IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 21st day of October, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No.54/2011 (Filed on 23.02.2011)
Between:
Somasekharan Nair,
Kalluzhathil House,
Keerukuzhy.P.O.,
Pathanamthitta Dist.
(By Adv. A.M. Aji) ….. Complainant
And:
1. The Manager,
Tata Motors,
Passenger Car Business Unit,
Kd.03, Car Plant, Sec.15 & 15A,
PNTDA, Chikhali, Pune,
Maharashtra.
2. The Manager,
TATA Motors, 3rd Floor,
Tutus Tower, NH Byepass Road,
Palarivattom, Cochin.
3. The Manager,
Kulathumkal Motors,
Service Centre, Market Road,
Kuravankonam, Trivandrum.
(By Adv. Samkoshy counsel for
3rd opp. Party)
4. The Manager,
Focus Motors,
Pathanamthitta Road,
Thekkemala. P.O.,
Kozhencherry.
(By Adv. V. Krishna Menon &
Lalu John) ….. Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed the complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he is the owner of an Indigo Dicor Car manufacturer by the 1st opposite party. The 2nd and 3rd opposite parties are the authorized dealers of the 1st opposite party and the 4th opposite party is the authorized service centre of the 1st opposite party. He booked the said car on 02.04.2007 with the 3rd opposite party and purchased the car from the 3rd opposite party by paying Rs.4,94,240/- along with Rs.15,000/- for insurance and Rs.5,000/- for registration and took the delivery on 20.08.2007. Within a day it was found that the odometer and fuel gauge was not working. Thereafter during 2007 December, at the time of 2nd service at 10000 km., engine packing gaskets were replaced by the 4th opposite party. During 20000 km. the gear box was overhauled by the 3rd opposite party. The car had engine failure, oil spill, starting problem, terrible knocking sound and had defects to clutch cable and break cable. On 09.03.2009 the car got brake down and the 4th opposite party replaced engine head and valves and the timing belt at a cost of Rs.32,000/-. On 22.03.2009 the car again got brake down. 4th opposite party repaired the defects at a cost of Rs.3,143/-. The same problem again happened on 12.11.2009. The complainant had spent Rs. 1,25,000/- for the repairs so far. The brake downs of the car caused major traffic jam and embarrassment for the complainant and his family. The car suffers from manufacturing defect. Many defects were noticed in the car due to bad workmanship. 2nd opposite party promised to replace the defective engine free of cost as the defects were occurred during the warranty period. During 2010 January, the car was again taken to 4th opposite party for repairs. After a duration of almost 8 months, on 02.08.2010 the 4th opposite party issued a letter stating that the car is ready for delivery at a cost of Rs.94,337/-. The complainant requested 1st and 2nd opposite parties for the replacement of a brand new car several time. The car remained for more than one year in the workshop of the 4th opposite party within 45000 km. On all occasions the car runs for sometime after its repairs. Opposite parties finally admitted that the engine of the complainant’s car is defective. The continuous complaint in spite of the repairs clearly shows that there is manufacturing defect or defective workmanship. The period of usage of the car is less than the period which was kept in the work. The practice adopted by the opposite parties is apparently unfair trade practice. The complainant had suffered mental agony and financial loss due to the continuous problems of his car and the opposite parties are liable to the complainant for the same. Hence this complaint for an order directing the opposite parties to discontinue their unfair trade practice and for directing 1st opposite party to take back the car and to refund the cost of the car along with 12% interest from the date of filing of this complaint and for returning the amount of Rs.1,25,000/- collected from the complainant for the repairs along with compensation of Rs.10,000/- for the delayed delivery of the car and compensation of Rs.30,000/- for the mental agony and harassment caused to the complainant. Complainant also prays for allowing Rs.5,000/- as the cost of this proceedings.
3. The 1st opposite party is exparte.
4. Opposite parties 2, 3 and 4 entered appearance and filed separate versions.
5. The main contentions of the 2nd opposite party is as follows:- The complainant filed this complaint by suppressing material facts and the complainant has not adduced any expert evidence for the alleged manufacturing defects of the car. The complainant had failed to follow the instructions given in the owner’s manual which are the causes of the complaint of the car. The complainant had failed to carry out the scheduled services as per the recommended service schedule and as the complainant has not produced any evidence to show that the complainant had regularly serviced the car in any of the authorized service centres of the 1st opposite party. From 31.07.2008 to 23.01.2010 the car was not reported for any recommended service as per the instructions given in the owner’s manual. The car was not got serviced in any of the authorized service centres in between 23051 kms. and 47998 kms. The complainant had violated the terms and conditions of the warranty and hence cannot be bestowed any warranty conditions. The complainant’s car was brought at the workshop of the 4th opposite party for accident repairs which was suppressed by the complainant. Every car manufactured by the 1st opposite party undergoes various quality control tests before despatch. Pre-delivery inspections were also done before selling the car. Whenever the car was brought to the workshop for scheduled services or for any other repairs, complaints of the customers are recorded in the job card. All the works are carried out on the basis of job card. The complainant has purchased the car on or around 22.08.2007 and the car had covered around 47998 kms. till 23.01.2010 which means the said car is running about 1599 kms. per month. The said fact proves that the car is in absolute roadworthy condition and the jobs carried out are minor and running repairs. Opposite parties promptly attended the complaints reported by the complainant under the warranty as and when reported. The warranty given at the time of sale has already been expired and the repairs and replacements can be undertaken on payment. There is no manufacturing defect and there is no deficiency in service on the part of the answering opposite party as alleged by the complainant. This complaint is filed with an ulterior motive and malafide intention to cause harassment and prejudice to the opposite parties. The alleged complaints regarding the breakdown, wobbling, engine failure, oil spill, knocking sound, problems of the clutch cable and break cable were not seen recorded in the service history neither by the complainant nor by the workshop. Any gear box overhauling was performed within 20000 kms. or thereafter. As per the job cards the complaints were running complaints and recommended services which are required for extensive usage and improper maintenance. The car was never brought to the authorized service centres for almost 30 months. The last repairs completed and the car was ready for delivery on 29.07.2010 and it was intimated to the complainant. But he did not turned up to take the delivery of the car for the best reasons known to him. Opposite parties never promised to replace the car. The said repairs are also not for rectifying any manufacturing defect and the said complaints are due to the operational and maintenance fault on the part of the complainant and there is no manufacturing defect as alleged by the complainant. The complainant is not entitled to raise manufacturing defects at a belated stage of using the car for more than 3 years. If there was any manufacturing defect, the car would not have covered more than 47000 kms. Whatever grievance brought out by the complainant was attended and rectified satisfactorily under the warranty policy free of cost. With the above contentions, the 2nd opposite party prays for the dismissing the complaint with their cost.
6. The main contentions of the 3rd opposite party is that the complainant placed the booking on August 2007 and not in April 2007 as claimed by the complainant. The car was delivered on 20.08.2007 after getting the loan amount from the ICICI bank. On December 2007, belts and engine seals updation are done as a gesture of goodwill and the gasket and poly vee belt are replaced under warranty. 3rd opposite party had done all works with utmost care and with skilled mechanics. The averments in Para 6, 7, 8, 10 and 11 are not known to the answering opposite party. The car given by the opposite party is a brand new car. 3rd opposite party had not committed any unfair trade practice as alleged by the complainant. No losses has been caused to the complainant due to any of the acts of the 3rd opposite party. The complaint is baseless and none of the reliefs prayed for in the complaint are allowable. With the above contentions, 3rd opposite party prays for the dismissal of the complaint with their cost as they have not committed any deficiency in service or unfair trade practice.
7. The main contention of the 4th opposite party is that this complaint is barred by limitation as the complaint is filed on 22.02.2011 whereas the car in question was purchased on 20.08.2007. The complainant has not raised any allegation of deficiency in service against this opposite party and hence the impleadment of this opposite party is unnecessary and hence there is mis-joinder of unnecessary party. This opposite party is not an authorized dealer of the 1st opposite party and this opposite party is the authorized service centre of the 1st opposite party. Whenever the complainant had brought his vehicle to this opposite party this opposite party had attended all the complaints under warranty to the satisfaction of the complainant. The complainant had been charged only for the consumables and wear and tear items which are not covered under the warranty. On all occasions, the complainant had taken back the vehicle with full satisfaction by paying the amounts charged without any objection. On 23.01.2010 the complainant brought his car with complaints of starting trouble and for checking the nozzle pressure, oil consumption, charging the battery and for carrying out the interior cleaning. On inspection it is noticed that 4 injectors, timing belt, high pressure pump and starter motor were faulty and it is to be replaced. As the warranty has expired the complainant had been informed of these facts and on the basis of his approval, necessary parts were replaced and the vehicle was made delivery on 29.07.2010 and it was informed to the complainant. However, the complainant has not turned up till date or settled the bill amount. The averments made in paragraph 12 of the complaint is not aware of this opposite party and this opposite party has not committed any deficiency in service and unfair trade practice or caused any inconvenience and mental agony to the complainant as alleged by them. There is no cause of action against this opposite party. The complainant is not entitled to the reliefs sought for in the complaint. With the above contentions, 4th opposite party also prays for the dismissal of the complaint with their cost.
8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
9. The evidence of this complaint consists of the oral testimony of PW1, PW2, CW1 and Exts.A1 to A7 and C1 and C2. After closure of evidence, 4th opposite party filed a detailed argument note and both sides were heard.
10. The Point:- The complainant’s allegations can be summarized as follows:- Opposite parties delayed the delivery of the car for about 4 months from the date of booking in spite of their assurance of delivering the car within 24 hours from the date of booking. The car delivered to the complaint is having manufacturing defects and the 4th opposite party, the authorized service centre, collected Rs.1,25,000/- as repairing charges for repairing its manufacturing defects and the defects caused due to poor workmanship done by them within the warranty period.
11. In order to prove the case of the complainant, the complainant and one witness filed proof affidavits in lieu of their chief examination along with 8 documents. On the basis of the proof affidavit, complainant and witness were examined as PW1 and PW2 and the documents produced were marked as Exts.A1 to A7 series. Ext.A1 is the tax invoice dated 20.08.2007 for Rs.4,94,240/- issued by the 3rd opposite party in the name of the complainant. Ext.A2 is the copy of the R.C Book of the car in question. Ext.A3 is the comprehensive insurance policy certificate of the car in question valid from 18.08.2007 to 17.08.2008 issued by Bajaj Allianz Insurance Co. Ltd. Ext.A4 is a copy of the letter dated 30.12.2009 issued by the complainant to the opposite parties. Ext.A4(a) is the postal receipt of Ext.A4. Ext.A5 series (A5 to A5(i) ) are the bills issued by the opposite parties for the labour charges and spare parts paid by the complainant from 15.12.2007 to 03.11.2009. Ext.A6 is the letter dated 02.08.2010 issued by the 4th opposite party in the name of the complainant demanding the payment of Rs.94,337/- for the repairs of the vehicle. Ext.A7 and A7(a) are the bills for the purchase of new tyres for the complainant’s vehicle from Shama Tyre Centre, Pathanamthitta.
12. Apart from the above evidences, the expert commissioner appointed by this Forum who inspected the vehicle and filed his reports and he was examined as CW1 and his reports are marked as Exts.C1 and C2. Ext.C1 is the interim report dated 28.01.2012 and C2 is the final report dated 23.01.2013.
13. On the other hand, the contentions of the opposite parties 2 to 4 are more or less the same which can be summarized as follows: According to them, there is no delay in delivering the car. According to them, the payment of the price of the car was effected by the complainant on 20.08.2007 and the same day itself the car was delivered to the complainant. They denied the allegation of the complainant that the car is having manufacturing defect. According to them, the car delivered is without any manufacturing defect and prior to dispatch and delivery of the car, they have conducted all types of pre-delivery checkups. Whatever bills charged against the complainant in connection with the repairs of the complainant’s car are for the repairs and replacements which are not covered under the warranty. The complainant never followed the instructions given in the user’s manual for using the car and he had not carried out the periodical services properly at any of the authorized service centres. The complainant’s car was not brought for any recommended services in between 31.07.2008 to 23.01.2010 and during that period the car had run about 25000 kms. The reported major complaints of the complainant’s car was not manufacturing defect and it occurred due to the only reason for not carrying out the recommended periodical services. All the repairs done by the opposite parties are running repairs which are required to be carried out due to regular, continuous, extensive and faulty usage of the said car. Out of the repairs, one of the repairs was for the complaints occurred due to an accident. None of the repairs are for rectifying any manufacturing defect. At last the car was brought on 23.01.2010 at 47998 kms. for the purported complaints of starting problem bumper corner painting and poor pick-up. As the warranty was expired the complainant was informed that necessary jobs would be carried out on paid basis and requested his approval to start the jobs. After getting approval from the complainant the alleged complaints were rectified by the overhauling the starter, high pressure pump and injector and replacing bearing armature brush, timing belt, outer gasket washer, fuel filter and cable tie etc. and the car was ready for delivery on 29.07.2010 and it was communicated to the complainant. But the complainant did not turned up to take the delivery of the car or to pay the repairing charges of Rs.94,338/-. Thereafter, the complainant filed this complaint with baseless allegations. If there had been any manufacturing defect, the car would not have run 49000 kms. So the opposite parties argued for the dismissal of the complaint.
14. In order to prove the contentions of the opposite parties, they have not adduced any oral or documentary evidence. But they have cross-examined the complainant and the witness.
15. On the basis of the available materials on record, it is seen that the parties have no dispute with regard to the sale and the repairs of the vehicle. The 1st dispute is with regard to the delay in delivering the car. According to the complainant, at the time of booking the car, opposite parties promised to deliver the car within 24 hours. But they delivered the car after 4 months from the date of booking. According to the opposite parties, the car was delivered on the day on which the price of the car was received by them and hence there is no delay in the delivery of the car as alleged by the complainant. But the complainant has not adduced any evidence to show that he had booked the car in the 1st week April 2007. Further Ext.A1 tax invoice, clearly shows that the payment of the price of the car was given only on 20.08.2007 and as per Ext.A2 R.C. Book particulars the date of delivery of the car is shown as 20.08.2007. So we find that the above said allegation of the complainant will not stand.
16. The next dispute is that the car had manufacturing defects. The car was purchase on 20.08.2007. But the complainant raised such an allegation, at first, only on 30.12.2009 vide Ext.A4 letter to the opposite parties. Further, the complainant filed this complaint alleging manufacturing defect only on 23.02.2011. If there had been any manufacturing defect to the complainant’s car as alleged by the complainant it would have been realized within a short span of time from the date of its purchase. The complainant is relying Ext.A5 series bills and invoices for establishing his allegation of manufacturing defect. The delay in raising the allegation of manufacturing defect, the delay in filing the complaint alleging manufacturing defect and the repairs done by the opposite parties as per Ext.A5 series invoices and the non-production of any evidence showing that he had carried all periodical services promptly as per owner’s manual etc. clearly shows that the allegation of manufacturing defect will not stand. The non-production of any evidence for the periodical recommended services and the following deposition of CW1, “periodical service IrXy-ambn sN¿msX Ccp-¶m hml-\-¯n\v Engine XI-cmÀ DÄs¸-sS-bpÅ complaints DmIpw”, are very pertinent in view of the contention of the opposite parties that the complainant has not car5ried out the periodical services promptly in accordance with directions given in the owner’s manual and the alleged complaints are due to the reason of not carrying out the periodical services. So we find that the allegation of manufacturing defect is not sustainable.
17. The next dispute is that opposite parties unnecessarily collected Rs.1,25,000 from the complainant during warranty period for repairing the manufacturing defects and the defects caused due to poor workmanship. But on a perusal of Ext.A5 series invoices it is seen that repairs done vide the said documents are not connected with any manufacturing defects or for the defects occurred due poor workmanship. Ext.A5 series repairs are for running repairs and accident repairs and are not covered under warranty. So the allegation in this regard also found not sustainable.
18. Therefore and in the above circumstances, we could not find any unfair trade practice or deficiency of service against the opposite parties in this regard.
19. However, there is no evidence justifying 4th opposite party in retaining the car in their workshop from January 2010 to August 2010 in the name of certain works and making a demand for an amount of Rs.94,338/- for the works done as per job card No.7331 dated 23.01.2010. 4th opposite party has not adduced any evidence in this regard. Available evidence shows that the vehicle was in running condition when it was brought to the workshop. What is the reason for retaining the vehicle for absent 8 months in the workshop and charged an amount of Rs.94,338/-. It is not believable in the absence of any cogent evidence. They further claimed an amount of Rs.58,128/- for the repairs done as per the direction of the commissioner so as to give the vehicle in running condition for the inspection of the commissioner. This claim is also not supported with any cogent evidence. It may be true that the vehicle in question was lying idle for about 1 ½ years. Why they kept the vehicle in such a way so as to deteriorate its condition even after the filing of this complaint. What is their right to demand garage rent of Rs.30,240/- after keeping the vehicle as isolated and unattended. If they have kept the vehicle in their garage in a good manner, deterioration would not have been occurred. It is also not believable that a vehicle repaired by spending Rs.94,338/- required another Rs.58,128/- for its further repairs so as to give the vehicle in running condition even if it is laid as idle for some time in a full-fledged workshop of the 4th opposite party. So we find no merit in the claim of Rs.1,82,706/- put forwarded by 4th opposite party in the name of repairing charges and garage rent. However we are not inclined to disallow the entire claim of the repairing charges as there is no dispute that they have carried out certain repairing works. But they are not entitled to get the garage rent in the circumstances of this case. Therefore and in the absence of any cogent evidence from either side, either for supporting or for challenging the claim for the repairing charges, both parties are liable to suffer to a certain extent. So we are allowing 50% of the repairing charges of Rs.1,52,466/- and the complaint is liable to pay the same.
20. In the result, this complaint is partly allowed thereby 4th opposite party is allowed to collect from the complainant and the complainant is directed to pay Rs.76,233/- (Rupees Seventy Six Thousand two hundred and thirty three only) to the 4th opposite party within 20 days from the date of receipt of this order, failing which 4th opposite party is allowed to realize the said amount with 12% interest from today. On compliance of this order, complainant is allowed to receive back the bond from this Forum, executed by him as per order in I.A.18/13.
21. In the nature and circumstances of this case, no orders for compensation and cost.
Declared in the Open Forum on this the 21st day of October, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : A.N. Somasekaran Nair
PW2 : Sasi. C.K
Exhibits marked on the side of the complainant:
A1 : Tax invoice dated 20.08.2007 for Rs.4,94,240/- issued by the 3rd
opposite party in the name of the complainant.
A2 : Photocopy of the R.C Book of the car.
A3 : Certificate cum policy schedule of the car.
A4 : Copy of the letter dated 30.12.2009 issued by the complainant
to 1st opposite party.
A4(a) : Postal receipt of Ext.A4.
A5 series (A5 to A5(i) ) : Bills issued by the opposite parties for the labour
charges and spare parts.
A6 : Letter dated 02.08.2010 issued by the 4th opposite party in the
name of the complainant.
A7 & A7(a) : Bills for the purchase of new tyres.
Witness examined on the side of the opposite party: Nil.
Exhibits marked on the side of the opposite party: Nil.
Court Witness:
CW1 : Prakash Babu
Court Exhibts:
C1 : Interim report dated 28.01.2012
C2 : Final report dated 23.01.2013
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Somasekharan Nair, Kalluzhathil House, Keerukuzhy.P.O.,
Pathanamthitta Dist.
(2) The Manager, Tata Motors, Passenger Car Business Unit,
Kd.03, Car Plant, Sec.15 & 15A, PNTDA, Chikhali, Pune,
Maharashtra.
(3) The Manager, TATA Motors, 3rd Floor, Tutus Tower, NH
Byepass Road, Palarivattom, Cochin.
(4) The Manager, Kulathumkal Motors, Service Centre,
Market Road, Kuravankonam, Trivandrum.
(5) The Manager, Focus Motors, Pathanamthitta Road,
Thekkemala. P.O., Kozhencherry.
(6) The Stock File.
