Tamil Nadu

South Chennai

CC/250/2019

P Arularasu - Complainant(s)

Versus

M/s Popular Vechicle and Services Ltd - Opp.Party(s)

P Arularasu

05 Jan 2023

ORDER

Date of Complaint Filed : 05.09.2019

Date of Reservation      : 23.12.2022

Date of Order               : 05.01.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:  TMT. B. JIJAA, M.L.,                                          : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,             :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,       : MEMBER II

 

CONSUMER COMPLAINT No.250 /2019

THURSDAY, THE 5^th DAY OF JANUARY 2023

Mr.Arularasu,

Son of Paramadoss,

No.2, Kamaraj street Pallikaranai,

Chennai-600042.                                                                                                                    ... Complainant

..Vs..

1.M/S Popular Vehicle and Services Ltd,

  (Authorized Maruthi Dealer),

  Old No. 155. New No 123,

  Ponranjitham Complex,

  Medevakkam Main Road,

  Keelkattalai,

  Chennai-600112.

 

2.Mr.N.Ponnusamy,

   Deputy Region al Manager,

   M/S Popular Vehicle and Services Ltd,

   (Authorized Maruthi Dealer),

   Old No. 155 New No. 123 Ponranjitham Complex,

   Medevakkam Main Road, Keelkattalai,

   Chennai-600112

 

3.Maruthi Suzuki India Ltd,

   Rep. by its Director,

   7^th Floor, Capital Towers,

   No.180,Kodambakkam High Road,

   Nungambakkam, Chennai-600 034.                                                                                     ...  Opposite Parties

******

Counsel for the Complainant                       : Party in Person

Counsel for the 1^st and 2^ndOpposite Parties   : Exparte

Counsel for the 3^rdOpposite Party                : M/s. S. Ramasubramaniam

and Associates

        On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the 3^rdOpposite Party, we delivered the following:

ORDER

Pronounced by  Member-I, Thiru. T.R.Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to refund the amount paid by the Complainant to the Opposite Parties 1 & 2 and a sum of Rs.4,944/- and to rectify the defects of pulling problem caused by the 1^stOpposite Party in the vehicle Maruthi Eeco bearing Reg.No.TN14 J2667 and to pay the Complainant Rs.2,00,000/- as  compensation for loss of land, hardship, mental agony, pain & sufferings.

2.     The averments of Complaint in brief are as follows:-

 The Complainant is the owner of the Maruthi Eeco car bearing Reg No. TN 14 J 2667 purchased in the month of December 2016 from the Popular Vehicles and Services Ltd, at No 9&10 Bala Nagar, Velachery Main road. Pallikaranai Chennai-600100 from the date purchase of the vehicle it was started giving problem in pick up and idling, the Complainant made complains with the Pallikaranai Popular office on many occasions and also made complaints with the Keelkattalai Service Centre in each and every services. The Complainant had availed all the 3 free services and also took up paid services. The services were not satisfactory. On 05.04 2019, He gave the vehicle to the Keelkattalai Services centre in a very good condition, there was no complaints except the usual pick up and idling problems which is prevailing there from the inception of purchase. After three days he moved the vehicle out and found out by driving that the vehicle was pulling on the left side and the tyres starting erasing one side, the vehicle could not be driven in safe and usual manner. His right hand and shoulder started giving him pain in the muscles and back as he had to use more strain and power for controlling the vehicle from pulling on the left side while driving.He is a practicing a Advocate, he used to drive the vehicle himself, he has not engaged any driver, the vehicle has just finished 18000 Kms on that day. The vehicle was kept with in his direct control and care. As soon as he noticed the problem on the very first drive of the vehicle after the service,he immediately complained with the customer service centre of the Popular vehicles at Keelkattalai by phone they asked to bring the vehicle so he took the vehicle along with his son to the first Composite Party service centre, the 1^st Opposite Party has given back the vehicle next day without rectifying the fault, but assured that the fault was rectified, on that day he was made to wait until 9 pm in the workshop and again the problem was not rectified the 2^nd Opposite Party and the floor in charge Mr. Pavendar tried to put blame on him stating that the chassis was having some problem, but the 1^stOpposite Party has never told such existence of the problem at the time of taking delivery or giving back his vehicle through the 1^st Oppose Party's driver, or at the time of subsequent complaints made by him. His vehicle never met with any accident with the vehicle and he never dasher against any hard surface, there was no chassis fault in his vehicle until. The 1^st Opposite Party had charged the Complainant Rs.4944.00 for various reasons and never did any service to the vehicle. The 1^st Opposite Party has charged Rs 800/- upholstery cleaning but actually there was no cleaning at all. The personnel working at the Opposite Party office did not take any responsibility to rectify the fault and gave evasive replies each and every time. On 03.07.2019 the Complainant spoke with Territory Manager and the 2^nd Opposite Party through phone and they have also assured of rectifying the fault but failed to do it until this day. The 1^st Opposite Party through their Telecallers used to call to the Complainant through phone to come for vehicle service after taking the vehicles for service they never do any proper service. He asked the 1^st Opposite Party to do dent removing work on the right side door the Opposite Party asked Rs 17500/- to complete the work by changing the new door. But did not make any effort to repair it, whereas the outside mechanical shops have just asked Rs 3500/- to repair it with painting and tinkering. The Authorized dealers are charging exorbitant amount without any justifiable reason or good conscience. The matter was also taken to the knowledge of Ms.Kavitha the customer care manager,but there is no use. The 1^st Opposite Party has not even done the basic service of changing the coolant, soon after the service. He was shocked to see that the coolant is much below the line and purchased it from outside and filled it. Totally the service of the 1^st Opposite Party is a waste expense. They are not deserved for the amount paid to them by the Complainant. At the time of handing over the vehicle after the service the 1^st Opposite Party has not given back the old spark plugs that they have said to have replaced with 4 new ones, but they have charged a sum of Rs 350/-. Like wise the coolant was never replaced but they have charges Rs.354/-. The act of Opposite pares is a clear case of deficiency of service and negligence in carrying out their duty to the customers who are paying money the Opposite parties are liable for sole actions under Consumer Protection Act for rectification and damages. He has been harassed by the Opposite parties for which the Complainant entitled for the compensation of Rs 2 Lakhs. He has been put to lot of mental agony, pain and suffering they are engaged in their unfair trade practice causing deficiency of service and sheer negligence toward the customers. The Complainant further submits that a Notice was issued on the Opposite parties and were called upon to rectify the defects found in his vehicle and pay him a compensation of Rs 2 lakhs with in a period 15 days from the date of receipt of their notice. After receiving the notice,he was approached by the staff of the Opposite parties through phone calls and SMS to come for an amicable solution and assured that they would rectify the defects of pulling problem by taking expenditures from his insurance policy. But they did not take any steps until this day redress his grievance. He was totally disappointed with that he was not given with any redressal as it was promised by the Opposite Parties, he was asked by the Opposite parties to pay Rs.10000 towards making repairs. Finally on 23.8.2019 the Complainant told his grievance to the Customer Care in charge Mr.Dinakaran by Telepohne and explained his grievances. He was totally vexed and approached the Opposite Parties and complained about this and asked them to return his whole money as there was no use in any way in waiting. The staff of the Opposite Party have been giving evasive answers. He was totally defrauded by the Opposite Parties and he was put to lot of mental agony, pain and suffering and the Opposite Party engaged in the unfair trade practice causing deficiency of service and sheer negligence toward the customers. He was cheated by the Opposite Parties, hence he is entitled for the refund of Rs.5000/- which he has to be paid along with interest. For his severe hardship, he is entitled to get compensation sum of Rs 2,00,000/- towards the mental agony, pain and suffering caused by the Opposite Parties. Because of the pulling problem there is a danger in controlling the vehicle while driving the tyres are also in the trouble erasing soon, The 3^rdOpposite Party is running an insurance in house Agency and giving priority only for the customers those who are getting insurance policies from them that is the reason that the grievance of the Complainant is not done under insurance coverage. Such activity of the 3^rdOP is an unfair trade practice indulged in glove in collusion with insurance companies and causing in convenience and deficiency of service to the customers who are having insurance policies outside their in house agencies. He is having a extended warranty for the vehicle the opposite parties have not even considered this in addressing his grievance. Hence the complaint.

3. Written Version filed by the 3^rd Opposite Party in brief is as follows:-

The present complaint is bad for misjoinder of parties. The Complainant has unnecessarily and illegally impleaded them. The Complainant is neither their consumer nor there is any cause of action to file the present complaint against the answering Opposite Party, as such the complaint is not maintainable and liable to be dismissed on this sole ground. The Complainant has made OP No. 2 who prima facie, is the employee of 1^st Opposite Party, a party to the complaint, the employees per se were not the service providers and no independent contract exists between an employee and a consumer and thus there is no relationship of consumer-service provider between the Complainant and the individual employees and as such the complaint, making employee party to the dispute, is liable for dismissal on ground of misjoinder of necessary parties. The said principle has been affirmed by the Hon'ble National Commission. That the Complainant, being dissatisfied by the alleged servicing and repair work done in the vehicle by the 1^st Opposite Party, ie. the dealer, has filed the present complaint. They, being a manufacturer, has no role in the alleged repair and as such there was no cause of action against them. Thus, the complaint is liable to be dismissed against them. They cannot be held liable for act/omission of the dealer, if any. It is well settled principle of law, as held by various courts including Hon'ble Supreme Court and Hon'ble NCDRC that the relationship between a manufacturer and a dealer is on principal to principal basis. They do not sell its products to any individual under its invoice or sale certificate. But the sale transaction is between the customer and the dealer. In the present case the Complainant had duly inspected the vehicle and conducted a test drive and it was only after being fully satisfied with the performance of the vehicle that it had taken its delivery on 20-Dec-2016. The vehicle has also run for more than 18650 kilometers and is continuously running and thus by no stretch of imagination, the Manufacturer could be held liable for any repair related work. That they sell its products to its authorized dealers and the service of the vehicle is also done by the authorized dealers and as such the relationship between them and the dealers is on principle to principle basis only as per the dealership agreement executed between them and the dealer. The wheel balancing, alignment and tyre rotation is outside the purview of warranty. The warranty clause is not applicable for wheel balancing and alignment. Their obligation arises only on happening of events as listed out in the warranty clause 4 which is specifically mentioned in the owner's manual as well as service booklet. The said warranty is not absolute and is subject to certain terms, conditions & limitations as enumerated in owner's manual and service booklet. The warranty clause states as follows: WARRANTYPOLICY -"Maruti Suzuki India Limited (hereinafter called "Maruti Suzuki"), warrants that each new Maruti Suzuki vehicle distributed in India by Maruti Suzuki and sold by an authorised Maruti Suzuki dealer will be free, under normal use and service, from any defects in material and workmanship at the time of manufacture, SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:(2) Term: The term of the warranty shall be twenty-four (24) months or 40,000 kilometers (whichever occurs first) from the date of invoice to the first owner.(4) Limitation: This warranty shall not apply to: Normal maintenance service required, including without limitation, oil and fluid changes headlight aiming, fastener retightening, wheel balancing, wheel alignment and tyre rotation, cleaning of injectors, ignition timing, clutch and valve clearance. The Complainant is not a 'consumer” as defined under section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act). The Complainant has not paid any consideration towards purchase or service of vehicle in question to them. There is no privity of contract between the Complainant and them. Hence, the Complainant is not their consumer in so far as the dispute under the present complaint is concerned and the same is not maintainable against them and is liable to be dismissed. The present complaint is frivolous and vexatious and is liable to be dismissed u/s 26 of the Consumer Protection Act, 1986. The Complainant has failed to set out any specific allegation or the case for Deficiency in Services against them and further failed to disclose any specific cause of action against them. Thus the Complaint is liable to be dismissed for want of cause of action. That the present complaint is not maintainable as they have not committed any deficiency in service as alleged. The Complainant has not alleged any fact which amount to deficiency in service on their part. As such the present complaint is not maintainable against them and deserves to be dismissed on this ground also. Hence prayed to dismiss the complaint.  

4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-7. The 3^rd Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of 3^rd Opposite Party documents were marked as Ex.B-1 to Ex.B-2. The 1^st and 2^nd Opposite Parties did not appear before this Commission even after sufficient notice was served on them and hence set exparte.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

It is an undisputed fact that the Complainant had purchased Maruti Eeco Car in the month of December, 2016 and the same was registered as TN 14 J 2667. It is also not in dispute that the Complainant has done service of the subject vehicle with the 1^st Opposite Party’s Keelkatalai service centre.

The disputed facts of the Complainant are that the subject vehicle suffered with pick up and idling issues right from the purchase of the subject vehicle. The subject vehicle was left for paid service with the 1^st Opposite Party service centre on 05.04.2019, after service when he drove the subject vehicle he faced pulling on the left side of the vehicle and the tyre was erasing one side and he could not able to drive the subject vehicle, resulting pain in his right hand shoulder, for which he immediately complained to the 1^st Opposite Party service centre and left the vehicle at 1^st Opposite Party service centre. The 1^st Opposite Party without rectifying the said defect had returned the vehicle on the next day. It was informed to him by the 2^nd Opposite Party that there was some chassis problem in the subject vehicle, which the 1^st Opposite Party had not revealed to him. The subject vehicle was never met with accident or never dashed against any hard surface. The 1^st Opposite Party had charged Rs.4944/- as service charges, in spite of the same the running condition of the subject vehicle was not good and faced with said issues. He had also complained the said issues over phone to the Territory Manager and the 2^nd Opposite Party, though they had assured to rectify the said issues, but failed to do till date, which constrained him to cause notice dated 12.07.2019 to the Opposite Parties 1 to 3 calling upon them to rectify the defects and to pay compensation, the said notice was received by the Opposite Parties 1 to 3, the 1^st Opposite Party had approached him for an amicable solution and had assured to rectify the defects through insurance, but had failed to do so. Thereafter he had approached the Customer care incharge over phone and explained his grievances, which went in vain, hence he approached the Opposite Parties for refund of entire money, who gave evasive replies. He was totally defrauded by the Opposite Parties and the Opposite Parties had committed unfair trade practice, deficiency of service by their sheer negligence to rectify the defects of the subject vehicle.

The 3^rd Opposite Party had contended that they as a manufacturer has relationship with the 1^st Opposite Party dealer on Principal to Principal basis and there was no relationship between them and the Complainant, hence complainant is not a consumer and the Complaint is affected by mis-joinder of parties, as they are not answerable for the allegations made in the complaint and there was no cause of action against them. Further contended that the Hon’ble Supreme Court and Hon’ble National Consumer Disputes Redressal Commission, had time and again held that the party alleging deficiency of service should prove the same. Further contended that as per the dealership agreement and warranty policy, they were not liable or responsible to compensate the complainant, further the warranty policy does not cover wheel balancing and tyres. Hence they had not committed any deficiency of service.

On discussion made above and on considering the facts and circumstances of the case, it is clear that the Complainant had left the subject vehicle for service with the 1^st Opposite Party on 05.04.2019 for paid service as found Ex.A-3 and the vehicle was found to be delivered on 06.04.2019 on collection of Rs.4944/- as per Ex.A-4. The subject vehicle was also found to let for service on 15.06.2019, as the pulling problem and tyre erasing problem persisted in the subject vehicle, the Complainant was constrained to cause a notice 12.07.2019 to the Opposite Parties 1 to 3 and in spite of receipt of the said notice, no action was found to be taken by the Opposite Parties. As contended by the 3^rd Opposite Party that there was no cause of action against them and no relief claimed against them, it would be clear that the Complainant had failed to prove any manufacturing defects in the vehicle, except the defects that could be rectified by the 1^st Opposite Party. Though the Complainant had contended that he has an extended warranty, the 3^rd Opposite Party is liable and responsible under warranty policy, the contentions of the 3^rd Opposite Party in this regard would be that as per Ex.B-2 Clause 4 of Warranty Policy, (4) Limitation: This warranty shall not apply to:(a) Normal maintenance service required, including without limitation, oil and fluid changes headlight aiming, fastener retightening, wheel balancing, wheel alignment and tyre rotation, cleaning of injectors, ignition timing, clutch and valve clearance.Hence, it would be clear that the 1^st Opposite Party had acted negligently and had failed to rectify the defects of the subject vehicle, which clearly amounts to deficiency in service on the part of the 1^st Opposite Party. Therefore, this Commission is of the considered view that the 1^st Opposite Party had committed deficiency of service and had caused mental agony to the Complainant. The complaint against the 2^nd Opposite Party being an employee of the 1^st Opposite Party and as against the 3^rd Opposite Party being manufacturer, who is in no way liable or responsible as per the terms of Warranty Policy, for the defects to be rectified by the 1^st Opposite Party, is dismissed. Accordingly Point No. 1 is answered.

Point Nos.2 and 3:

As discussed and decided Point No.1 against the 1^st Opposite Party, the 1^st Opposite Party is liable to pay a sum of Rs.20,000/- towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.5,000/-, within 8 weeks from the date of receipt of order. And the Complainant is not entitled for any other relief/s. Accordingly Point Nos. 2 and 3 are answered. 

In the result the complaint is allowed in part. The 1^st Opposite Party is directed to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of receipt of order, failing which the above amount of Rs.20,000/- shall carry interest @9% per annum from the date of the order till the date of payment. The complaint against Opposite Parties 2 and 3 is dismissed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 5^th of January 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	28.12.2016	RC book of the vehicle TN-14 J 2667
Ex.A2	13.07.2018	Vehicle pick-up job slip
Ex.A3	05.04.2019	Vehicle pick-up job slip
Ex.A4	06.04.2019	Job card retail-tax invoice
Ex.A5	15.06.2019	Job card retail-tax invoice
Ex.A6	12.07.2019	Legal notice
Ex.A7	16.07.2019	Postal acknowledgement cards

List of documents filed on the side of the Opposite Parties:-

 

Ex.B1	-	Copy of Dealer ship Agreement
Ex.B2	-	Copy of warranty Policy

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT