Complaint filed on: 10-12-2020

                                                      Disposed on: 16-06-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

#201, 202, 1^st Floor, Indian Red Cross Building Complex,

Ashoka Road, Tumakuru-572 101. 

CC.No.84/2020

DATED THIS THE 16^th DAY OF JUNE, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

Complainant: -    

Sri.Diwakar.M,

S/o Sri.Maridappa.K,

Aged about 38 years,

R/at Sri Ranga Krupa Nilaya,

6^th Main, 2^nd Block,

Kuvempunagara,

Tumakuru-572 103                            

(By Sri.Keshavamurthy, Advocate)

V/s

Opposite parties:-        

1. M/s SAKETH AUTOMOBILES

Authorized dealers for Maruthi Car,

Sira Road, Authorized,

Reptd.by its Manager

2. M/s Maruthi Suzuki India Ltd,

A company registered under the Provisions of Companies Act,

Having regional office at Embassy Classic, No.204, 2^nd floor,

Vital Malya Road, Near UB city,

Represented by its

Regional Manager

3. M/s Lekhya Motors Pvt. Ltd,

Hunakal Cross, Hubli,

Reptd.by its Manager,

(Proposed impleading Res.No.3)

                                                (OP No.1-By Sri.T.S.Niranjan, Advocate)

                                                (OP No.2-By Sri.BSK, Advocate)

                                                (OP No.3-By Sri.L.M.Sheelvanth, Advocate)      

                                                :ORDER:

SMT.G.T.VIJAYALAKSHMI, PRESIDENT

This complaint was filed by the complainant under Section 35 of Consumer Protection Act, 2019 to direct the Opposite parties (hereinafter called as OPs.1 to 3) to replace the old care by brand new car of the same make or similar make and pay a sum of Rs.2,20,000-00 towards loss of using the car to its full potential from date of purchase till the date and towards damages for having suffered mental agony and harassment and pay interest@ 18% p.a. for Rs.2,20,000-00 from the date of complaint until full and final settlement and grant such other relief as prayed in the complaint.

2. It is the case of complainant that, he was interested in purchasing a Maruthi Baleno Zeta Petrol Car and booked one Maruthi Baleno Zeta Petrol Car. The car bearing Chassis no.MBHEWB22SKK381282, Engine No.K12MN7517719, bearing pearl arctic white colour was delivered by the 1^st OP for a sum of Rs.6,90,060-00 vide invoice no.007/VSL/19000410A         dated: 3-12-2019. The complainant paid total amount of Rs.8,55,00-00 for car including insurance etc.  Thereafter, on 5-12-2019 temporary registration was done and insurance was paid by the complainant by remitting Rs.29,704-00 and road tax was paid at Rs.1,11,355-00. Immediately after purchase of the car, the complainant found that there was problem with inbuilt smart play studio application.

2(a)   The complainant further submitted that, all the attempts made by the complainant to register the software by using his registered phone no.9620722512 failed and he received a message on his phone at “Your VIN number or register number does not match with the mobile number”. Immediately within two days of purchase of the car, the complainant contacted relationship manager of 1^st OP Mr.Ajay through his contact no.7349792466 and explained regarding the problems in the car faced by the complainant. Further, the NEXA authorities requested the complainant to install NEXA application in his phone and thereafter try to register. Immediately the complainant registered NEXA application in his phone. When the engine number and chassis number of the car was unloaded in the application, the complainant was shocked to find the name of one Mallikarjunaiah, son of Mallaiah, no.1590B, 4^th Cross, Tiptur and that the vehicle was sold on 30-11-2019 through dealer Lekhya Motors Pvt. Ltd vide invoice no.VSL/19000851. Immediately the complainant called relationship manager of OP no.1 and explained the same to him. In the meanwhile the car was permanently registered on 3-1-2020 and registration no.KA-06-Z-4472 was issued by the RTO authorities.  The complainant was asked to uninstall and update the App for about 8 times. Inspite of uninstalling and reinstalling the problem was not solved. The complainant could not connect to smart play and the voice command was not responding and therefore the complainant could not use the car to its potential.

2(b)   The complainant further submitted that, in the meanwhile on 16-6-2020 email has been addressed by back end team of Saketh Motors to the officials in which it is clearly admitted that the vehicle was earlier sold by another dealer and the details of purchaser has been entered in the software of the car. The same was hidden from the complainant wrongfully amounts to fraudulent act and cheating, it is against the ethics of business. The act of the OPs in selling the car which is already sold to other without informing the same to the complainant and thereafter refusing to rectify the same or to give new car is erroneous, opposed to fair trade practice and deficiency in service on the part of OPs. The OPs have committed unfair trade practice and has committed deficiency in service. Hence, this complaint.

3. After the service of notice, the OP Nos.1 to 3 have appeared through their learned counsel and filed separate written objections/version.

4. In the objection, the 1^st OP submitted that, the complaint is not maintainable either in law or on facts and it is liable to be dismissed at the very outset.  The 1^st OP further submitted that, the complainant has purchased new Baleno Zeta Car from the 1^st OP on 3-12-2019 but it is not correct to say that the complainant after started to using the car noticed that in car in built smart play studio application not worked properly and using guidelines the complainant registered mobile no.9620722512 in smart play studio application and after re-registering mobile number in application. 

4(a)   After receiving the complaint from the complainant regarding the non working of the said system, on 27-8-2020 the issue in question is solved by the Maruthi Company. To this effect OTP has given and the same is intimated to the complainant well in time by the 1^st OP.

4(b)   The 1^st OP further submitted that, regarding invoice in favour of Mr.Mallikarjunaiah is concerned, the alleged invoice is cancelled and the same vehicle has been given to the complainant. Hence, the question of doubt regarding the vehicle and ownership will not arise. The question of providing new Baleno Zeta car will not arise because the complaint raised by complainant regarding the non working of the smart play studio application has been solved and the same is intimated by the 1^st OP firm manager Mr.Ravikumar has called by his mobile number 7349792482 to say about the matter has been solved but the complainant has not picked the call and further the said manager has sent an SMS saying that the complainant number is updated kindly check and revert. But after seen the said SMS, the complainant replied as he is in travelling better to talk with his lawyer, again the 1^st OP firm manager asked the complainant for kindly confirm, the complainant is getting OTP for this conversation, the complainant has replied as he has sent a screen shot. Hence, the question of service deficiency from the 1^st OP does not arise and prayed to dismiss the complaint with heavy cost.

5. In the written statement, the 2^nd OP submitted that, the complainant is not a consumer as per Section 2 (7) of CP Act, 2019 hence, the complaint is not maintainable. The complainant neither purchased the vehicle in question nor made any payment to the 2^nd OP. The 2^nd OP has no rule, whatsoever in the alleged sale/purchase transaction of the vehicle with the complainant. There is no privity of contract between the 2^nd OP and complainant as such the complaint is not maintainable. There is no cause of action to file the complaint against the 2^nd OP. The complainant has not substantiated even a single allegation against the 2^nd OP and clarified that, the 2^nd OP sells its vehicles to the dealerships and the dealerships in turn enter into sale transaction with the individual customers. The relationship between the 2^nd OP and 1^st OP is on principle to principle basis hence, the 2^nd OP cannot be held liable for any action in relation to the sale transaction taken place between the complainant and 1^st OP. The obligation of 2^nd OP is only as per the warranty. The warranty is not absolute and is subject to certain terms, conditions and limitations as enumerated in owner’s manual and service booklet. The 2^nd OP further submitted that, at the time of sale of vehicle to the dealership, the vehicle in question was final Check OK (FCOK) and pre-delivery inspection (PDI) certified stating the same to be free from any defects. Thus the vehicle was free from any abnormality or defects at the time of delivery. In the present case, the vehicle was sold by the 2^nd OP to the 2^nd OP to the dealer Lekhya Motors, after FCOK and PDI and the vehicle was free from any defect. However, in the month of June 2020, the 2^nd OP approached by the 1^st OP stating phone number mapping issue in the complainant’s vehicle Smart-play Studio. During that time, it was learnt that initially the vehicle was invoiced by Lekhya Motors in favour of some other customer Mr.Mallikarjun but later on since the booking with him got cancelled the said vehicle was invoiced in favour of 1^st OP so that the same can be sold to the complainant by the 1^st OP. Hence, at the time of invoicing the vehicle in favour of Mr.Mallikarjun, the smart-play Studio got mapped with the phone number of Mr.Mallikarjun and for this reason the complainant was not receiving any OTP for registration of his mobile number with the smart-play Studio. The 2^nd OP did all settings in the Smart-play Studio from the backend software and updated the phone number of the complainant, thereafter the complainant started receiving the OTP in his mobile number. The complainant has never raised any concern or grievance with the 2^nd OP whereas the concern referred to the 2^nd OP by 1^st OP has been duly resolved.  Other allegations made in the complaint has denied as false and prayed to dismiss the complaint with cost.

6.       In the objections, the 3^rd OP submitted that, the 3^rd OP is also a dealer like the 1^st OP in respect of Maruthi Suzuki Cars. The 1^st OP has placed an order with the 3^rd OP to raise an invoice in the name of Sri.Mallikarjunaiah in respect of vehicle viz. Baleno Zeta Petro Manual White. Thereafter, the 3^rd OP raised an invoice on 14-11-2019 in the name of Mallikarjunaiah and then the 1^st OP sent an email dated 30-11-2019 to the 3^rd OP requesting to cancel the said invoice raised in the name of Mallikarjunaiah. As per request of 1^st OP, the 3^rd OP has cancelled the said invoice in the Dealer Management System (DMS). Thereafter, the 1^st OP sent an email to 3^rd OP to raise an invoice in the name of 1^st OP himself i.e. Saketh Automobiles as per document no.VSL/19000851 dated 30-11-2019. As per the said invoice, the 3^rd OP has delivered the said vehicle to the 1^st OP on 14-11-2019. The vehicle which was delivered to the 1^st OP from 3^rd OP is having a chassis no.MBHEWB22KK381282, engine no.K12MN7517719, Maruthi Baleno Petrol Arctic White-ZHJ. The said car was not sold to Mallikarjunaiah on 30-11-2019 but the invoice was cancelled which was in the name of Mallikarjunaiah. Once the above said car is delivered to the 1^st OP from 3^rd OP, the liability and responsibility will come to an end. It is none of the business of the 3^rd OP to know and to make enquiry to whom, the said vehicle was sold by the 1^st OP. Therefore, under the above circumstances, the 3^rd OP is neither proper party nor necessary party to the complaint and he cannot be made as party to the complaint. Hence, the 3^rd OP prayed to dismiss the complaint with cost.     

7. The complainant has filed affidavit evidence and produced Exs.P1 to P12 and Exhibits-A to K documents. On behalf of 1^st OP one Ravikumar.S, Manager has filed his affidavit evidence and produced reply notice dated 7-9-2020, reply given by the 1^st OP to the complainant through SMS, Email addressed to the 3^rd OP and 2^nd OP and booking requisition form duly signed by complainant and 1^st OP.  On behalf of 3^rd OP one M.V.Radhakrishna Sarma, General Manager has filed affidavit evidence and produced Ex.R1 to R3 documents

 8.      We have heard the arguments of the learned counsel for the complainant and OPs and also perused the materials on record. The points that would arise for determination are as under:

1)       Whether the complainant proves that there is deficiency in service on the part of OPs?

2)       Is complainant entitled to the reliefs sought for?  

9.       Our findings aforesaid points are as under:

Point No.1: In the affirmative

Point No.2: As per the final order

:R E A S O N S:

Point Nos.1 and 2:

10.      The admitted facts between the parties are;
1.        The complainant purchased Maruthi Baleno Zeta Petrol car from OP.  The car bearing chassis NO.MBHEWB225KK381282, Engine NO.K12MN7517719 bearing Pearl arctic white colour was delivered by the OP for a sum of Rs.6,90,060/- vide invoice No.007/VSL/19000410A, dated:03.12.2019, totally the complainant had paid Rs.8,55,000/- (including insurance + Road tax is Rs.29,704+11355) on 05.12.2019 temporary registration was done.

b.       Immediately after purchase of the car, the complainant found that there was problem with In-built smart play studio application:  All attempts made by the complainant to register the software by using his registered phone No.9620722512, failed.  Each time when the complainant tried to register, we received a message on his phone that “Your VIN No./Registration number does not match with the mobile number.

c.       Within 2 days of purchase of the car, the complainant contacted the relationship Manager of OP No.1 and explained regarding the problems in the car faced by the complainant.  The OP No.1 assured that the same would be resolved with 5 to 6 days.  Meanwhile after 10 days of purchase of the said car, NEXA authorities from Chennai had called the complainant for customer review purpose and the complainant appraised the NEXA authorities about the issue in his car and inability of OP No.1 to rectify the same.  As per instructions of NEXA authorities, complainant registered NEXA application in his phone when entered the engine and chassis number of the car uploaded in the application, the complainant find the name of one Mallikarjunaiah S/o Mallaiah No.1590B, 4^th Cross, Tiptur and the vehicle was sold on 30.11.2019 through dealer Lakhya Motors Pvt. Ltd., vide Invoice No.VSL/19000851.  Immediately the complainant contacted the relationship manger and quality manager of OP NO.1 and staff of the OP No.1 promised to solve within 2/3 days.  Meanwhile the car was permanently registered on 03.01.2020.

d.       During lock-down period, the complainant had made whatsApp message to the OP NO.1 and enquired about the updates.  But the complainant received the same answers that they would resolve in few days.  The complainant was asked to uninstall and update the application for about 8 times.  In-spite of uninstalling and reinstalling the problem was not resolved.  The complainant could not connect to smart play and the voice command was not responding.  Hence, the complainant could not use the car to its potential. 

11.      The main contention of the complainant is that, he has invested hard earned money to purchase brand new car, but he came to know that he had purchased a car which was already sold to someone else and inbuilt smart play studio application is not working properly.
12. .     On the other hand, OP-1 submitted that, after receiving the complaint from the complainant regarding non working of smart play studio application, the issue in question is solved by Maruthi Company on 27.08.2020.  Further, OP1 submitted that, invoice in favour of Mr.Mallikarjunaiah is concerned, the alleged invoice is cancelled and the same vehicle given to the complainant. 
13.      On careful perusal of the Ex. E.F,G,H, I related to car invoice, smart card (R.C.Card), copy of insurance, Tax paid receipts and Ex.J related to e-mail conversations regarding smart play studio issue in Baleno vehicle K.A.06:Z-4472 reveals the fact that, it is not the case of sale of second hand car to the complainant, but it is a case of invoicing the car in the name of Mallikarjunaiah on 30/11/2019 and the same day it is cancelled.  Within 3 days of cancelation on 03/12/2019, same car was sold to complainant. It is an error committed by the OP1 during the time of invoice raised and cancelled.  The technical error committed by OP1 and it is not possible to rectify the same in Nexa application even though OTP sent to the mobile number. 
14.      The contention of the OP2 is that, there is no previty of contract between OP2 and complainant.  The relationship between the OP2 and OP1 is on principle to principle basis.  The OP2 cannot be held liable for any action relation to the sale transaction taken place between the complainant and OP1. 
15. The contention of the OP3 is that the OP3 is also dealer like OP1 in respect of Maruthi Cars.  As per request of OP1, raised an invoice in the name of Sri.Mallikarjunaiah in respect of vehicle Baleno Zeta petrol car on 14/11/2019 and cancelled the said invoice in the dealer management system (DMS) on 30/11/2019.  Thereafter, on the basis of OP1 ‘e’ mail, OP3 raised invoice in the name of OP1 i.e., Saketh Automobiles and delivered the car to OP1 having chassis No.MBHEWB22KK381282, Engine No.K12MN7517719, Maruthi Baleno Petrol Arctic white.  The said car was not sold to Mr.Mallikarjunaiah on 30/11/2 019. 
16.      On perusal of the complaint and exhibits, we do not find any allegation of deficiency of service on the part of OP2 and OP3.  Hence, the complaint against OP2 & OP3 is liable to be dismissed.
17.      The complainant claimed to replace the old car by brand new car of the same make.  The replacement of car is possible, when there is inherent manufacturing defect in the car.  But in the instant case, there is no allegation of manufacturing defect and the complainant had not filed report/affidavit of any expert to say that there is any manufacturing defect in the car. Therefore, the complainant is not entitled to claim replacement of car.  The OP No.1 has failed to rectify the problems in the smart play studio application and it amounts to deficiency in service on the part of OP No.1  The complainant has suffered the loss of utility of his car to its full potential.  Hence, the complainant is entitled to claim the compensation for serious inconvenience caused to him.  But there is no criteria/yardstick to assess the losses caused to complainant.  Hence, it is just and proper to award Rs.2,00,000/- as global compensation and Rs.15,000/- as litigation expenses.  Accordingly, we proceed to pass the following:-   

:O R D E R:

          The complaint is allowed in part with cost.

The OP1 is directed to pay Rs.2,00,000/- as compensation to the complainant.

Further, OP1 is directed to pay Rs.15,000/- as litigation expenses.

Further, OP1 is directed to comply the above order within 30 days from the date of receipt or knowledge of the order.

The complaint against OP2 and OP3 is dismissed.  

Furnish the copy of order to the complainant and opposite parties at free of cost.