Date of Filing 15.09.2023

                                                                                                       Date of Disposal: 28.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

               THIRU.P.MURUGAN, M.Com, ICWA(Inter), BL.,                                                        ….MEMBER-II

CC.No.90/2023

THIS WEDNESDAY, THE 28^th DAY OF FEBRUARY 2024

Mr.S.Ramesh,

No.190, Sivaprakasam Nagar,

No.4^th Cross Street, Soorapattu,

Puzhal, Ambattur, Thiruvallur,

Tamil Nadu 600 066.                                                                                ......Complainant.

                                                                              //Vs//

1.Ganesh Motor,

    Rep. by its Proprietor,

    123/1, Redhills Road,

    Barathi Nagar, Ambattur,

    Thiruvallur, Chennai 600 053.

2.SVS Auto Mart LLP,

   (Authorized Main Dealer for TVS Motor Company Limited),

   Rep. by its Proprietor,

   No.33/34, Iswarya Nagar,

   Thirumullaivoyal,

   Thiruvallur, Chennai 600 062.

3.TVS Motor Company,

    Rep. by its Proprietor,

   Chaitanya, No.12, Khadar,

   Nawaz Khan Road,

   Nungambakkam, Chennai,

   Tamil Nadu 600 006.                                                                       …..Opposite parties.

Counsel for the complainant                                    : Ms.K.Kalpana, Advocate.

Counsel for the 1^st opposite party                           : M/s.P.Sathish Kumar, Advocate.

Counsel for the 2^nd opposite party                          : Exparte.

Counsel for the 3^rd opposite party                           : M/s.M.V.Seshachari, Advocate.

This complaint coming before us on various dates and finally on 15.02.2024 in the presence of Ms.K.Kalpana, counsel for the complainant and M/s.P.Sathish Kumar, counsel for the 1^st opposite party and M/s.M.V.Seshachari, counsel for the 3^rd opposite party and 2^nd opposite party was set exparte for non appearance and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in selling defective vehicle along with a prayer to direct the 1^st opposite party to refund a sum of Rs.8,000/- and EMI cost and also compensation of Rs.3,00,000/- along with 14% interest, to direct the 2^nd opposite party to refund the cost of Rs.700/- and also compensation of Rs.2,00,000/- with 12% interest and directing the 3^rd opposite party to replace the defective product along with compensation of Rs.5,00,000/- with 15% interest and also direct the opposite parties to pay a sum of Rs.45,000/- towards litigation expenses.

Summary of facts culminating into complaint:-

2. That the complainant is a road side vendor selling fruits and juice for his daily needs.  He is the bread winner in his family.  He purchased TVS XL 100 from 1^st opposite party by paying the advance amount of Rs.8,000/- on 11.02.2023 vide receipt No.1714 and the said vehicle was delivered on 15.02.2023.  The 1^st opposite party directed him to avail bank loan for the balance payment.  After four days of purchase, the said bike stopped and had not started.  The 1^st opposite party replied that the petrol tank should be full since it is a new bike.  Again after three days the vehicle stopped in the middle of the road and the 1^st opposite party asked him to contact 2^nd opposite party who is the authorized service centre of 3^rd opposite party.  The 2^nd opposite party forced to pay Rs.500/- for the pickup and drop of the vehicle and the bike was delivered on 03.04.2023.  The said bike stopped again after 15 days of the service by the 2^nd opposite party.  The complainant handed over the vehicle to the 2^nd opposite party and the 2^nd opposite party charged Rs.350/- as cash for the service.  Due to manufacturing defects by the 3^rd opposite party, the complainant suffered severe loss and mental agony.  He issued legal notice to all the opposite parties, the 3^rd opposite party alone sent an evasive reply.  All the opposite parties committed negligence, deficiency in service and unfair trade practice and hence the complaint.

The crux of the defence put forth by the 1^st opposite party:-

3. That the complainant visited the shop and asked for bank loan to purchase the TVS XL 100 Heavy duty vehicle and the 1^st opposite party helped him to get the bank loan to purchase the vehicle.  That the complainant purchased the vehicle by paying advance amount of Rs.10,000/- on 15.02.2023.  The complainant made a call to the 1^st opposite party regarding the starting problem which happens in some new vehicles.  The 1^st opposite party advised him to keep sufficient petrol in the vehicle.  After a week he again called the 1^st opposite party regarding starting problem and the 1^st opposite party asked him to contact 2^nd opposite party who is the main authorized dealer of the TVS motor company limited.  The 3^rd opposite party is only responsible if the vehicle is found defective and the 1^st opposite party cannot be held responsible for the defect in the vehicle and therefore prays to dismiss the complaint.

The crux of the defence put forth by the 3^rd opposite party:-

4.That the complainant does not disclose any manufacturing defect in the vehicle in question nor any deficiency in service being established against TVS.  There is no privity of contract between the complainant and the 3^rd opposite party.  That the complainant purchased the vehicle in dispute from the other opposite parties, which was delivered by the other opposite parties wherein all the sale formalities were duly made and executed by the other opposite parties and the complainant had paid the amount to the 1^st opposite party herein and a such the present complaint is liable to be dismissed against the 3^rd opposite party on this ground alone. The 3^rd opposite party has a principal to principal relationship with its Authorized Main Dealers and it constantly reviews the performance of its dealers. All the issues relating to booking, delivery, registration, servicing, customer relation, etc., are independently handled by dealers.  As an obvious corollary thereto, the 3^rd opposite party is not responsible for the acts, omissions and fraudulent acts of the other opposite parties. Complainant has his grievances only against the opposite parties 1 & 2 and there is no specific allegation against the 3^rd opposite party as the same being the manufacturer of the said vehicle. Complainant failed to comply with the service instructions as informed by the other opposite parties during the delivery of the subject vehicle.  The customer ought to have availed the Periodical Service as indicated in the User Manual given to the complainant at the time of delivery.  As per instruction, the vehicle is ought to be given for its first service on completion of 500kms or 1 month from date of delivery.  However, the complainant has approached the Authorized Service Centre after completion of 796 kms which is an excess of 296 kms before the 1^st free service or 3 months after the recommended service date.  This is most likely the cause for the issues faced by the complainant as irreversible defects is caused if they do not comply with the recommended service, especially the first free service. Complainant wrongly alleged that the vehicle is having manufacturing defects. On every occasion, the vehicle was duly service to the satisfaction of the complainant and the complainant has duly signed the satisfaction notes.  Further the complainant has voluntarily not allowed for the engine oil to be replaced as well as condition a general check up. Sale was completed in the year 2022 and the issue was raised first to the Authorized Dealer on 20.03.2023 after completion of 796kms. Thus the 3^rd opposite party sought for the dismissal of the complaint.

5. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A12 were submitted. Though on the side of 1^st opposite party written version was filed he did not filed any proof affidavit and hence on the side evidence was closed on 06.02.2024.  On the side of 3^rd opposite party proof affidavit was filed but no document was submitted on their side. Though notice was issued by this commission to the 2^nd opposite party and the same was returned as unclaimed and hence it is deemed to be service on 03.10.2023 and hence he was called absent and set exparte on 09.11.2023 for non appearance and non filing of written version within the mandatory period as per the stature.

Points for consideration:-

1)    Whether there is any deficiency in service as alleged by the complainant against the opposite parties has been successfully proved by the complainant with admissible evidence?

2) If so, to what reliefs the complainant is entitled?

Point No.1:-

6. It is the case of the complainant that the vehicle TVS XL 100 purchased from 1^st opposite party and manufactured by 3^rd opposite party is having inherent manufacturing defects.  The complainant purchased the vehicle TVS XL 100 for his daily needs to run his livelihood.  After four days of purchase, the vehicle stopped suddenly.  The 1^st opposite party advised to keep sufficient fuel in tank.  Again after 3 days, the vehicle stopped again.  The vehicle was serviced by the 2^nd opposite party and delivered on 03.04.2023.  After 15 days of service, the vehicle stopped again.  The vehicle manufactured by 3^rd opposite party is having inherent manufacturing defects and the complainant suffered severe loss and mental agony due to manufacturing defects in the vehicle.

7. To prove the case, the complainant deposed proof affidavit with 12 documents which were marked as Ex.A1 to Ex.A12.  Ex.A1 is the Aadhar card of the complainant, Ex.A2 is the RC book of the complainant’s vehicle, Ex.A3 is the street vendor identity card of the complainant issued by the Greater Chennai Corporation, Ex.A4 is the Proforma Invoice issued by the 1^st opposite party, Ex.A5 is the initial amount paid by the complainant’s wife to the 1^st opposite party, Ex.A6 is the delivery note by the 1^st opposite party, Ex.A7 is the acknowledgement card given by the 2^nd opposite party for pickup and drop for the defective vehicle service, Ex.A8 is the details of the complainant’s defective vehicle, Ex.A9 is the legal notice sent by the complainant to the 1^st opposite party, Ex.A10 is the legal notice sent by the complainant to the 2^nd and 3^rd opposite party, Ex.A11 is the reply notice of the 3^rd opposite party and Ex.A12 is the two wheeler loan payment of the complainant.

8. Per contra the 1^st opposite party disputing all the allegations inter alia contending that they are the seller and the complainant purchased the vehicle from them on 15.02.2023 by paying advance amount of Rs.10,000/-.  The 1^st opposite party helped him to avail bank loan for the remaining payment.  The 1^st opposite party advised him to keep sufficient petrol in the tank of the vehicle to avoid starting problem.  If the vehicle is found defective, the 3^rd opposite party alone responsible for the manufacturing defects.  The 1^st opposite party cannot be held responsible for the defect in the vehicle.

9. The 3^rd opposite party contended that there is no such manufacturing defects in the vehicle as alleged by the complainant.  There is no privity of contract between the complainant and the 3^rd opposite party.  The complainant had not brought the vehicle for 1^st free service within the stipulated time i.e. 500kms or one month from the date of purchase.  He brought the vehicle to 2^nd opposite party after completion of 796kms.  This could be reason for the cause of the issues faced by the complainant.  On every occasion, the vehicle was duly serviced to the satisfaction of the complainant.  There is no cause of action for the complaint.

10. To refute the claim, the 3^rd opposite party deposed proof affidavit with no documents.  The 1^st opposite party has not adduced evidence on their side.  Hence evidence on the side of 1^st opposite party closed.

11. It is not disputed by both the parties that the complainant purchased new TVS XL 100 bike from the 1^st opposite party on 15.02.2023.  It is also admitted fact that the said bike had some starting problem after four days of its purchase.  Ex.A2 is the vehicle registration certificate.  Ex.A5 is the initial amount paid by the complainant.

12. It is seen from the acknowledgement card in Ex.A7 issued by the 2^nd opposite party reveals that the vehicle was picked up by the 2^nd opposite party for service as alleged by the complainant.  However there is no denial by the opposite parties in their written version about the pickup of the vehicle by the 2^nd opposite party.  Moreover the opposite parties had not filed any documents to substantiate their contentions.  They had not filed the service history of the vehicle.

13. It is seen from the written version of 3^rd opposite party that the vehicle was serviced for running repairs 3 times by the 2^nd opposite party within two and half month from the date of purchase

14. It is evidenced from the written version of 3^rd opposite party and Ex.C1 Expert opinion that the vehicle is having manufacturing defects.  The act of not rectifying the defects in the vehicle by the opposite parties amount to deficiency in service.  Hence we are of the considered view that the opposite parties committed deficiency in service and unfair trade practice.  Thus this point is answered accordingly.

Point No.2:-

15. Since we have come to the conclusion that the opposite parties had committed deficiency in service to the complainant we direct the opposite parties to rectify all the defects found in the vehicle at free of cost and to pay a sum of Rs.25,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.5,000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite parties1 to 3 jointly and severally directing them

a) To rectify all the defects found in the vehicle at free of cost within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.25,000/-(Rupees twenty five thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

d) If defects not rectified within six weeks from the date of receipt of copy of this order the opposite parties 1 to 3 are directed to refund the cost of the vehicle with 6% interest from the date of purchase till realization.

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this 28^th day of February 2024.

      Sd/-                                                        Sd/-                                                            Sd/-                                                                                                              

 MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

Court Document:-

   Sd/-                                                       Sd/-                                                           Sd/-

MEMBER-II                                      MEMBER-I                                             PRESIDENT