Tamil Nadu

South Chennai

143/2011

L.Naresh Kumar - Complainant(s)

Versus

Mahindra First Choice Super Store and Other - Opp.Party(s)

G.V.Sridharan

07 Oct 2016

ORDER

   Date of Filing :   28.04.2011

                                                                      Date of Order :   07.10.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM,CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

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

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

            

C.C.NO.143 / 2011

FIRDAY THIS  7^TH DAY OF OCTOBER 2016

 

Mr. L. Naresh Kumar,

S/o. Logaiyan,

No.25/8, Jaganatha Nagar

2^nd Main Road,

Arumbakkam,

Chennai 600 106.                                              ..Complainant

 

                                              ..Vs..

1.  The  Area Manager,

Mahindra First Choice Super Store,

No.1/11, Poonamallee High Road,

Nerkundram,

Chennai 600 107.

 

2. The Business Manager,

MPL Automobiles Agency Pvt. Ltd.,

No.20, Thanikachalam Street,

Near Hindi Prachara Sabha,

T.Nagar,

Chennai 600 017.                                               ..Opposite party.    

 

 

For the Complainant              :    M/s. G.V. Srindharan & others  

For the opposite party-1        :    M/s. Surana & Surana

For the opposite party-2        :    M/s. M.P.Mohandass.

 

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to replace the vehicle Ford Fiesta with another vehicle good quality with no defects and also to pay a sum of Rs.1,00,000/- for the monetary loss and mental agony and Rs.5,000/- as cost of the complaint.   

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that he has purchased 2^nd Ford Fiesta 1.4ZXI bearing registration No.TN 01 AA 8786 for Rs.4,05,000/.  The complainant also availed financial assistance by borrowing a loan of Rs.3,30,000/- through HDFC Bank, for the said purchase of the vehicle.  Within a month of his purchase of vehicle, the vehicle has suffered major repairs and complainant taken the vehicle to the Ford Company Service Station on several days continuously within the intervals of few days and had spent his money for repair such as on 18.09.2010 for  Rs.386/-, 26.10.2010 for Rs.9600/-, on 22.11.2010 for Rs.2208/- and on 03.02.2011 for Rs.23,079/- as such complainant has suffered monetary loss as well as mental agony for which the opposite parties are responsible as they have sold the defective vehicle without disclosing the defect as such, the opposite parties have committed deficiency of service which caused mental agony and hardship to the complainant  The complainant sought for to replace the vehicle, with good quality and to pay compensation of Rs.10,00,000/- and also cost of the compliant.

Written Version of 1^st  opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The 1^st opposite party submit that it is a dealer for vehicles manufactured by Ford.  It is also deals with second hand cars as franchisee of Mahindra First Choice Wheels Ltd.   Further when any second hand vehicle is sold, if the customer wishes to and avails of the warranty for such second hand vehicle, the 1^st opposite party through their Engineers inspect the said vehicle, certify the same and based upon their reports, the premium is fixed as regards warranty charges and the period of warranty.  Normally such warranties are given for a period of one year or 15,000 kms whichever is earlier.   This fact is clearly made known to all customers.   The expert, being satisfied with the condition of the vehicle had thereafter given his report and also valuation certificate to the bank, on the basis of which, the loan had been processed and sanctioned by the bank, and the balance payment for purchase of the vehicle was made by the HDFC Bank directly to the 2^nd opposite party and  has requested the 2^nd opposite party to see if there are any complaints as stated by the complainant.   To the best of the knowledge of the opposite party, the 2^nd opposite party, out of sheer goodwill, had inspected the vehicle and found that there had been no defects, as falsely alleged, and thereafter, the complainant had taken back the vehicle.  Hence there is no deficiency in service on the part of the 1st opposite party and the complaint is liable to be dismissed.

Written Version of 2^nd   opposite party is  in briefly as follows:

3.     The 2^nd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The 2^nd  opposite party submit that the complainant is not a consumer as defined under section 2 (1) (d) of the Consumer Protection Act 1986. At the time of booking the vehicle the opposite party educated  the complainant everything like condition of the vehicle only as “AS IS WHERE IS” No warranty and free service is covered.  The complainant entered the transaction knowing fully well that he has purchased the vehicle 2006 model second hand car which had already run 55812 kms and it is common knowledge that a car which is 5 year old and subject to normal wear and tear and one  cannot expect the same performance as a brand new car.  At the time of booking the complainant read entire terms and conditions of purchase agreement then put his signature in the agreement.     Hence there is no deficiency in service on the part of the 2^nd  opposite party and the complaint is liable to be dismissed.

4.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A9 were marked on the side of the complainant.   Proof affidavit of  opposite parties filed and Ex.B1 to Ex.B7 were marked on the side of the opposite party. 

5.      The points that arise for consideration are as follows:-

1.   Whether the opposite parties had committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

6.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite parties and the proof affidavit filed by complainant and opposite parties, the documents Ex.A1 to Ex.A9 filed on the side of the complainant and the documents Ex.B1 to Ex.B7 filed on the side of 2^nd opposite party and considered the arguments of the learned counsel appearing for the complainant and for the opposite parties.

7.     There is no dispute that the complainant has purchased 2^nd Ford Fiesta 1.4ZXI bearing registration No.TN 01 AA 8786 for Rs.4,05,000/.  The complainant also availed financial assistance by borrowing a loan of Rs.3,30,000/- through HDFC Bank, for the said purchase of the vehicle.  Ex.A1, Ex.A2, filed on the side of complainant and Ex.B1 to Ex.B5 filed on the side of 2^nd opposite party are proves the same. 

 

8.     Whereas the complainant has raised grievance that within a month of his purchase of vehicle, the vehicle has suffered major repairs and complainant taken the vehicle to the Ford Company Service Station on several days continuously within the intervals of few days and had spent his money for repair such as on 18.09.2010 for  Rs.386/-, 26.10.2010 for Rs.9600/-, on 22.11.2010 for Rs.2208/- and on 03.02.2011 for Rs.23,079/- as such complainant has suffered monetary loss as well as mental agony for which the opposite parties are responsible as they have sold the defective vehicle without disclosing the defect as such, the opposite parties have committed deficiency of service, hence the complainant has filed this complainant seeking to replace the vehicle, with good quality and to pay compensation of Rs.10,00,000/- against the opposite parties. 

9.     Whereas the 1^st opposite party has resisted the complaint by   saying that 1^st opposite party is nothing connected with the complaint mention dealing for the purchase of the vehicle of the complainant from the 2^nd opposite party, who incidentally also happen to be a Franchisee  of the 1^st opposite party.  When the 2^nd opposite party sold any 2^nd hand vehicle if the customer wishes to and avails of the warranty for 2^nd hand vehicle, the 1^st opposite party through their engineers, certify the same and based upon their reports, the premium is fixed as regards warranty charges and the period of warranty.  Normally such warranties are given for a period of 1 year or 15,000 kms, whichever is earlier. In this present case the complainant did not avail such warranty scheme of the 1^st opposite party.  In view of the same the 1^st opposite party is in no way connected to the said dealing of purchase of vehicle of complainant from 2^nd opposite party.  Thus this 1^st opposite party is no way liable or responsible for the claim made by the complainant in the complaint, as complaint is to be dismissed.  Whereas the 2^nd opposite party has resisted the complaint by saying that the purchase of  complaint mentioned old vehicle / used vehicle / second hand vehicle by the complainant was after the inspection of the car with his technical persons and being fully satisfied about the performance and conditions of the vehicle after taking a test drive and finally the complainant made advance booking of the car payment of Rs.10,000/- on 26.08.2010.  At the time of booking assured and  explained  everything  like condition of the vehicle only as “AS IS WHERE IS”.  NO warranty and free service is covered.  On that basis only the complainant has purchased the said vehicle.  The complainant while availing the bank loan for the said purchase of the vehicle, on behalf of the bank also vehicle was inspected and value for the price agreed were observed and loan was   sanctioned.  Therefore the complainant has purchased the second hand vehicle accepting the terms and conditions without any guarantee or warranty from the opposite party and inspecting the vehicle and valuing the same and accepting the price suitably has purchased the said car at his own risk. Further if the vehicle would have suffered repair, subsequently was due to complainant’s improper maintenance.  Therefore  contrary to the above facts the allegation made against the opposite parties, in respect of the purchase of the second hand car are not valid and not sustainable and this opposite party is not liable for any  claim made by the complainant.

10.    It is the admitted fact that the complainant has purchased the second hand car which was 2006 model, had already run 55,812 kms. and subject to the normal rear and gear   and one cannot expect the same performance as a brand new car or with good quality.  Further it is also accepted that as contended by the 2^nd opposite party at the time of booking of the purchase of the said vehicle, the complainant would have examined / inspected the vehicle through his technically known person with regard to the condition of the vehicle as well as for fixing of the price.  The price fixed and accepted for purchase,  would have been on the basis of the condition and quality by the  complainant’s satisfaction only.  Further it is also pertinent to mention that the complainant also booked the said vehicle, on 26-08-2010 and there was a agreement Ex.A2 for sale was also entered into with the complainant, 2^nd opposite party and the previous owner (sale person).  The content of the said agreement contains terms and conditions also.  That reveals that “the above vehicle is sold in as is where is basis……” and the Ex.A5 the Inventory cum Gate Pass  happened to be came into existence taking delivery of the complainant on 13.06.2011 and the delivery note thereon which are all contains that the said vehicle has been duly approved  and found to be with entire satisfaction was taken delivery by the complainant accepting the conditions mentioned thereon.  Therefore as contended by the second opposite party the said second hand vehicle was purchased and taken delivery by the complainant  after thorough inspection by fixing the suitable price on payment of the same  on the basis of the condition of the vehicle is acceptable. 

11.    Further it is also pertinent to mention that  there is no guarantee / no warranty or any promise  apart from the quality and condition of the vehicle which was found and verified and accepted by the complainant, with regard to the said vehicle given by the 2^nd opposite party in the selling of the said  second hand vehicle. Further, though the said vehicle after taking delivery by the complainant within few days was found suffered repair and complainant was made to attend the said repair works spending his money with Ford Motor Service Station, as per Ex.A3 to A6, for which,  the 2^nd opposite party cannot be made responsible and not made liable, since there is no contract or guarantee  alleged to have been given by the 2^nd opposite party to the complainant on the said dealing. Further even in practice, as stated  on the side of 2^nd opposite party that there is a provision to avail warranty for one year or upto 15000 kms. whichever is earlier on payment of necessary premium with 1^st opposite party, but in the present case, the complainant has not availed such warranty facilities with the 1^st opposite party.   Therefore we are of the considered view that the complainant have purchased  complaint mentioned second hand vehicle from the 2^nd opposite party at his own risk, without any warranty after satisfaction with the conditions of the vehicle  and on making payment for the suitable price,  on the  terms and conditions found in Ex.B2 and Ex.B5 and after using few days for the alleged repairs found to have been suffered, by the vehicle the 2^nd opposite party is not responsible  and cannot be made liable. Further though the 2^nd opposite party is a Franchisee under the 1^st opposite party, since, the dealing   of the purchase of said vehicle is concerned, the 1^st opposite party has no connection as no warranty was availed provided by the 1^st opposite party by the complainant for the said vehicle, the 1^st opposite party also not made liable for the  subsequent repairs found in the vehicle.

12.    Therefore we are of the considered view that  for the defects and  repairs found in the said second hand  vehicle, purchased by the complainant,  the 1^st and 2^nd opposite parties are not responsible and the allegation of deficiency of service alleged against the opposite parties by the complainant are not proved, complainant is not entitled for any relief sought for in the complainant and the complaint is liable to be dismissed.  Considering the facts and circumstances of the case, we are of the view that the parties should bear their own costs.  Accordingly the points 1 & 2 are answered.

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

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  7^th    day  of  October   2016.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

Ex.A1-  10.9.2012     - Copy of receipt given by the MPL Automobiles.

Ex.A2- 20.9.2010      - Copy of HDFC Bank given the letter and repayment schedule

                               With respect to the used car purchase loan.

 

Ex.A3-                    -        - Copy of Bill issue by the Chennai Ford 10 Nos.

Ex.A4-                    -        - Copy of Repair order given the Chennai Ford 4 Nos.

Ex.A5-                    -        - Copy of Cash receipt of Rs.2000/- given by Chennai Ford.

Ex.A6-                    -        - Copy of Complaint sent by complainant by way of email to the

                               Opposite party.

 

Ex.A7-  25.3.3011     - Copy of Lawyer notice.

 

Ex.A8-           -        - Copy  of Acknowledgment card with receipts.

 

Ex.A9-                    -        - Copy of consumer information sheet given by Chennai Ford.

 

                    

Opposite parties’ side documents: -    

 

Ex.B1- 26.8.2010      - Copy of Agreement for sale between the complainant and the

                               2^nd opposite party.

 

Ex.B2- 26.8.2010      - Copy  of receipt for the  payment of complainant.

Ex.B3- 7.9.2010        - Copy of receipt for the payment of complainant.

Ex.B4- 10.9.2010      - Copy of receipt for the payment of complainant.

Ex.B5- 10.9.2010      - Copy of Inventory cum Gate Pass by 2^nd opposite party.

Ex.B6- 25.3.3011      - Copy of Lawyer notice from complainant.

Ex.B7- 18.4.2011      - Copy of reply notice by the 2^nd opposite party.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.