the 1^st opposite party for repair.  The 1^st opposite party asked the complainant to deposit a sum of Rs.20,000/-.  After 2 days, the service in-charge called the complainant and informed him that the approximate cost of repair, including the cost of timing chain and other services to the vehicle, would come around Rs.1,20,000/-.  The complainant requested the 1^st opposite party to do the needful.  But the complainant was not aware of the issue with regard to timing chain, engine overhauling etc.  The service engineer who was in-charge of rectifying the defect did not bother to explain the issue properly to the complainant.  On 07.03.2017 the car was delivered to the complainant and he paid a sum of Rs.55,487/- towards repairing charges.  He paid the said amount with the belief that all the necessary defects in the car have been rectified by the 1^st opposite party.  Within 2 days therefrom, the complainant faced another problem with the vehicle.  When it was enquired with a known mechanic, the complainant was informed that the diesel pump valve was broken.  Hence, the issue was reported to FIAT services through e-mail on 03.04.2017, for which there was immediate response from the 1^st opposite party.  But, thereafter there was no response from the 1^st opposite party.  By July end, again the car got into repair and on enquiry with local mechanic it was found that the timing chain had again broken.  The complainant understood that the mechanic of the 1^st opposite party, who had dealt with the problems in Madurai has not attended the defects properly.  Therefore, the complainant has no other option but to hand over the vehicle to the 2^nd opposite party for repair and service.  The previous history was also explained to the 2^nd opposite party, for which the 2^nd opposite party assured to look into the same and rectify the defects.  But, the service of the 2^nd opposite party was also not satisfactory and hence the complainant sent an email to the 3^rd opposite party on 01.08.2017.  On the same day, the 3^rd opposite party referred an employee of the 2^nd opposite party to take care of the matter but there was no response either from 2^nd opposite party or the 3^rd opposite party, thereafter.  Hence, again on 02.08.2017, the complainant sent another email to the 3^rd opposite party, for which it was replied that they would take up the matter with the concerned team and will contact the complainant shortly.  But again, there was no response.  On 12.08.2017, the 2^nd opposite party sent an email along with an estimate in annexure, stating that the same problem which the complainant faced earlier exists and sought for approval to proceed over the repair.  The complainant was shocked, when he found that the same problem, which prevailed earlier had recurred again.  Hence, the complainant sent a demand notice to all the opposite parties on 29.08.2017 claiming a sum of Rs.23,52,357/- as compensation for the physical and mental stress, for which there was no response.  Hence, he has come forward with the present complaint.     

 

     3. Since the 1^st opposite party did not appear before this Commission, they were set ex-parte. 

 

     4.  Resisting the complaint, the 2^nd opposite party has filed a version stating that they are the Authorised Dealer of FIAT brand of automotive cars manufactured by the 3^rd opposite party.  But they are not the dealer who sold the car to the complainant.  Furthermore, the complainant is not the first owner of the FIAT Punto Diesel car bearing Regn. No.TN 10 Y 1915.  The complainant’s car was registered by the Assistant Registering Authority, Chennai (South-West) Chennai- 92 on 03.11.2009, about 8 years prior to the filing of the complaint.  The said car was originally registered in the name of one Ms.Vijayaruba and then transferred to another person namely Mr.Ranjith and thereafter transferred to the name of the complainant with effect from 06.12.2016.  The complainant is the 3^rd owner of the car.  Therefore, there is no privity of contract between the 2^nd opposite party and the complainant.  They have not received any money from the complainant.  In fact the complainant had brought the car by towing to the 2^nd opposite party workshop, on 29.07.2017 for repairing.  On that date, the said car’s odometer reading was 1,28,951 kms and was well out of manufacturer’s warranty.  The complainant brought his car in a towing condition to the 2^nd opposite party, after doing the last servicing of his car with the 1^st opposite party at Madurai.  It appears, the complainant had taken his car to the 1^st opposite party in February 2017 with a complaint of  ‘engine not starting’.  When the odometer reading was  1,08,881 kms.  On 29.07.2017, when the complainant brought the car to the 2^nd opposite party by towing, it was reported that the ‘vehicle not starting’.  In fact, the complainant was expecting free servicing, including parts and labour, from the 2^nd opposite party, on some perceived wrong notion, eventhough his car was well out of warranty.  One Thilak Kumar, a representative of the complainant was corresponding with the manufacturer and with the 2^nd opposite party.  The legal notice sent by the complainant to all the opposite parties claiming fanciful compensation of Rs.23,52,357/- is baseless.  The 2^nd opposite party sent a reply notice dated 03.09.2017 setting forth correct facts and denying the liability.  The complainant was expecting and insisting for free servicing and repairing of his old car at the workshop of the 2^nd opposite party at a huge loss for them, when there was no obligation for the 2^nd opposite party to give such free servicing.  Hence, sought for dismissal of the complaint.

 

     5.  The 3^rd opposite party has also filed a version stating that they are a private limited company.  The complaint filed by the complainant is not maintainable against the 3^rd opposite party in as much as FCA India Automobiles Private Limited sells cars with manufacturer’s warranty to its Authorised dealers under principal to principal relationship, on whole sale basis, after pre-delivery inspection duly carried out by the Dealer upon receipt of the vehicle at Dealer’s stockyard or showroom as the case may be, as per the standard practice.  Once the cars are sold by the 3^rd opposite party to its authorised dealers, its contractual obligations are limited to the reimbursement of parts under warranty as per Owner’s Manual/ Warranty terms as provided to the complainant with the delivery of subject vehicle.  As per the said manual and terms, in case of any problem, customers can approach the respective dealers for any service or warranty requirements.  Furthermore, the subject vehicle comes with a standard warranty of two years or 80,000 kms (whichever occur earlier).  The vehicle was sold by Concorde Motors on 31.10.2009 and was under basic warranty till 30.10.2011 and the warranty was extended till 01.01.2014 or 1,50,000 kms.  The complainant is the 3^rd owner of the vehicle.  On 06.02.2017, the complainant for the first time reported for the break down issue, to the 1^st opposite party. The Road Side Assistance (RSA) coverage is provided for 3 years from the date of sale and since the vehicle was reported to the authorised workshop in July 2017, the complainant was suggested for local towing vendor on paid basis.  Hence, the vehicle was towed by a local Road Side Assistance (RSA), on cost basis.  Post inspection an approximate estimate of Rs.1,20,146/- and the details of the repair work to be carried out in the vehicle was informed to the complainant.  The complainant requested the 1^st opposite party to make the car in a roadworthy condition, excluding engine overhauling.  Based on the approval given by the complainant, the work was carried out.  The vehicle has not been maintained as per company recommendations in between and had skipped the scheduled maintenance, which is recommended every 15000 kms or 1 year from last service, whichever occurs earlier.  Therefore, the oil service has been missed, due to which the oil was found to be in a slugged condition.  Due to the negligence of the complainant in proper maintenance of the car as per the company recommendations, the vehicle had suffered damages.  The repair work to be done was not done for a long time and the complainant was well aware of the pending service and that it would result in mechanical problems in the vehicle.  Similarly, when the complainant reported his grievance to the 3^rd opposite party, they had extended all possible support to the complainant.  The 3^rd opposite party do not deal with the customers directly or indirectly or provides any after sales service to the customers.  The 3^rd opposite party has no privity of contract with the customers and for the sheer negligence of the complainant, the 3^rd opposite party cannot be held liable.  Further, though the complainant alleges of deficiency of services, economic loss and mental harassment, no documentary proof has been produced by the complainant.  Further, the relationship between the dealer and manufacturer is one of the ‘principal to principal basis’ and not as ‘principal to agent basis’.  Therefore, the 3^rd opposite party cannot be held responsible for the deficiency of service, if any, on the part of the servicing dealer.  It is open for the customer to raise any number of grievances.  However, mere mentioning of the number of complaints by the complainant, does not per se indicate the actual existence of those complaints or problems.  It is the duty of the authorised service centre to look into each and every complaint and verify the actual existence of the same.  If the complaint made is genuine, then the problem should be rectified.  Therefore, since there is no manufacturing defect, the 3^rd opposite party is not responsible for any alleged grievance of the complainant.  Thus, sought for dismissal of the complaint.   

 

       6.  In order to prove the case, the complainant, along with proof affidavit, has filed 10 documents and the same have been marked as Ex.A1 to A10.   On the side of the opposite party, proof affidavit and 16 documents have been filed and the same were marked as Ex.B1 to B16. 

 

       7.  It is the specific submission of the complainant that he bought the car from one Ranjith in November 2016. From that day onwards, he is using the car with utmost care.  Whileso, when the complainant proceeded to Madurai for personal reasons in the car, he had to face some technical defects.  Therefore he approached the 1^st opposite party for repair of the car.  He also paid a sum of Rs.20,000/- to initiate repair of the car.  After two days, a staff of the 1^st opposite party called the complainant and informed that there is timing chain and engine problem. But the complainant was not aware of the same.  However, he paid a sum of Rs.55,487/- and took delivery of the car on 07.03.2017.  But again, he faced problems in the car.  When he enquired with a known mechanic it was informed that the diesel pump valve was broken.  Therefore, he reported the issue to the FIAT services through email on 03.04.2017 at 11.00 a.m.  By end of July, again the car got into repair.  When it was enquired with the local mechanic, he informed that the problem is pertaining to timing chain which had again broken.  So the complainant took the car to the 2^nd opposite party for service and repair.  Even after that, continuously, he was facing problem till date.  Therefore, he has filed the present complaint. 

    

     8.  Per contra, the contesting 2^nd opposite party submitted that the vehicle was brought to the 2^nd opposite party service centre in a towing condition.  At that time the car’s odometer reading was 1,28,951 kms.  Further, it was found that he was the 3^rd owner of the car.  It was also found that, earlier when the car was taken for servicing to the 1^st opposite party, to save on repair costs the complainant did not do engine overhauling as recommended by the 1^st opposite party, but merely wanted the vehicle to be in a running condition.  So he had done the minimal repairs as preferred by the complainant.  Thereafter, the complainant’s car was attended by some private mechanics, though full details of the same are not given by the complainant.  When the complainant brought his car in a towing condition to the 2^nd opposite party on 29.07.2017, the main complaint was that ‘vehicle not starting’.  The complainant expected free servicing including parts and labours from the 2^nd opposite party, on some perceived wrong notion, eventhough his car was well out of warranty.  Therefore, there is no deficiency of service on the part of the 2^nd opposite party.  The counsel for 3^rd opposite party has also submitted in similar line with that of 2^nd opposite party by adverting the version filed by them.

 

     10.   Keeping in mind the submission of the learned counsel for the complainant and the counsel for the opposite parties 2 and 3, we perused the entire material available on record.

 

      11.  At the outset, we find that the complainant had suppressed the fact that he is the 3^rd owner of the vehicle.  Moreover, the evidence on record would show that when he left the car for servicing with the 2^nd opposite party it had already run 1,08,881 kms.  Since these facts are suppressed in the complaint, the complainant has not approached this Commission with clean hands.  Moreover, except some bald and vague statements in the complaint with regard to the defects stated to have been sustained by the car, no tangible evidence was produced before this Commission to prove the case of the complaint.   It is a well known legal principle that mere pleading is not evidence unless it is proved in the manner known to law. In this regard, it would be relevant to rely upon the judgment cited by the 3^rd opposite party in the case of Improvement Trust, Ludhiana & anr vs. Shakthi Co-operative House Building Society Ltd, reported in 2009(3) RCR (Civil)-447 (SC), para 16, wherein it is observed that,

   “ The averments in the complaint by the consumer cannot be taken as a Gospel truth.  To support a finding of “unfair trade practice”, there has to be some cogent material before the Commission and any inferential finding is not sufficient to attract Section 2(r) of the Act.  Of course, the burden of proof, the nature of proof and adequacy thereof depends upon the facts and circumstances of each case.”

 

In the instant case, no cogent material is available.  Furthermore, when the vehicle was brought to the 2^nd opposite party workshop, there is no coverage of warranty for the said vehicle.   Hence, we are of the opinion, absolutely there is no substance in the complaint.  Though the complaint is liable to be dismissed with heavy cost, by taking lenient view, we refrain ourselves from doing so.

 

      12.  In the result, the Complaint is liable to be dismissed.  Accordingly, the Complaint is dismissed. 

 

 

R  VENKATESAPERUMAL                                  R.SUBBIAH, J.

MEMBER                                                     PRESIDENT

 

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Sl.No.       Date                 Description of Documents

 

Ex.A1                                Vehicle Registration Certificate  

 

Ex.A2        06.02.2017       Estimate issued by the 1^st Opposite Party

 

Ex.A3        07.02.2017       Email communication

 

Ex.A4        07.03.2017       Transaction details

 

Ex.A5        02.08.2017       E-mail communication between complainant

  and 2^nd & 3^rd opposite parties

 

Ex.A6        12.08.2017       E-mail from 2^nd opposite party along with

  the estimate dated 11.08.2017

 

Ex.A7        29.08.2017       Notice sent to 1^st Opposite party

 

Ex.A8        29.08.2017       Notice sent to 2^nd Opposite party

 

Ex.A9        29.08.2017       Notice sent to 3^rd Opposite party

 

Ex.A10      03.09.2017       Reply notice received from the 2^nd opposite

  party’s counsel

 

 

 

 DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES

 

Ex.B1     29.07.2017    2^nd OP’s Job Card opened for complainant’s

car   

       

Ex.B2    02.08.2017    Email from 2^nd OP to complainant’s

representative

 

Ex.B3    02.08.2017    Email from complainant’s representative

To 2^nd OP

 

Ex.B4    07.08.2017    Email from complainant’s representative

To 2^nd OP

 

Ex.B5    12.08.2017    Email from 2^nd OP to complainant’s

Representative, enclosing estimate dated  11.08.2017 for repairs

                    

Ex.B6    14.08.2017    Email from 2^nd OP to complainant’s

representative

 

Ex.B7    16.08.2017    Emails (2) between 2^nd OP and

complainant’s representative

 

Ex.B8    16.08.2017    Email from 3^rd OP to complainant and 2^nd 

OP

 

Ex.B9    17.08.2017    Email from 3^rd OP to complainant

 

Ex.B10   18.08.2017    Email from 3^rd OP to complainant and 2^nd 

                                        OP

 

Ex.B11   28.08.2017    Email from 2^nd OP to complainant’s

Representative

 

Ex.B12   29.08.2017    Common Advocate’s notice issued on behalf

                                     Of the complainant to 3 Ops

 

Ex.B13   03.09.2017    Reply notice issued on behalf of 2^nd OP to

                                     Complainant’s Advocate

 

Ex.B14   06.03.2018    Letter from 2^nd OP to Complainant with

complainant’s endorsement dated  14.03.2018 for taking delivery of his car from 2^nd Op’s workshop

 

    Ex.B15  07.03.2018    Proof of delivery of 2^nd Ops letter sent by

speed post

       

 

 

 

R   VENKATESAPERUMAL                                       R.SUBBIAH

         MEMBER                                                      PRESIDENT

                                                                                                                                                                                                                                                                                                                             

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/January 2023

 

 

 

 

 

 

 

 

 

 

             

 

C.C.No. 267 of 2017

HON’BLE  JUSTICE

THIRU R.SUBBIAH, PRESIDENT

     In the result, the Complaint is liable to be dismissed.  Accordingly, the Complaint is dismissed. 

 

 

MEMBER                  PRESIDENT              

30.01.2023              30.01.2023