IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 29th day of July 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.231/2021 (Filed on 06/10/2021)
Complainant : Anju Treesa Augustine,
D/o Sabu Augustine Thomas,
Sankoorikal House,
Munthirikavala, Kurisummood P.O,
Changanasserry, Vazhappally East,
Veroor, Kottayam - 686 104.
(By Adv: Geethu. C)
Vs.
Opposite parties : 1. The General Manager,
M.K Motors(Automobile Division of MPL),
A Division of Malankara Plantations Ltd.,
Malankara Building,
Kodimatha, Kottayam - 686 039.
(By Adv: Siby Chenappady)
2. The Director,
Tata Motors Limited,
4th Floor, Ahura Centre,
82 Mahakali Caves Road, MIDC,
Andheri East, Mumbai – 400 093.
3. The General Manager,
Tata Motors Limited,
South Zone,
Passenger Vehicle Business Unit,
4th Floor, Liv N Tower,
Opp. Gold Souk, Vytila,
Cochin – 682 019.
(Both by Advs:V.Krishna Menon,
M.K. Jose, Prinsun Philip &P.C Chacko)
O R D E R
Sri.Manulal.V.S, President
Case of the complainant is that on 6-09-2020 she had purchased a Nexon X ZA+ car from the first opposite party by paying an amount of Rs.14,43,129/-. The said car was hypothecated by ICICI Bank limited, Kochi. The second opposite party is the manufacturer of the said car and the third opposite party is the Zonal Head of the second opposite party. On 16-09-2020 the car was delivered to the complainant. After taking the delivery of the car from the showroom of the first opposite party while driving, the complainant felt some trouble with the car as it was not moving smoothly and there after the cluster panel of the car was showing an indication that AMT is fault. Immediately the complaint was informed to the first opposite party and their service personal. They informed to the complainant that it was not a serious issue and instructed her to give more acceleration to move the car and further instructed note to take reverse on slope area. Since the delivery of the car the complainant could not drive the car smoothly as the car was lagging. The complainant usually drives the car in a moderate speed but whenever she tries to give more acceleration especially at the time of overtaking the car was getting lagged and slowed down. The same was occurred in so many occasions and the complainant and her children had escaped from accident on many occasions. On so many occasions the vehicle required to be brought to the service station on account of so many complaints. The vehicle showing several troubles continuously and it’s engine got stopped on many occasions. The vehicle had not worked satisfactorily and it was continuously displayed the AMT fault and has lagging while driving. The first opposite party and their mechanic inspected the car and agreed to fix the problem under warranty, however when complainant collected the car and started using it again, the problem was still there. After 4 months of delivery of the car the complainant and her family went for a tour when they reached at Kodaikanal town the car got breakdown and the gear got stuck and she could not start the car. Then the complainant called the service centre of the opposite parties and inform about the situation but they asked her to tow the car to their service centre at Kottayam. The complainant availed help of mechanic from Kodaikanal and checked the car and corrected it to the running stage and the complainant returned from there on the next day. While she was bringing the vehicle to the showroom to the first opposite party in front of the showroom itself it again got broke down. The first opposite party asked her to take a rented car as they need one month time to repair the car. One Praveen who is the staff of the first opposite party gave assurance to the complainant that the second opposite party informed them to give Rs. 1,000/- per day as compensation to the complainant as travel expenses. After one month first opposite party informed the complainant that they have replaced the transmission parts with the new one and gave assurance that in future there will be no issues.
After the replacement of gearbox, the battery of the car drained fast and showed engine warning in the cluster and the car got breakdown again in traffic and it again showed AMT fault. The complainant asked the first opposite party to show them the service history of the car but they were not willing to give the services history. The clutch disc of the car was replaced twice within 20000 km. It is alleged in the complaint that one of the service personal of the first opposite party told complainant that the parts built-in by the second opposite party are substandard and it resulted defect in the products of the second opposite party.
At last the first opposite party removed and re–fitted the steering module and now it shows error and the first opposite party told to the complainant that they are now helpless and they could not repair the car and the complainant to look into the matter herself. When the complainant send an email to the customer care of the second opposite party they responded that they would initiate to provide all necessary support regarding the issues of the car and registered a complaint.
After the delivery, the car developed certain fault for which repeated complaints were made to the opposite parties. However the opposite parties made no effort to rectify the said fault. Due to the negligent acts of the opposite parties the complainant has suffered heavy loss and damages for which she is entitled for compensation. The vehicle was having manufacturing defects and required to be repaired many times during short intervals and some parts where required to be replaced during such repairs. So the complainant was not having good feeling of being owner of a new car. The opposite parties are liable for breach of contract as they have not complied with the terms of guarantee and have acted negligent in attending the complaints of the car. The complainant has every right to refund cost of the car or the replacement of the car. Hence this complaint is filed by the complainant praying for an order to take back the faulty car and refund the cost of the car and to pay Rs.25 lakhs with interest as compensation for loss and the damages suffered by the complainant and to pay Rs.30,000/- as cost of this litigation.
Opposite parties appeared before the Commission and filed separate versions.
First opposite party filed version contending as follows:
The complainant purchased a Tata Nexon XZA plus car on 6-09-2020. The averment in paragraph 3 of the complaint about the complaint which started from the beginning itself is not the fault of the opposite parties and due to in experience in using such Auto Matic Transmission vehicle. The service person explained her how to drive an automatic vehicle. However her inexperience and hesitation to adopt proper way of driving new automatic car, which is absolutely necessary for protection of such mechanism, has damaged it. The first opposite party has not received any complaint or queries from the complainant that she had been facing such problems from the beginning up to the first service. The service authorities will never suggest giving more acceleration to the car.
It is submitted in the version that according to the experts rough use of the automatic vehicle will cause damage to its transmission system. It appears that the complainant uses left leg for break pedal and her right leg simultaneously to accelerate the car which is a kind of prohibited practice and which cause damages to the transmission and clutch system. The first opposite party has replaced the clutch mechanism three times without any payment. The first opposite party has not seen this kind of issue in other vehicles of this model. Further the complainant does not depress the accelerator sufficiently to dis-engage the clutch fully and hence the system is in semi engaged condition when the complainant drives to her home, which is located on top of a steep hill.
There is no fault in AMT and no other complaints mentioned by the complainant. While in the trip to Kodaikanal, the complainant without informing the service department of the first opposite party entrusted the vehicle to a local mechanic and allowed them to work on it. After the complainant took the vehicle from the local mechanic shop the vehicle may have started showing problems regarding AMT and lagging issues. The unauthorised mechanic without having the knowledge of the new complex and recent technology’s of AMT model had done some serious mistake and the complainant is trying to frame those mistakes to the head of the first opposite party. The first opposite party never agreed to give Rs.1,000/- per day to the complainant. There is no such provision to pay rent for a rented car used by the consumers unless or until there is fault by the first opposite party. There was no change in any parts of the car mentioned by the complainant and the first opposite party will never change any parts of the vehicle without the customers consent.
P2P is a maintenance plan that guarantees protection against unexpected wear and tear repair. Value care P2P is a maintenance plan that guaranties protection against unexpected wear and tear repair to provide substantial saving protection through inflation and price volatility during the running of the vehicle. This plan excludes every engine and aggregates of the vehicle. That terms and conditions of the agreement clearly states about the inclusion and exclusion of various parts and the complainant clearly agree with. The first opposite party had never demanded money for anything stated in P2P warranty. The complainant is deliberately making false allegations.
The first opposite party never delivered defective vehicles to the customers as it will diminish their good will. The complainant never asked for service history of the vehicle. Service history are already delivered to the customers every time after the service of the vehicle. The complainant is making fake allegations and tried to ruin the reputation of the first opposite party. The complainant never filed any complaint through email to the first opposite party. If there is any complaint registered the service official would contact the complainant and rectify the complaint immediately. The first opposite party is not liable for breach of trust because the complainant herself initiated service the vehicle with an unauthorized mechanic who does not know the complexity of the vehicle mechanism. The vehicle does not show any kind of defects before the complainant give the vehicle to an unauthorised mechanic. All the vehicles given from the first opposite party is standard and with premium quality. There is no deficiency in service or unfair trade practice on the part of the first opposite party.
Second and Third opposite parties filed version as follows:
Second opposite party is a company incorporated under the provisions of the Companies Act and having its registered office at Bombay. The present complaint is an abuse of process of law and is not maintainable. The warranty offered on every vehicle manufactured by the second opposite party is subject to the terms and conditions of the warranty and contained in the operators service book. The car purchased by the complainant is of the highest quality and the complainant had taken delivery of the car after being satisfied with its condition and its performance. The car was delivered after carrying out the pre-delivery inspection by the dealer. All the cars manufactured in the plant of the second opposite party are put through strict control systems, quality checks and best drives by the quality assurance department before being cleared for dispatch to the market.
The complainant has filed this complaint alleging manufacturing problems in the car without having any expert opinion. The complainant had booked for and subsequently taken delivery of a Tata Nexon car after personally inspecting the same and being fully satisfied with the car. The very fact that as on 24/08/2021 within a span of 11 months of purchase the car had covered 22421kms, thereby clearly implying that there is no defect or deficiency in service on the part of the opposite parties as alleged. There is no merit or basis in the allegations raised in paragraphs 3 to 10 of the complaint. During the periods 3-09-2020 to 24-08-2021 whenever the complainant had taken her car to the workshop of the first opposite party voicing a complaint with the car the Service Personal in the workshop of the first opposite party had looked into such complaints and carried out the necessary repairs under warranty. On each of the occasion the complainant had taken delivery of the car after personally inspecting the same and being fully satisfied with the repairs. There is no manufacturing defects to the car as alleged. The complainant has raised the said allegation without any bonafides. There is no deficiency in service or unfair trade practice on the part of the second and third opposite parties.
Complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A7 from her side. Report of the Expert Commissioner is marked as C1. Jain Ellias who is the Legal Manager of the first opposite party filed proof affidavit in Lieu of chief examination. Jithin K.V. who is the customer care manager of the second opposite party filed proof affidavit. Expert Commissioner is examined as DW1.
On evaluation of complaint, evidence on record and version we would like to consider the following points.
- Whether the complaint is maintainable ?
(2) Whether the complainant had succeeded to prove any deficiency in service or unfair trade practice on the part of the opposite parties?
( 3) If so what are the reliefs and costs ?
POINT NO. 1
There is no dispute on the fact that the complainant had purchased a Tata Nexon XZA+ car from the first opposite party by paying and amount of Rs.14,43,129/- being the price of the said car. The car was hypothecated to the ICICI Bank Kochi. It is proved by Exhibit A1 that the complainant had paid Rs.11,43,129/- to the first opposite party being the price of the said car. Exhibit A2 is a tax invoice issued by the second opposite party to the complainant. On perusal of A2 we can see that the second opposite party has agreed for annual maintenance from 28-10-2020 to 7-09-2024. The second opposite party is the manufacturer and they offered warranty for the car purchased by the complainant through the first opposite party who is the authorized dealer of the first opposite party. Thus, we are of the opinion that the complainant is a consumer of the first and second opposite parties.
The second opposite party contended that the complaint is not maintainable on the ground that this Commission has no territorial jurisdiction to entertain this complaint. The complainant who is a residing at Kurisummood, Changanassery which is within the jurisdiction of this Commission. More over the first opposite party is carrying his business at Kodimatha, Kottayam within the jurisdiction of this Commission. Therefore, we are of the opinion that this Commission has the ample jurisdiction to entertain this complaint and the complaint is maintainable before this Commission.
POINT NOS. 2 & 3
The specific case of the complainant is that from the date of purchase itself the car showed some trouble, it was not moving smoothly and the cluster panel of the car was showing an indication that AMT is fault. It is alleged in the complaint that the clutch disc of the car was replaced twice within 20000 kms. According to the complainant the car is suffering from inherent manufacturing defect.
The complaint was resisted by the opposite parties contending that the car which was sold by them to the complainant is of high quality and standard. It is contended by the first opposite party that the allegation with regard to the lag in acceleration is due to the bad driving habits of the complainant. The second and third opposite parties contended that during the period of 30/09/2020 to 24/08/2021 whenever the complainant had taken the car to the service centre with a complaint the first opposite party hard carried out the necessary repair works under warranty and each of the occasion the complainant had taken the delivery of car after personally inspecting the same and being fully satisfied with the repairs.
In order to prove the manufacturing defect, the complainant had got it examined by an Expert Commissioner and the report of the expert is marked as Exhibit C1. In C1, Expert Commissioner reported that the condition of clutch/transmission is not satisfactory and faulty. He further reported that within 25000 kms the clutch assembly has replaced for three times. It is also reported by the expert in C1 that the transmission assembly of the vehicle was replaced in 7073 kms and there is serious issue with the power plants by transmission and clutch which were not resolved till the date of inspection by him. The expert further reported in his report that the speed of the vehicle was not increasing even after giving sufficient acceleration. The expert Commissioner opined that this problem was may be due to faulty clutch unit or any sensors. According to him the car was having severe manufacturing defects. Though the Expert Commissioner was examined as DW1 nothing was elucidated in the cross examination to discredit his report. During the cross examination he deposed that he had arrived at the conclusion regarding the transmission complaint after the documents were supplied to him by the service centre. He further deposed before the Commission that he had noticed any fault for abnormality in the driving habit of the complainant.
The opposite parties filed objection to the report of the Expert Commissioner but they did not adduce any evidence to contradict the report of the Expert Commissioner. In the absence of contradictory evidence, we are of the opinion that the vehicle which was sold by the opposite parties to the complainant is of a one having inherent manufacturing defects.
The learned counsel for the second and third opposite parties placed a decision of the Honourable Supreme Court reported in 2000 in KHC 491. On going through the decision, the allegation in that case was with regard to the offences punishable under Section 468, 420 and 120 B of the Indian Penal Code. The facts and circumstances of the above referred case was entirely different from the case on hands and the principle laid down in the said decision is not applicable to the case on hand.
The purchaser of a new car would not expect that she will visit the service centre regularly to cure the defect of the vehicle. The owner of a new car never expect that he had to spend much time and money to rectify the defect of newly purchased car. It is evident that the complaints were aroused during the warranty offered by the second opposite party manufacturer. On the evaluation of above discussed evidence, we hold that the opposite parties have committed unfair trade practice by selling defective car to the complainant and further committed deficiency in service by not rectifying the defect under the warranty. No doubt due to the deficiency in service and unfair trade practice on the part of the opposite parties caused much mental agony and hardships to the complainant.
In the circumstances we allow the complaint with the following order.
We hereby direct the opposite parties to take back the defective vehicle from the complainant and to refund Rs.11,43,129/- to the complainant with interest at the rate of 9% per annum from the date of filing of this complaint till realisation. It is directed that the complainant shall handover the vehicle to the opposite parties within 30 days from the receipt of copy of this order.
We hereby direct the opposite parties to pay Rs. 1,00,000/- (Rupees One Lakh only) as compensation to the complainant for the deficiency in service and unfair trade practice on the part of the opposite parties.
The opposite parties are jointly and severely liable to comply this order within 30 days from the receipt of this order, failing in which the compensation amount shall carry 9% interest from the date of this order till realisation.
Pronounced in the Open Commission on this the 29th day of July, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainant:
Nil
Witness from the side of Opposite Parties :
DW1 - Ganesh Kumar.S.
Exhibits from the side of the Complainant :
A1 - Copy of Tax Invoice No.MKM/831 dated 16/09/2020
for Rs.11,43,129/- issued by the Ist opposite party
A2 - Copy of Tax Invoice dated 28/10/2020 for Rs.10800.75
for taking P2P warranty
A3 - Deliver Checklist issued by the Ist opposite party
A4 - Copy of welcome letter dated 18/09/2020 issued by
the General Manager of the Ist opposite party
A5 - Copy of Registration Certificate of the car bearing
Reg.No.Kl-33/M6853
A6 - Insurance Certificate dated 14/09/2021 issued from
the Oriental Insurance Company Limited
A7 - Copy of Invoice
Ext.C1 - Commission Report
Exhibits from the side of Opposite parties :
Nil
By Order,
Sd/-
Assistant Registrar
