By: Sri. Mohamed Ismayil C.V., Member
The grievance of the complainant is state as follows:-
1. On 16/07/2020 the complainant advanced Rs.40,000/- to the second opposite party to purchase a vehicle named TVS XL 100 B.G. The complainant made payment of Rs.25,000/- in cash and balance Rs.15,000/- remitted after selling his wife’s vehicle. Due to Covid 19 quarantine, the delivery of the vehicle was effected on 27/08/2020 after making balance payment Rs.20,000/- out of which Rs.10,000/- paid in cash and issued a cheque for balance Rs.10,000/-. The vehicle was under gone first service on 21/09/2020 and second service also undergone when the vehicle covered 2525 kms. During those periods, the complainant noticed brake complaint and same was conveyed to the second opposite party. The second opposite party is given assurance of proper rectification of the vehicle. On 17/02/2021, while the complainant along with his family were proceedings to Thrissur, smoke come out from the back wheel of the vehicle and the complainant was compelled to halt the vehicle on the way. At that time wheel was very hot and smoke was spread over there. As result of the defects of the vehicle, the complainant could not move along with his family and he had to spent whole night in a lonely place. In the next morning the complainant contacted the service centre of the opposite party situated at Mannutthy , Thrissur by taking the vehicle to the service centre with help of a carriage vehicle after spending Rs.2,000/-. In the service centre, it was found that the spring of the brake shoe was in a broken condition and one of the brake liner was looked very thinly worn. The service centre of the opposite parties demand payment for repair work even though the complainant conveyed that the vehicle has got valid warranty coverage . But the complainant was compelled to remit Rs.240/- as service charge and replacement of spare parts. According to the service centre of the opposite party no record of warranty was found in the online site of the opposite parties. The complainant did not have any money as he had to pay Rs.2,000/- for bringing the damaged vehicle to the service centre resulting empty pocket. As there was no money in hand , the complainant and his son begged for money from the people seen there and by using such money the complainant was able to take back the repaired vehicle. The complainant looked after his family with much pride. But the above situation caused utter humiliation to the complainant. According to the complainant, the manufacturer and dealer of the vehicle are responsible for deficiency in service and unfair trade practices. The second opposite party miserably failed to find out the thinly worn condition of brake liner even after the vehicle was undergone repeated services. Moreover the first opposite party committed deficiency in service towards the complainant by non production of the records of the vehicle in their online site. According to the complainant service book is the only record available with owner of the vehicle. All other records including service history are available in the software of the company. The non availability of the previous service details caused damage to the complainant. It is further contended that the opposite parties manufactured the brake liner defectively. A vital part of the vehicle was manufactured without giving due importance. Subsequent to the aforesaid incident , the complainant examined all records of the vehicle and found that June ,2021 is the expiry period of insurance policy. According to the complainant, advance payment of the vehicle was done in 16/07/2020 and delivery of the vehicle was affected on 27/08/2020. The complainant handed over personal records at the time of remittance of advance payment of the vehicle and at the time of delivery the registration proceedings were completed even number was also allotted to the vehicle. The complainant alleged that the opposite parties sold an old and used vehicle to the complainant instead of a new vehicle and thereby cheated him. The complainant suffered mental agony and hardship due to the deficiency in service of the opposite parties. The complainant prayed for an order to direct the opposite parties to pay compensation of Rs.8,00,000/- (Eight lakh rupees only) to the complainant for the sufferings of mental agony and hardship due to the deficiency in services committed by the opposite parties and also prayed for an order to refund Rs.60,000/- as the cost of the vehicle. The complainant also claimed Rs.2,000/- as the amount spent for arranging a carriage to bring the subject vehicle to the service centre and another Rs.244/- as the amount spent at service centre for repairing the vehicle. Moreover the complainant further prayed for a direction to the opposite parties to remit Rs.75,000/- in road safety fund due to the defective manufacturing of the vehicle leading to road accidents.
2. The complaint is admitted and issued notice sto the opposite parties. The first opposite party received notice but did not file version. The second opposite party entered appearance through counsel and filed version.
3. In the version of the second opposite party, it is contended that the complaint is not maintainable and all allegations are denied. According to the opposite party he sold the vehicle for Rs.60,527/- to the complainant after registration of the vehicle, and making payment of vehicle tax etc. The opposite party also did services to the vehicle properly till the date of filing of the complaint. As per ledger dated from 01/04/2020 to 01/04/2021 the complainant is indebted Rs.7,021/- to the opposite party. The allegation that on 17/02/2021 while the complainant and his family were proceeding to Thrissur, smoke came out from the back wheel of the vehicle and compelled to halt the vehicle on the way is denied by the opposite party. The opposite party also denied the statement of the complainant that the vehicle was taken by the help of a carriage vehicle to the service centre for repairing works. The allegations of worn out of brake liner and broken up of brake shoe are to be proved by the complainant himself. According to the opposite party, after using the vehicle for nearly 4000 kms , there will be natural worn out to the brake liner. There is no deficiency in service committed against the complainant. The payment made for repairing work at Ollukkara Centuar Motors was due to non production of service book by the complainant. According to the opposite party the production of service book by the complainant will reveal the said fact. The complainant received the vehicle without making entire amount of the price of the vehicle. The complaint is filed in belated stage and demand of repayment of balance amount caused enmity which resulted in to filing of the complaint as a step to wreck vengeance against the opposite parties . It is stated in the version that service warranty does not preclude the payment for spare parts. If any damage is caused to the parts of vehicle, then the liability goes to the manufacturer not to the dealer or service centre of the product. The allegation of selling of used vehicle is utterly false and incorrect. According to the opposite party, the complainant purchased the vehicle after convincing the entire situation prevailed at the time of purchase of the vehicle . It is stated by the opposite party that change of ownership of the vehicle was done on the basis of conviction of the complainant himself. The complainant is making an attempt to secure unlawful gain out the complaint and complainant is not entitled for any relief sought in the complaint. The opposite party also prayed for a direction to the complainant to repay the balance amount of the vehicle and also prayed for dismissal of the complaint with compensatory cost of Rs.15,000/- from the complainant.
4. The complainant and the second opposite party filed affidavits as well as documents. The documents produced by the side of the complainant is marked as Ext.A1 to A8 documents. Ext. A1 document is the copy of advertisement of the vehicle published in a news paper. Ext. A2 documents are the copies of bills issued by different dealers of the first opposite party including the second opposite party. Ext. A3 document is the copy of bill dated 29/11/2021 issued by second opposite party. Ext. A4 document is the copy of page No.56 of service manual of the vehicle. Ext. A5 document is the copy of letter dated 06/10/2021 issued by the complainant to the second opposite party. Ext. A6 document is the copy of letter dated 29/11/2021 issued by the second opposite party. Ext. A7 document is the copy of tax invoice dated 23/02/2022 issued by the second opposite party. Ext. A8 document is the copy of letter dated 10/03/2021 issued by the second opposite party to the complainant. The documents produced by the opposite party are marked as Ext. B1 to B14. Ext. B1 document is the copy of tax invoice dated 29/06/2020 issued by the opposite party to Mr. Madahusoodhanan , Madhu Nivas , Wandoor. Ext.B2 document is the affidavit executed by Mr. Madhusoodhanan, Madhu Nivas, Karutheri (P.o), Wandoor. Ext. B3 document is the copy of policy schedule of policy No.3011003120P102977716 issued infavour of Madhu Soodhanan , Madhu Nivas , Karutheri (P.o), Wandoor. Ext. B4 document is the copy of ledger account of the complainant between 01/04/2020 to 30/03/2021. Ext. B5 document is the coupon of free service dated 21/09/2020 issued by the opposite party. Ext. B6 document is the job card dated 21/09/2020 pertaining to the service of the vehicle. Ext. B7 document is the coupon of free service dated 05/12/2020 issued by the opposite party. Ext. B8 document is the job card dated 05/12/2020 pertaining to the service of the vehicle. Ext. B9 document is the copy of job card dated 12/08/2021 pertaining to the service of the vehicle. Ext. B10 document is the copy of job card dated 29/11/2021. Ext. B11 document is the copy of job card dated 25/04/2022 pertaining to the service of the vehicle. Ext. B12 document is the coupon of free service dated 01/03/2021 issued by the opposite party. Ext. B13 document is the job card dated 01/03/2021 pertaining to the service of the vehicle. Ext. B14 is the pen drive revealing the telephonic conversation between the opposite party and the complainant.
5. Heard both sides in detail. The complainant and the second opposite party filed notes of argument. The commission gone through documents and affidavits and following points arisen for consideration.
Whether the opposite parties committed any kind of unfair trade practices or deficiency in service towards the complainant?
Then relief and cost
6. Point No.1 & 2
The complainant agitated his grievances based on three grounds. According to the complainant he purchased a vehicle named TVS XL 100 BG from the second opposite party after making payment of Rs.60,000/-. The complainant produced copy of news paper advertisement of the vehicle and same is marked as Ext. A1 document. The complainant also produced bills of different dealers of first opposite party including the second opposite party.The opposite party admitted the ownership of the vehicle by the complainant. The complainant alleged that while he was driving the vehicle to Thrissur along with his family smoke was came out from the back wheel of the vehicle and he halted the vehicle on the way. At that time wheel was very hot and smoke was spread over there. When the complainant approached the nearest service centre with much constrain and hardship, it was found that spring of the brake shoe was in a broken condition and one of the brake liner was also looked very thinly worn. According to the complainant the vehicle was undergone two services prior to the above incident and the complainant pointed out brake complaint to the second opposite party at the time of vehicle services. The complainant produced letter dated 10/03/2021 issued by the second opposite party to the complainant and same is marked as Ext. A8 documents. The complainant produced copy of bill dated 29/11/2021 issued by the second opposite party to the complainant and marked as Ext. A3 document. The copy of acknowledgement card of the service dated 29/11/2021 also produced by the complainant and marked as Ext. A6 document. It is contended by the complainant that he had already replaced brake shoe and paid for the same. Ext. A3 shows the payment made by the complainant. But in the version and its supporting affidavit filed by the second opposite party has vehemently attacked the contention of the complainant. It is contended by the opposite party that if the subject vehicle is used nearly 9000 kms there will be natural worn-out to the brake liner. The opposite party produced free service coupon and job cards pertaining to the vehicle of the complainant and those documents are marked as Ext. B5 to Ext. B13 documents and same would show that the complainant had approached opposite party different times for the service of the vehicle . Moreover it is pertinent to note that even during the pendency of the this case, the vehicle of the complainant is serviced by the opposite party. Ext. B10 and Ext. B11 documents show that the brake liner was replaced on the request of the complainant even though liner life is not finished. So, when analysing the above mentioned documents and evidences, the Commission finds that no defect can be found on any parts of the vehicle without availing expert evidences. The complainant failed to take any step to bring out evidence of manufacturing defect, if any to the parts of the vehicle. Moreover, reading of entire contents of Ext. A8 document would shows that the opposite party repaired the complaints of the vehicle.
7. The complainant alleged that even during the period of warranty coverage the service centre named centuar, situated at Mannuthy , Thrissur had collected Rs.144/- from the complainant for servicing the vehicle. The complainant compelled to make payment due to non availability of records of the vehicle in the on line site of the opposite party. It is further stated that all records including service history are available in the software of the company. But on the contrary the opposite party contended that the service warranty does not preclude the payment for replaced spare parts. According to the opposite party if any damage is caused to the parts of the vehicle, then the liability goes with the manufacturer. After considering these rival arguments of both sides, the Commission finds that no defect of the spare parts of the vehicle is proved by the complainant. Moreover, the opposite party also argued that the complainant did not produce service book at the time of availing service from Centuar service centre Mannuthy, Thrissur. In this juncture the Commission finds that there is non jointer of necessary party in these proceedings. The Commission cannot pass an order without giving opportunity to the Centuar Service Centre, Mannuthy, Thrissur who issued Ext. A9 document to the complainant.
8. The complainant also alleged that the opposite party sold an old and used vehicle to the complainant. According to the complainant when he examined all documents pertaining to the vehicle purchased from the opposite party, it was found that the insurance coverage of the vehicle end up in June 2021. It is stated by the complainant that he made advance for vehicle on 16/07/2020 and registration of vehicle was done by the opposite party and delivery was effected on 27/08/2020. But the evidences adduced in this proceedings would show that the complainant purchased the subject vehicle after convincing all the details. The change of ownership of the vehicle is done at the behest of the complainant himself. Even prior to the delivery of the subject vehicle , the complainant sold his old vehicle to the opposite party after fixing a rate for the same. The opposite party produced tax invoice of the vehicle issued to the owner who originally purchased the vehicle and same is marked as Ext. B1 document. Ext.B1 document suggests that subject vehicle is purchased by one Madhusoodhanan for Rs.62,268/- on 29/06/2020. The opposite party also produced the affidavit of above mentioned Mr. Madhusodhanan stating that he had purchased the subject vehicle on 29/06/2020 from the opposite party and affidavit is marked as Ext. B2 document. As per the contents of the Ext. B2 documents it finds that Mr. Madhusoodhanan failed to take delivery of the vehicle due to physical discomfort and requested the opposite party to sell the vehicle to another party. The opposite party also produce insurance policy certificate of the vehicle stating the ownership of the vehicle in favour of Mr. Madhusoodhanan and insurance certificate is marked as Ext. B3 document . So, Ext. B1 to B3 documents shows that the original owner of the vehicle was Mr. Madhusoodhanan. The contention of the complainant that he came to know about the date of expiry of insurance coverage of the vehicle was only after 17/02/2021 is not believable and lacking evidences. It is stated by the complainant that on 16/07/2020 he advanced an amount of Rs.40,000/- to the opposite party out of which Rs.25,000/- is the price of old vehicle sold to the opposite party and Rs.15,000/- paid in cash. The complainant paid Rs.10,000/- on 27/08/2020 and balance Rs.10,000/- was paid through cheque. These narrations made in the complainant clearly an indication that he was conversant with the factual situation of the vehicle. The dispute between the parties arises only after the said incident happened while driving to Thrissur. So the Commission finds that the complainant purchased the subject vehicle after convincing the fact that the registration of the vehicle was stood in favour of the original owner. Moreover the contention of the opposite party that he sold the vehicle to the complainant for Rs.60,527/- which included registration charge as well as vehicle tax remained unchallenged by complainant. So the Commission finds that the complainant purchased the vehicle from Madhusoodhanan and not directly from the opposite party. The production of Ext. A4 document and allegation of non receipt OTP services from the opposite party is not substantiated by the complainant with sufficient evidence. The claim of the opposite party for Rs.7,000/- need not considered by the Commission and we find no merit in considering copy of ledger account of the opposite party which is marked as Ext. B4 document. The Commission did not examine the pen drive produced by the opposite party due non service of copy to the complainant by the opposite party. The opposite party is directed to take back the pen drive within one month from the date of receipt of the copy of this order. Even though the complainant questioned the propriety of Ext. B2 document, the Commission cannot go beyond the limit of the very purpose of Consumer Protection Act. So considering the above discussed facts and circumstances of the case, this Commission finds that the complaint lack evidences and hence dismissed.
Dated this 20th day of February , 2023.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1to A8
Ext.A1: Copy of advertisement of the vehicle published in a news paper.
Ext.A2: Copies of bills issued by different dealers of the first opposite party including
the second opposite party.
Ext A3: Copy of bill dated 29/11/2021 issued by second opposite party.
Ext A4: Copy of page No.56 of service manual of the vehicle.
Ext A5: Copy of letter dated 06/10/2021 issued by the complainant to the second
opposite party.
Ext.A6: Copy of letter dated 29/11/2021 issued by the second opposite party.
Ext.A7: Copy of tax invoice dated 23/02/2022 issued by the second opposite party.
Ext.A8: Copy of letter dated 10/03/2021 issued by the second opposite party to the
complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B14
Ext.B1: Copy of tax invoice dated 29/06/2020 issued by the opposite party to Mr.
Madahusoodhanan , Madhu Nivas , Wandoor.
Ext.B2: Affidavit executed by Mr. Madhusoodhanan, Madhu Nivas, Karutheri (P.o),
Wandoor.
Ext.B3: Copy of policy schedule of policy No.3011003120P102977716 issued in favour
of Madhu Soodhanan , Madhu Nivas , Karutheri (P.o), Wandoor.
Ext.B4: Copy of ledger account of the complainant between 01/04/2020 to
30/03/2021.
Ext.B5: Coupon of free service dated 21/09/2020 issued by the opposite party. Ext.
Ext.B6: Job card dated 21/09/2020 pertaining to the service of the vehicle.
Ext.B7: Coupon of free service dated 05/12/2020 issued by the opposite party.
Ext.B8: Job card dated 05/12/2020 pertaining to the service of the vehicle.
Ext.B9: Job card dated 12/08/2021 pertaining to the service of the vehicle.
Ext.B10: Copy of job card dated 29/11/2021.
Ext.B11: Copy of job card dated 25/04/2022 pertaining to the service of the vehicle.
Ext.B12: Coupon of free service dated 01/03/2021 issued by the opposite party.
Ext.B13: Job card dated 01/03/2021 pertaining to the service of the vehicle.
Ext.B14: Pen drive reveal the telephonic conversation between the opposite party
and the complainant.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
