BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.319 of 2014

Date of Instt. 12.09.2014

Date of Decision :07.08.2015

Gagandeep Singh son of Balbir Singh R/o Village Mann Kaur Singh, Ward No.4, Pandori Road District Gurdaspur.

..........Complainant Versus

1. Kosmo Vehicle Pvt Ltd, (Passenger Car Dealer) Main Jalandhar, Phagwara GT Road, Near Delhi Public School (DPS), Jalandhar through its authorized representative.

2. Tata Motors Ltd, One Indiabulls Centre Tower 2A & B, 20th Floor, 841, Sanapati Bapat Marg, Jupiter Mills Compund, Elphinstone Road (West), Mumbai-400013 through its Managing Director.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Harish Mahajan Adv., counsel for complainant.

Sh.Ashok Khanna Adv., counsel for OP No.1.

Sh.VK Attri Adv., counsel for OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased Indigo eCs VX Model 2012 car from opposite party No.1 on 18.2.2013 Engine No.1.4CRAIL08XY W19657 Chasis No.MAT601481CWWD26618 bearing registration No.PB-06-U-2671. After using the car for a few days there was problem of emission of Black Smoke and its average was also very low as compared to the average speed which a new vehicle of this model should actually have. In order to get rid of both these problems, complainant visited the dealer on 7.9.2013. The workshop in charge of the dealer assured the complainant that these faults will be removed by getting the vehicle checked by their expert service engineer. Till date this car has been serviced for five times but the problem which was reported at the very first service still persisted. Apart from this an abnormal sound can be easily listened from the engine of the vehicle while standing near the vehicle. Complainant corresponded many times with the concerned officials of the company (through emails) regarding his problem and they replied that they have intimated their Ludhiana regional branch and Kosmo Vehicles dealer to provide all necessary support and look into the issue at the earliest. In between these correspondences, it was decided that necessary repair will be carried out at Cargo Motors, Jalandhar on 15.7.2014 in the presence of the officials of the Tata Motors to whom the matter can be personally explained by the complainant. On 15.7.2014 the problem of emission of black smoke was resolved by the Cargo Motors for the time being and for the problem of mileage it was discussed that complainant will be visiting as per his convenience. But the problem of emission of black smoke occurred again, on the same day i.e 15.7.2014, when the complainant was coming back to his place, problem of millage is still unresolved even after getting it checked from Cargo Motors. It is added here that problem of emission of black smoke still persists. Due to this intolerable harassment for defects of this newly purchased vehicle, the complainant when looked into the necessary documents of the vehicle i.e Owners Manual & Service Book it was found that the vehicle sold to him was an old one and it was reconditioned and re-fabricated. Complainant made out this fact from the Owner's Manual & Service Book that it was issued to seller Pradeep Kumar R/o N.K.241, Charanjit Pura, Jalandhar, these details have been erased and are legible only when seen very minutely. As per the invoice issued to the complainant, the vehicle was sold on 18.2.2013 but the date of sale as per Owners Manual & Service Book is 31.5.2012. The company has used unfair fraudulent trade practices and harassed the complainant by selling a secondhand car after reconditioning it. On such like averments, the complainant has prayed for directing the opposite parties to replace the car in question with new one. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that the complainant has filed this baseless complaint alleging defects in the vehicle without having produced any expert opinion to prove that the subject vehicle suffers from the problem as alleged, or to establish any manufacturing defect in the vehicle in question. The complainant has failed to disclose fact before this Forum that vehicle has met with the major accident twice and after accidental repair the vehicle was delivered back in the month of July 2013 and April 2014 that is before the date of filing of the present complaint. It is submitted that the vehicle in question is a commercial vehicle and has been used for a taxi purpose in order to generate a profit and has covered more than 29,994 KMs within a span of approximately 14 months which speaks about the extensive usage of vehicle in question. The complainant brought the vehicle in question Ist time on 22.3.2013 at 1499 KM Ist free service. At that time, the complainant did not report any complaint in the vehicle in question. Subsequently the vehicle in question was brought on 15.5.2013 at about 5400 KMs for availing 2nd free service. At that time too, the complainant did not report any complaint in the vehicle in question. Thereafter, the vehicle in question was brought on 8.3.2013 at 10254 KMs for carrying out 3rd free service. This time also, the complainant did not report any complaint in the vehicle in question. The complainant be directed to produce job cards relating to above services, which may crystal clear the fact that whether there was problem in the vehicle or not? After 3rd service, the complainant brought the vehicle in question for accidental repair in the month of July 2013. The accident was too much major, which resulted in replacement of various parts in the vehicle. The complainant has not even a single time reported the complaint of black smoke or low average before this accident. The problems have risen due to impact of accident on the vehicle in question. The complainant has negligently used the vehicle, due to which the vehicle met with major accidents twice, for which opposite party can not be held responsible. It is specifically denied that the complainant suffered any inconvenience or this answering opposite party has sold a secondhand vehicle for the cost of new car. The complainant has taken delivery of vehicle in question after pre-delivery inspection and to his entire satisfaction. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.2 pleaded that from perusal of the instant complaint, it would be observed that averments made therein, are vague, baseless and with malafide intent. The complainant had made misconceived and baseless allegations of repeated problem of black smoke in the vehicle without relying on any expert report from a recognized laboratory and deficiency in service is without any documentary evidence in support of the allegations made in the complaint. The complainant has approached this Forum with unclean hands and suppressions of material facts. The complainant has failed to disclose the fact before this Forum that the vehicle has met with major accidents twice and after accidental repairs the vehicle was delivered back in the month of July 2013 and April 2014 i.e before the date of filing of the present complaint. As per records, maintained by the answering opposite party, the complainant brought the vehicle in question first time on 22.3.2013 at 1499 KMs for first free service. At that time, the complainant did not report any complaint in the vehicle in question. Subsequently, the vehicle in question was brought on 5.5.2013 at 5400 KMs for availing 2nd free service. At that time too, the complainant did not report any complaint in the vehicle in question. Thereafter, the vehicle in question was brought on 30.6.2013 at 10254 KMs for carrying out 3rd free service. This time also, the complainant did not report any complaint in the vehicle in question. The complainant be directed to produce job cards relating to above services, which may crystal clear the fact that whether there was problem in the vehicle or not? After 3rd service, the complainant brought the vehicle in question for accidental repairs in the month of July 2013. The accident was too much major, which resulted in replacement of following parts in the vehicle:-

1. Assy.head lamp Ihs 2. Assy.bonnet latch hood

3. Assy.frame radiator 4.Cross mbr bumper

5. Assy.mbr.Radiator mtg.bottom

6. Hood bumper rubber 7. Assy.head lamp rhs

8. Radiator complt.Ac 9. Assy.front bumper

10. Assy.tube(egr valve to egr pipe)

11. Hose hsg water outlet to radiator.

12.Condenser compl subros

13. Assy.fan shround 14. Grommet rad.mounting

15.Assy.front fog lamp Ih

16. Assy.front for lamp rh

4. The above mentioned parts were replaced alongwith other parts and lubricants were replaced at that time. The complainant has not even a single time reported the complaint of black smoke or low average before this accident. However, the complainant has not disclosed this fact before this Forum and approached this Forum with unclean hands to misguide and prejudice the mind of this Forum to gain illegal and undue benefits. It is pointed out for the kind attention of this Forum that before the aforesaid accident, the complainant never reported any problem in the vehicle in question and after the accidents, the problems have arisen due to impact of accident on the vehicle in question. It is pertinent to mention that on 31.5.2012 is the date when answering opposite party has sold the vehicle to opposite party No.1 and not to the complainant directly. It is vehemently denied that opposite parties has used unfair fraudulent trade practices by selling a secondhand vehicle. At the time of delivery of vehicle, the complainant has, himself, inspected the vehicle and after satisfying himself, took delivery of vehicle. The complainant is making false and frivolous story to gain illegal and undue benefits at the costs of opposite parties. It denied other material averments of the complainant.

5. At the stage, when the case was fixed for evidence of opposite party No.2, none appeared on its behalf and as such it was proceeded against exparte. However, learned counsel for opposite party No.2 appeared subsequently and filed written arguments.

6. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and evidence of the complainant was closed by order.

7. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.OP1/A alongwith copies of documents Ex.OP1 to Ex.OP8 and closed evidence.

8. We have carefully gone through the record and also heard the learned counsel for the parties and further gone through the written arguments submitted on behalf of opposite party No.2.

9. So far as objection of the opposite parties that the complainant is using the car as taxi i.e for commercial purpose and as such can not be termed as consumer is concerned, there is no reliable evidence on record to prove this fact. So their objection in this regard is without any substance.

10. Counsel for the complainant contended that after repeated defects in the newly purchased car when the complainant went through the owners manual and service book, it was found that vehicle has been sold earlier to one Pradeep Kumar R/o N.K.241, Charanjit Pura, Jalandhar, these details have been erased and are legible only when seen very minutely in the owners manual and service book. He further contended that secondhand car was sold to the complainant. In order to clarify the above version of the complainant, this Forum summoned above said Pradeep Kumar and his statement was recorded on 2.7.2015 and in his statement he denied to have purchased the car in question from opposite party at any time. He stated that in fact he had purchased one Indigo Manza from the above said company on 28.6.2013 and said car is still with him. Ex.C3 is copy of Cap Identification and Record. In this document after writing the name and address of the some person, the same appears to have been erased. It can not be held with the certainty that when this act was done and by whom, it is quite probable that even after purchasing the car, the complainant might have written the name of some person and then erased it in order to make up a case that the car sold to him, was old one. The complainant purchased the car on 18.12.2013 and whereas the present complaint was filed on 11.9.2014 i.e after more than 1-1/2 years and during all this period, the complainant never raised dispute that car sold to him, was old one. So there is no reliable evidence on record to come to the conclusion that the car sold to the complainant was old one and it had earlier been sold to above said Pradeep Kumar.

11. Next grievance of the complainant is that there was problem of emission of black smoke and low average right from the start. The opposite parties have produced service history Ex.OP2 of the car. As per service history, the first free service was done on 22.3.2013 at the reading of 1499 KMs. At that time, no complaint of low average and emission of black smoke is recorded. Second free service was done on 5.5.2013 at the reading of 5400KMs and 3rd free service was done on 30.6.2013 at the reading of 10254 KMs. At the time of second and third free services, no complaint of low average, emission of black smoke or abnormal sound from the engine of the car were reported. Thereafter the car went to the workshop for service on 17.7.2013 for accidental repair and various parts as mentioned in the service history were replaced. Only after accident when the car went to workshop on 29.8.2013 for running repair, the complaint of low average was reported. So before the accident, the complainant had not made any complaint regarding low average, emission of black smoke or abnormal voice from the engine of the car. As per service history on 26.4.2014, the car was again taken to workshop for accidental repair. So only after accident of the car, the complainant reported problems of low average and emission of black smoke. It is in the affidavit Ex.OP1/A of H.S.Talwar, Authorized Representative of opposite party No.1 that the problems have risen due to impact of accident on the vehicle in question. For accidental damage to the car, opposite parties can not be blamed. The complainant has not examined any expert witness to prove that there is any manufacturing defect in the car. He has only tendered his affidavit in support of his case. As per service history as on 23.6.2013 at the time of paid service, the car has already covered 29994 KMs. In case there was any manufacturing defect in the car, it would not have covered such a distance within a span of one year and four months. The low average could be due to bad driving habits, bad condition of the roads on which the car is driven and various other factors. If the car is driven in city in congested area, its would give low average but on national highway, the average will be more. Whenever, the complainant visited the service centre of the opposite parties the service was provided to him. It may be mentioned here again that the complainant has not examined any expert witness to prove that the alleged defects are due to any manufacturing defect in the vehicle or on account of any deficiency in repairing the car by the opposite party. In the complaint, the complainant has suppressed the fact that the car had met with accident twice. He has suppressed the material facts. The complainant has failed to prove any deficiency in service by leading any cogent and reliable evidence.

12. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

07.08.2015 Member Member President