BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Thursday the 17th day of February, 2011
C.C.No 72/10
Between:
Gajjala Ramakrishna,
S/o. Chinna Maddaiah,
D.No.80/11-76-15,
Krishna Nagar,
Kurnool – 518 003. …..…Complainant
-Vs-
1. M/S Meru Auto Mobiles (P) Limited,
Rep. by its Managing Director,
N.H.-7, Santhosh Nagar Post,
Kurnool – 518 004.
2. M/S Tata Motors Limited,
Rep, by its Managing Director,
Bombay House, 24, Homi Mody Street,
Fort, MUMBAI – 400 001.
3. M/S Tata Motors Finance Limited,
Rep. by its Branch Manager,
61-1-6A2,B, V Regent Plaza,
Kallur Road, Besides Sreenivasa Theatre,
Kurnool 518 002. ….…Opposite Parties
This complaint is coming on this day for orders in the presence of Sri. M. Sivaji Rao, Advocate for complainant, and Sri. M.Sanjeeva Reddy, Advocate for opposite party No.1 and Sri P.Madhusudana Reddy, Advocate for opposite party No.2 and 3 upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
C.C. No. 72/10
1. This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying to direct the Opposite parties:-
(A) To return the cost of the vehicle of Rs.3,50,234/- (Rs.61,267/- and Rs.2,88,967/-) with interest @ 12% per annum,
(B) To pay the loss of daily earnings @ Rs.5,000/- per day till
the date of realization,
- To pay a sum of Rs.1,00,000/- towards the compensation for causing mental agony and hardship,
- To direct the O.P.No.3 not to take coercive steps against the complainant for payment of installments till the realization of the amount from OP.No.1 and 2,
- To pass any other order or orders which are deem to be fit and proper in the circumstances of the case.
2. The case of the complainant’s in brief is as under:- On 19-11-2009 the complainant purchased one TATA Ace Magic 7 Seater Vehicle from opposite party No.1. It is manufactured by opposite party No.2. After the purchase the complainant spent Rs.15,000/- towards the body building works. Opposite party No.1 arranged Financial Assistance through its sister concern of opposite party No.2. Opposite party No.1issued free service eligibility certificate to the complainant. The warranty period is one year or 36,000/- K.M. The vehicle has to undergo first free service 4 months after its purchase. But within one week of its purchase the vehicle started giving trouble. The complainant went to opposite party No.1. It gave job cards and bills on 27-11-2009, 30-11-2009, 14-12-2009, 15-12-2009, 18-12-2009 and 06-01-2010. After examining the vehicle the opposite party No.1 admitted the manufacturing defects in the engine and other parts. Opposite party No.1 also replaced engine of the vehicle. Even after the replacement of the engine the vehicle gave trouble. On 06-01-2010 opposite party No.1 took the vehicle to carry out the major manufacturing defects. The vehicle is with opposite party No.1 on the date of filing of the complainant. Due to not running of the vehicle the complainant lost his livelihood. He used to earn Rs.5,000/- per day. The complainant on 23-01-2010 got issued a legal notice to the opposite parties demanding to return cost of the vehicle and to pay the daily earnings at Rs.5,000/- per day. The opposite party issued threatening letter dated 25-01-2010 demanding the complainant to take back the vehicle and pay Rs.100/- per day. The complainant is not liable to pay yard charges to opposite party No.1. The complainant got issued second legal notice dated 15-01-2010. Opposite party No.3 issued two threatening letters demanding the complainant to pay loan installments. The complainant is not able to pay the loan installments as the vehicle is not running on the road. Hence the complainant.
3. Opposite party No.1 filed written version, stating that the complaint is not maintainable. The complainant purchased the vehicle for Rs.2,88,967/-. The warranty period is one year or 36,000 K.M. which ever is earlier. On request of the complainant, opposite party No.1 replaced the engine. The complainant brought his vehicle to opposite party No.1 on 14-12-2009, 18-12-2009 and lastly 06-01-2010. On 06-01-2010 the complainant brought his vehicle to the work shop stating that the vehicle was consuming engine oil high and breaks hard problems. The defects were rectified by opposite party No.1 on 11-01-2010. But the complainant did not take the vehicle inspite of repeated request. Finally on 25-01-2010 opposite party No.1 sent a letter to the complainant requesting to take delivery of the said vehicle as early as possible. After receiving the said letter the complainant has not taken the said vehicle till to day. The complainant altered the chasis by fixing bumper and other extra fittings. Due to the said extra fittings on bumper the engine is unbalanced. If the vehicle carries more than 7 persons it will effect engine. The complainant modified the body of the vehicle to accommodate more than 10 members. The complaint filed complainant with dishonest intention to extract money. The vehicle is ready for running on the road without any problem. There is no deficiency of service on the part of the OP.No.1. The complaint is liable to be dismissed.
Opposite party No.2filed written version, stating that the complaint is not maintainable. The complainant is not a consumer. The transaction is between the complainant and opposite party No.1. There are no merits in the complaint. The vehicle purchased by the complainant is 7 seater capacity. As per the terms and conditions of the warranty card, purchaser should not make modification in the chasis and fix other extra fittings. For modifications made by the purchaser the company is not responsibility. At the time of taking delivery of vehicle by the complainant it was in good condition. There is no deficiency of service on the part of the opposite party No.2. The complaint is liable to be dismissed
Opposite party No.3 filed written version stating that the complainant is not maintainable. On entering into agreement of hypothecation, opposite party No.3 sanctioned a loan of Rs.2,60,000/- to the complainant. The loan amount along with financial charges is repayable in 47 monthly installments of Rs.7,900/- each. The complainant purchased the vehicle with the loan amount sanctioned by opposite party No.3. The complainant paid only one installment and there after he committed default in payment. Complainant committed default in payment of installments. Inspite of notices issued by opposite party No.3 the complainant did not respond. The complainant is not a consumer and the complaint is not maintainable. There is no deficiency of service on the part of opposite party No.3. The complainant is not entitled for any relief. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A23 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B7 are marked and sworn affidavit of opposite parties 1,2 and 3 are filed.
5. Both sides filed written arguments.
6. The points that arise for consideration are:
- Whether there is deficiency of service on the part of the Opposite Parties?
- Whether the complainant is entitled to the reliefs as prayed for?
(c) To what relief?
7. POINT No.1 & 2: Admittedly the complainant purchased TATA Ace Magic 7 Seater manufactured by opposite party No.2, from the first opposite party on 19-11-2009. Opposite party No3 arranged finance to the complainant for the purchase of the said vehicle. The warranty period is one year or 36,000 K.Ms. which ever is earlier. It is also admitted that the complainant gave the vehicle to opposite party No.1 on 14-12-2009, 18-12-2009 and lastly on 06-01-2010 for repairs. It is also admitted that on 25-01-2010 the first opposite party sent a letter to the complainant requesting to take delivery of the vehicle.
8. The complainant filed the complaint against the opposite parties claiming for refund of the cost of the vehicle and for other reliefs. It is the case of the complainant that there is manufacturing defect in the vehicle purchased by him and that it gave trouble immediately after its purchase. The complainant did not take steps to test the vehicle by an expert to find out whether there is manufacturing defect in the vehicle. It is the case of the complainant that the vehicle was having engine problem, breaks problem, pickup problem etc. It is admitted by opposite party No.1 that the complainant brought his vehicle on 14-12-2009, 18-12-2009 and lastly on 06-01-2010. Admittedly the opposite party carried out the repairs and returned the vehicle to the complainant prior to 06-01-2010. No evidence is placed to show that there was manufacturing defect in the engine. No doubt it is admitted by opposite party No.1 that the engine was replaced on the request of the complainant. Merely because the engine was replaced it cannot be concluded that there was manufacturing defect in the vehicle. It is submitted by the learned counsel appearing for the first opposite party that after the purchase of new brand vehicle the complainant made some alterations to the body of the vehicle to transport more than seven persons that due to the said enlargement of the body and as well as carrying more than seven persons some problems arose in the vehicle of the complainant. It is not the case of the complainant that no alterations were made in the body of the vehicle after its purchase. The complainant in his sworn affidavit clearly stated that he spent Rs.15,000/- towards body building works in M/s Viswamatha Bhavani Garage Shop. The complainant filed Ex.A5 evidencing payment of Rs.15,000/- to M/s Viswamatha Bhavani Garage Shop on 10-12-2009. The contention of the opposite party No.1 is strengthened by Ex.A5. As the complainant made alteration to the body of the vehicle to facilitate to carry more than 7 persons the opposite parties 1 and 2 cannot be held responsible. The complainant purchased new brand vehicle from the company. There is no necessity for him to spend Rs.15,000/- to make alterations. According to the complainant he spent Rs.15,000/- for body building of the vehicle. The vehicle is a commercial vehicle. For the problems that arose to the vehicle an account of alteration and over loading the opposite parties 1 and 2 cannot be made liable.
9. It is the case of the complainant that on 06-01-2010 he handed over his vehicle to opposite party No.1 to carry repairs. Ex.A16 is the copy of pre job card issued by opposite party No.1 to the complainant. In Ex.A16 it is mentioned that the customer complaints are:-
Ex.A7 Engine Oil Consumption High
Ex.A16 Fuel Average Low
Ex.B2 Brakes Hard
There is no mention in Ex.A16 that the complainant complained that there was engine problem. The opposite party No.1 after carrying the repairs sent a letter to the complainant on 25-01-2010 stating that the service to the vehicle was completed by 12-01-2010 and requested to take delivery of the vehicle. Admittedly even after the notice Ex.A19 the complainant did not take delivery of the vehicle. The said notice Ex.A19 dated 25-01-2010 was issued before the first opposite party received Ex.A17 notice dated 23-01-2010 got issued by the complainant. As seen from the postal acknowledgement it is very clear that the first opposite party received the copy of Ex.A17 notice on 27-01-2010. The complainant having given vehicle to the first opposite party for repairs on 06-01-2010 got issued Ex.A17 legal notice demanding the opposite parties to refund cost of the vehicle stating that there is manufacturing defect in the engine. As already stated the complainant did not take steps to establish that there is manufacturing defect in the vehicle. It is submitted by the learned counsel appearing for the opposite party No.1 that the vehicle is in good condition at present and that the complainant is wantonly avoiding to take delivery with a bad intention to gain wrong fully. It is not the case of the complainant that the opposite party refused to carry out the repairs to the vehicle. Even at the time of the arguments the learned counsel appearing for the first opposite party has submitted that the vehicle is in good condition and that the complainant is refusing to take back the vehicle. The learned counsel appearing for the complainant has submitted that the complainant is not willing to take back the vehicle from the opposite party even though it is in road worthy condition. The complainant is insisting for refund of cost of the vehicle. As no manufacturing defect is found in the vehicle, the complainant is not entitled for refund of the amount.
10. The learned counsel appearing for the complainant relied on the following decisions in support of his contention that the complainant is entitled for refund of the cost of the vehicle II (2008) CPJ 206 (NC), III (2008) CPJ 119 (NC), II (2008) CPJ 537 (Delhi), III (2008) CPJ 32 (Karnataka). The above cited decisions are not applicable to the facts of the present case on hand for the simple reason that the fault lies with the complainant herein. The complainant having given the vehicle to opposite party No.1 to carry the repairs, now refusing to take back the vehicle which is road worthy condition. The opposite party No.1 repaired the vehicle as per the job card Ex.A16 dated 06-01-2010. There is no negligence on the part of the opposite party No.1. We don’t find deficiency of service on the part of the opposite parties 1 and 2. The complainant who is a defaulter is not entitled to the reliefs as prayed for.
11. Admittedly third opposite party gave finance for the purchase of the vehicle. The complainant handover the vehicle to opposite party No.1 and failed to pay monthly installments due to opposite party No.3. The hire purchase agreement is in between the complainant and opposite party No.3. In case of default in payment of installments it is open to opposite party No.3 to proceed against vehicle for the recovery of the amount due to it. According to the opposite party no.1 the vehicle is in good conditions at present. The complainant is not ready to take back the said vehicle. In the circumstances we think it is just and proper to direct the complainant to take back the vehicle with in one month from the date of order. Failing which the opposite party No.3 is at liberty to proceed against the vehicle for recovery of dues as per the hire purchase agreement.
9. In the result the complainant is directed to take possession of the vehicle from opposite party No.1 within one month from the date of the order. Failing which opposite party No.3 is at liberty to proceed against the vehicle for recovery of the amount due to it as per the terms and conditions of the hire purchase agreement. In the circumstance of the case each party do bear its own costs. .
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 17th day of February, 2011.
MALEMEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of Retail Invoice issued by OP1 dt. 19-11-2009 for Rs.2,88,967/-
Ex.A2. Photo copy of Free Service Eligibility certificate issued by OP1 dt.19-11-09.
Ex.A3 Photo copy of Registration Certificate of vehicle AP21TV1058 dt.07-12-09.
Ex.A4 Photo copy of Warranty certificate bearing NO.775
dt.18-11-2009.
Ex.A5 Photo copy of receipts issued by M/S Viswamatha Bhavani Garage for Rs.11,000/- and 4,000/- dt.10-12-09.
Ex.A6 Photo copy of Cheque of City Union Bank Ltd., Kurnool,
for Rs.6,000/-.
Ex.A7 Photo copy of Cheque of City Union Bank Ltd., Kurnool,
for Rs.10,000/-.
Ex.A8 Photo copy of Cheque of State Bank of Hyderabad,
dt.18-11-09 for Rs.26,500/-
Ex.A9 Photo copy of Cheque of State Bank of Hyderabad,
dt.18-11-09 for Rs.18,967/-
Ex.A10 Photo copy of Retail Invoice issued by Op1
dt. 27-11-2009 for Rs.116/-.
Ex.A11 Photo copy of Retail Invoice issued by Op1 dt. 15-12-2009.
Ex.A12 Photo copy of Retail Invoice issued by OP1 Dt.15-12-2009 for Rs.49/-.
Ex.A13 Photo copy of Retail Invoice issued by OP1 Dt.01-01-2010 for Rs.989/-.
Ex.A14 Photo copy of Retail Invoice issued by OP1 Dt.04-12-2010 for Rs.63/-.
Ex.A15 Photo copy of receipt dt. 24-12-2009 issued by OP3 for payment of first installment for Rs.8,192/-
Ex.A16 Photo copy of Pre Job Card issued by Op1 dt.06-01-2010.
Ex.A17 Office copy of legal notice dt.23-01-2010 along with postal receipts and acks.
Ex.A18 Reply letter of OP2 dt. 08-02-2010.
Ex.A19 Letter from OP1 dt. 25-01-2010.
Ex.A20 Office copy of 2nd legal notice dt.15-01-2010.
Ex.A21 Letter dt. 04-02-2010 issued by OP3.
Ex.A22 Letter dt. 04-03-2010 issued by OP3.
Ex.A23 Photo copy of Policy schedule cum certificate of
insurance, No.61150031090100004563.
List of exhibits marked for the opposite parties:-
Ex.B1 Photo copy of job card-Shop Floor Copy No.JC-MeruAu-KL-0910-005922.
Ex.B2 Photo copy of job card-Customer Copy No.JC-MeruAu-KL-0910-005084.
Ex.B3 Photo copy of job card-Customer Copy No.JC-MeruAu-KL-0910-005185.
Ex.B4 Photo copy of job card-Customer Copy No.JC-MeruAu-KL-0910-005401.
Ex.B5 Photo copy of job card-Customer Copy No.JC-MeruAu-KL-0910-005548.
Ex.B6 Photo copy of job card-Customer Copy No.JC-MeruAu-KL-0910-005612.
Ex.B7 Photo copy of letter dt. 25-01-2010 issued by OP1 to complainant.
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
