Date of Filing : 02.07.2018
Date of Disposal: 27.10.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.30/2018
THIS THURSDAY, THE 27th DAY OF OCTOBER 2022
M/s.Bharatham Stores,
Rep. by Thirumani,
No.293, K.H.Road,
Aynavaram, Chennai -600 023. .........Complainant.
//Vs//
1.M/s.Popular Mega Motors Private Limited,
Commercial Vehicle Dealer,
No.173, Mount Poonamallee Road,
Kattupakkam, Chennai 56.
2.M/s.Tata Motor Limited,
20th Floor, One Indiabulls Centre,
Tower 2 A, 841, Senapathi Bapat Marg,
Elphinstone Road, Mumbai 400 013.
3.The Service Manager,
Commercial Vehicle Dealer,
No.173, Mount Poonamallee Road,
Kattupakkam, Chennai 600 056. ...Opposite parties.
Counsel for the complainant : M/s.S.Madhusudanan, Advocate.
Counsel for the 1st opposite party : M/s.G.Abraham Prabhu, Advocate
Counsel for the opposite parties 2&3 : Exparte
This complaint is coming before us on various dates and finally on 17.10.2022 in the presence of M/s.S.Madhusudanan Advocate, counsel for the complainant and M/s.G.Abraham Prabhu Advocate, counsel for the 1st opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY MR.P.MURUGAN – MEMBER-II.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in selling defective vehicle along with a prayer to direct the opposite parties to replace the defective vehicle supplied to the complainant by supplying new vehicle or to refund the entire cost of the vehicle and money spent by the complainant for service in total Rs.7,25,000/- to the complainant and to pay a sum of Rs.15,000/- towards cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
The petitioner has bought a vehicle TATA SUPER ACE MINT BS IV from the 1st opposite party by paying advance amount of Rs.10,000/- dated 25.12.2015 and balance full amount of Rs.5,77,782/- on 31.12.2015. This amount includes cost of vehicle, Insurance premium and Registration cost. Accordingly the vehicle was registered with Central RTO Office, Chennai -23 on 06.01.2016 with vehicle registration No.TN 01 AZ 3575. The insurance for the said vehicle was done on 05.01.2016 before RTO registration of the vehicle with ICICI Lombard General Insurance vide Policy No.3003/TM-00354912. The vehicle was handed over on 06.01.2016 and duly serviced at opposite party’s service centre. On 26.12.2017 the vehicle suddenly stopped on road and the complainant had informed the service centre of the opposite party and on 28.12.2017 a mechanic from service centre inspected the vehicle and advised to take the vehicle to the service centre for further action. But as such the mechanic did not take the vehicle for service the complainant has handed over the vehicle at service centre on 03.01.2018 at 09.30am. Due inspection report vide serial No.10622 was issued by the service centre. The vehicle was taken for service on 06.01.2018 and on 25.01.2018 the opposite party has sent an invoice for Rs.1,19,372/- vide invoice No. IPMAK 171800613 dated 25.01.2018 for the service charge of the said vehicle, which includes spare parts. After a discount of Rs.1372/- the petitioner has paid Rs.1,18,000/- and taken delivery of the vehicle on 25.01.2018. It is alleged by the complainant that the opposite party has purposely delayed the service of the vehicle though handed over on 03.01.2018/06.01.2018, the service invoice raised on 25.01.2018 to evade the warranty period which ends up on 06.01.2018. The contention of the complainant is that the vehicle has covered 48921 km as on 03.01.2018 and as per warranty the vehicle would be repaired at free of cost either as per 24months period or 1,00,000kms which ever is earlier from the date of purchase. The service was carried out on 25.01.2018 to avoid the warranty period service as stated by the complainant. In the meanwhile the vehicle was serviced at the opposite party service centre on 12.03.2018 by paying Rs.3882 but the vehicle developed fault again and handed over to the opposite party on 21.03.2018 for which the estimation of expenses would be Rs.30,000/- and the petitioner has not given consent or taken delivery of the vehicle. The petitioner has issued a legal notice dated 13.04.2018 in this regard to set right the vehicle or to replace the vehicle since he has spent Rs.1,48,094 on service of the vehicle form the date of purchase. The petitioner states that the act of the opposite party has caused mental agony and the loss incurred by him and to the negligence of the opposite party. Thus the present complaint was filed, aggrieved by the act of the opposite parties, by the complainant for the following reliefs as mentioned below;
To replace the defective vehicle supplied to the complainant by supplying new vehicle or to refund the entire cost of the vehicle and spent by the complainant for service in total Rs.7,25,000/- to the complainant;
To pay a sum of Rs.15,000/- towards cost of the proceedings to the complainant.
Crux of the defence put forth by the 1st opposite party:-
On the other hand, the 1st opposite party clearly says that the vehicle was sold in the year December 2015 and has been in use for more than two years, within this period the vehicle was serviced to the utter satisfaction of the complainant. On 03.01.2018 the vehicle with mileage reading of 48921 was received for service and it was noticed that a few parts in the engine were damaged due to wear and tear and also the vehicle was serviced by different service centre other than their service centre. The said facts were informed to the complainant who had admitted to the reason upon which the fault has occurred. Also, the 1st opposite party had informed the complainant that the warranty period for the vehicle has expired as early as 31.12.2017. Further the service of the vehicle was not carried out periodically in full year of 2017. The service carried out as on 25.01.2018 and on 12.03.2018 is up to the satisfaction of the complainant, say the 1st opposite party to the complainant. Service requirement of the vehicle as on 21.03.2018 of the vehicle which was serviced and kept ready for delivery as on 29.03.2018 raising a service bill of Rs.4974/- but the vehicle was not taken delivery by the complainant alleging that the warranty period is within and it has to be serviced free of cost. In fact on the inspection of the vehicle, it is found that the vehicle was fuelled with adultered fuel which spoils the life of the vehicle as stated by the 1st opposite party. The vehicle was ready for delivery and the complainant was requested to take delivery on 05.06.2018 and 05.07.2018 but not taken delivery by the petitioner purposefully.
The complainant filed proof affidavit and documents Ex.A1 to Ex.A7 were marked on their side. On the side of 1st opposite party proof affidavit was filed and documents Ex.B1 & Ex.B7 were filed by them. Despite service of notice the opposite parties 2 & 3 did not appear before this commission hence they were called absent and were set exparte for non appearance and non filing of written version within the mandatory period as per stature.
Point for consideration:-
Whether the complaint is maintainable before this commission?
Whether the complainant has successfully proved the deficiency in service against the opposite parties in servicing his vehicle?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Tax Invoice issued by the 1st opposite party dated 31.12.2015 was marked as Ex.A1;
Renewal notice issued by ICICI Lombard General Insurance Company Limited dated 05.12.2016 was marked as Ex.A2;
Copy of Registration Book was marked as Ex.A3;
Inspection report issued by the 1st opposite party dated 03.01.2018 was marked as Ex.A4;
Tax Invoice issued by the 1st opposite party for the payment of service charge for Rs.1,18,000/- dated 25.01.2018 was marked as Ex.A5;
Legal notice issued by the complainant to the 1st opposite party dated 13.04.2018 was marked as Ex.A6;
Copy of amount spent for serving of vehicle for Rs.26,212/- was marked as Ex.A7;
On the side of the 1st opposite party the following documents were filed in support of their contentions;
Warranty- Terms and Conditions was marked as Ex.B1;
Tax Invoice issued by the 1st opposite party dated 31.12.2015 was marked as Ex.B2;
Job Card(series) were marked as Ex.B3 & Ex.B4;
Legal notice issued by the complainant dated 13.04.2018 was marked as Ex.B5;
Letter issued by the 1st opposite party to the complainant dated 05.06.2018 was marked as Ex.B6;
Reminder letter issued by the 1st opposite party to the complainant dated 05.07.2018 was marked as Ex.B7;
The 1st opposite party has raised a question of maintainability of the complaint alleging that the vehicle was purchased for commercial purpose. By citing various decisions it was submitted by the complainant that the vehicle is used to transport furniture and the business was done in a small scale to earn his livelihood. It seems that the said explanation by the complainant is acceptable and no evidence was produced by the opposite party to disprove the same to show that the complainant was doing the business in a large scale as an Commercial Establishment. In such circumstances we hold that the complaint is filed before this commission is maintainable under section 2(i) (d) of the definition of the Consumer Protection Act 2019. Thus we answer the point accordingly.
Point No.2:-
The crux of the arguments advanced by the learned counsel appearing for the complainant is that the vehicle was purchased on 31.12.2015 for a sum of Rs.5,77,782/- and that on 26.02.2017 the vehicle has suddenly stopped which was duly informed to the 1st opposite party on 28.02.2017. It is stated that the warranty period expired on 31.12.2017 and as per the terms it is 1,00,000/- kms or 24months service period which is considered to be the period of warranty. It is stated that the vehicle was not use in for any commercial purpose and the vehicle at present is with the 1st opposite party.
On the other hand the 1st opposite party’s counsel argued that the vehicle has run for 10381kms as on 26.09.2018 from the date of sale i.e., 31.12.2015. It is his contention that the warranty was covered to the vehicle only as per clause 14 (ii) & (iii). Thus argued that for more than two years the vehicle was running without any complaint, further, the vehicle was serviced by different service centres and not with the 1st opposite party alone and hence the warranty clause was not followed by the complainant. Further the warranty period has expired as early as on 31.12.2017 and as per the service manual the complainant must have serviced his vehicle for every four months for the period of two years to avail any warranty for the vehicle and admittedly the vehicle was not serviced for whole years of 2017. However when the complainant approved for the cost of repairs, job was carried out and the vehicle was handed over to the complainant on 25.01.2018. Before taking delivery of the vehicle, the vehicle was test driven and upon payment of Rs.1,19,372/-the vehicle was delivered to the complainant. Thus the complainant having acknowledged the expiry of the warranty period now cannot raise the issue that the vehicle is within the warranty period. On 12.03.2018 the vehicle was again serviced on payment of Rs.3,882/-. On 21.03.2018 when the vehicle was brought for service alleging that there were pick up issues, after thorough examination, it was found that the fuel system was adulterated causing damage to the vehicle and the fuel tank and fuel lines were cleaned and serviced and the vehicle was made ready for delivery on 29.03.2018 at a cost of Rs.4,974/-which was demanded from complainant. However, the complainant demanded for warranty extension and even than it was explained to the complainant that 24 months period had lapsed in December 2017 itself and the warranty was over. The complainant refused to take the delivery of the vehicle. It was also submitted that reminder was also sent to the complainant to get the vehicle delivery but the complainant instead of taking delivery of the vehicle had chosen to file in complaint before this commission. Thus he sought for the complaint to be dismissed.
On perusal of the pleadings and material evidences it is seen that the vehicle though purchased on 31.12.2015 has run around more than 10,000 kms as on 26.09.2018 as rightly pointed out by the opposite opposite parties. In the service check list it is seen that because of “kerosene mixed with diesel leads to engine hunting problem happened“ and it is further seen that the fuel system was cleaned. Vide the Job Card dated 29.03.2018 it has been informed to the customer that the vehicle was made ready and delivery to be taken on payment of Rs.4,974/-. For the defence raised by the opposite party that the vehicle was not serviced with them and hence we have forfeited the warranty clause, the same was not disputed by the complainant. Further clause 14(8) which reads as that the vehicle when run on an adulterated fuel or lubricant the warranty will not applicable has to be taken into consideration as in the present case it is mentioned that kerosene mixed with fuel as per service check list. Further it is seen that the reminder dated 05.07.2018 was also sent to the complainant vide Ex.B2. However it is seen that the complainant has failed to take delivery of the vehicle after payment of Rs.4,974/- from the 1st opposite party. In such circumstances, the complainant cannot allege that the vehicle was not delivered by the oppoisite parties. It is also seen that vide all the job cards submitted by the 1st opposite party the complainant had used only paid service and it is also made clear vide clause 1 of the warranty terms and conditions that the warranty shall be for 24 months or 1,00,000kms whichever is earlier from the date of sale of the vehicle. In such circumstances the submission made by the opposite party that the vehicle was out of warranty period is also acceptable. In the facts and circumstances this commission comes to a conclusion that no deficiency in service or unfair trade practice could be imposed upon the opposite parties as the complainant did not prove any manufacturing defect in the vehicle sold to him nor any deficiency in service by the 1st opposite party as it is evident that the vehicle was serviced properly at all times when entrusted with them. It is also proved that on the last occasion the vehicle was serviced and made ready but it is only the complainant who did not taken the delivery of the vehicle. Thus we answer the point accordingly holding that the complainant failed to prove any deficiency in service on the part of the opposite parties.
Point No.3:-
As we have held above that the complainant had failed to prove any deficiency in service on the part of the opposite parties, he is not entitled to any reliefs as claimed in the complaint from the opposite parties. Thus we answer the point accordingly.
In the result, the complaint is dismissed. No order as to cost.
Dictated by the Member-II to the steno-typist, transcribed and computerized by him, corrected by the Member-II and pronounced by us in the open Commission on this the 27th day of October 2022.
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MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 31.12.2015 Tax Invoice. Xerox
Ex.A2 05.12.2016 Renewal notice. Xerox
Ex.A3 ............... RC Book. Xerox
Ex.A4 03.01.2018 Inspection report. Xerox
Ex.A5 25.01.2018 Tax Invoice Xerox
Ex.A6 13.04.2018 Legal notice issued by the complainant to the 1st opposite party. Xerox
Ex.A7 .............. Copy of amount spent for serving of vehicle for Rs.26,212/- Xerox
List of documents filed by the 1st opposite party:-
Ex.B1 ................. Warranty-Terms and Conditions. Xerox
Ex.B2 31.12.2015 Tax Invoice issued by the 1st opposite party. Xerox
Ex.B3 ............... Job cards Xerox
Ex.B4 .............. Job cards. Xerox
Ex.B5 13.04.2018 Legal notice issued by the complainant. Xerox
Ex.B6 05.06.2018 Letter issued by the 1st opposite party to the complainant. Xerox
Ex.B7 05.07.2018 Reminder letter issued by the 1st opposite party to the complainant. Xerox
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MEMBER-II PRESIDENT
