IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 22nd day of March, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.28/2011 (Filed on 02.02.2011)
Between:
Meeradevi. K,
Kalluvilayil Ushus,
Mundappally,
Peringanad.P.O.,
Adoor, Pathanamthitta Dist.
(By Adv. S. Jinesh) …. Complainant
And:
1. M/s. Tata Motors Ltd.,
Passenger Car Business Unit,
5th Floor, One (1) Forbes,
Dr. V.B Gandhi Marg, Fort,
Mumbai – 400023.
(By Adv. Lalu John)
2. M/s. Kulathunkal Motors,
Toll Junction,
Bye-pass Road,
Anayara, Thiruvananthapuram.
3. M/s. Kulanthumkal Motors,
Branch Office,
Pazhamannil Jessy Towers,
Stadium Jn., Pathanamthitta.
(By Adv. Sam Koshy) …. Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant purchased a Tata Indica Vista Aura Car of 1st opposite party from 2nd opposite party on 28.12.2009. Even though pre-delivery inspection had done at the 2nd opposite party’s show room, car delivered to complainant by 3rd opposite party. The vehicle selected from the show room yard was a brand new one. But the vehicle delivered is not the selected one and has many defects.
3. The following defects and discrepancies were noticed at the time of delivery.
(1) The right side head lamp was in opaque condition due to some adhesive substance was fastened all over it. It had been replaced at the time of first service.
(2) The lower part of both the side of the vehicle was stuck by bituminous type black and stiff compound. It had been partially rectified by repainting during first service.
(3) As the two twains (strings) on which the parcel tray hooked down are of different lengths, the parcel tray could not be positioned properly. Hence the tray is budged.
(4) The rubber beadings on the top of the vehicle are not properly and firmly fixed. It projects upward. As its dimension is not apt to accommodate in the slot, it could not be correct.
(5) At the time of delivery, there were many scratches on the vehicle, but it was polished and unable to notice at the time of delivery.
(6) As the vehicle was purchased within the validity period of now or never offer, declared by the TATA Motors, I was eligible to get a cash reduction of ` 2,000. But the dealer did not pass the benefit to the consumer.
4. The most severe discrepancy is that the vehicle selected by the customer from the ready available stock at the show room’s yard and that delivered one was not the same. This fact could be noticed only after receiving the free service coupons which were mailed to the customer by the dealer after delivery of the vehicle. The date of pre-delivery inspection as furnished on the owner’s manual is 23.09.2009, which ought to have been performed only after payment of the price of the vehicle by the prospective customer. The defects shown above are the use by somebody else and some replacements and repairs are made before delivery. The said attitude of opposite parties, the complainant has suffered a irreparable loss of ` 5,00,000 and also they have the unlawful gain of the same amount. Hence this complaint for replacing the vehicle with a new one with insurance, road tax, registration etc. with opposite parties cost and disburse the cash discount of now or never offer declared by 1st opposite party.
5. 1st opposite party entered appearance and filed separate version stating that complaint is not maintainable either in law or on facts. According to them, the vehicle in question has met with accident twice and reported at the workshop of opposite party No.2 in the Month of July 2010, December 2010. Complainant has not been a consumer of this opposite party this opposite party has unnecessarily been made a party to the proceedings.
6. According to them, Automobile Research Association of India, Pune is the only approved research institution which issues certificate to all vehicles manufactured in India, after thorough tests and reliability for commercial production. Complainant either produced an expert opinion or to any documentary evidence to prove the alleged manufacturing defect in the car in question. The 2nd opposite party has been prompt to attend the alleged problems reported by the complainant under the warranty and as on date, there exists no problem in the car. Therefore, the prayer for replacement of the vehicle and compensation is untenable and unsustainable.
7. According to them the complainant had taken delivery of the vehicle, after being satisfied with the condition of the vehicle and its performance. It is also delivered after carrying out of pre-delivery inspection by the dealer. Moreover, all the vehicles manufactured by them are marketed only after approved by the Automobile Research Association of India. The vehicles are put through stringent control system, quality checks and test drives by the quality Assurance Department before dispatch to the market. This opposite party is “ISO TS/16949” certified, which is the international standard for quality systems for all the automobile companies. Whenever any vehicle reports to a workshop, the grievances of the customer are recorded in the job card. Thereafter standard checks are carried out as the workshop and observation is recorded by the service Advisor on the back side of the job card. Standard checks are carried out at the workshop and observation is recorded by the service advisor on the backside of the job card. It helps the concerned workshop to provide necessary advice regarding the condition of the vehicle to the customer. The vehicle is checked at the workshop by the Quality Inspector and the Diagnostic Expert-cum Trainer during pre and post repairs to ensure quality workmanship. The service Advisor of the workshop, who interferes with the customer, is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the vehicle. The vehicles as attended by the opposite parties’ dealers/service points fully comply with the warranties, assurances and specifications.
8. The relationship between them and other opposite party is on principal to principal basis. They are not liable for any omission committed by other opposite party. Moreover, complainant signed the contract and therefore liable to the terms and conditions of the warranty and not entitled to claim compensation or damages from the opposite party. Complainant was not in consonance with the terms of ‘now or never offer’ and therefore not eligible for the benefits. Complainant has applied for the scheme after the expiry of its validation. Complainant does not suffer from any manufacturing defect. The allegation is only minor in nature and attended to the satisfaction of the complainant. Complainant is not entitled to any of the relief as sought in the complaint. Hence they canvassed for the dismissal of the complaint with cost.
9. Opposite parties 2 and 3 entered appearance and filed version jointly. According to them, 2nd opposite party delivered the brand new vehicle through the 3rd opposite party at Pathanamthitta on 07.01.2010. At the time of delivery, opposite parties give a remote central lock, seat cover, insurance, mud flap, floor mat free of cost to the complainant. She signed the satisfaction note of the vehicle at the time of delivery. The 1st opposite party is announced the now or never offer. Complainant enter the contest through internet by enter the chassis number of vehicle. Due to laches of the complainant, she does not enter into the contest. Suppressing this, the complainant had fraudulently instituted the complainant.
10. According to them, they delivered a brand new vehicle manufactured by 1st opposite party. No loss has been caused to the complainant by opposite parties 1 and 2. The allegations are concocted only for the purpose of the complaint. The complainant is not entitled to any relief as claimed for. There is no deficiency of service or unfair trade practice as alleged. Therefore, opposite parties 1 and 2 canvassed for the dismissal of the complaint with cost.
11. From the above pleadings, following points are raised for considerations:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
12. Evidence of the complaint consists of the oral deposition of PW1 and PW2 and marked Exts.A1 to A10. After closure of evidence, both parties were heard.
13. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with 10 documents. She was examined as PW1 and the documents produced were marked as Exts.A1 to A10. Ext.A1 is the tax invoice prepared on 30.12.2009 at the office of the 2nd opposite party. Ext.A2 is the order sheet prepared at the 3rd opposite party’s office. Ext.A3 is the copy of acceptance of ` 5,00,000 by the 1st opposite party. Ext.A4 is the copy of Page Nos. 136 & 137 of the owner’s manual and service book. Ext.A5 is the copy of page No.143 of the owner’s manual and service book. Ext.A6 is the copy of pre-delivery inspection coupon. Ext.A7 is the copy of letter sent to 1st and 2nd opposite parties by complainant. Ext.A8 is the reply letter of Ext.A7 by 1st opposite party. Ext.A9 is the reply letter of 2nd opposite party. Ext.A10 is the copy of R.C. Book of the complainant’s vehicle.
14. Apart from version, opposite parties have not adduced any oral or documentary evidence to prove their contention.
15. On the basis of the contention and argument of the parties, we have perused the entire materials on record. Complainant’s case is that she selected as brand new one car from 2nd opposite party’s show room yard and purchased it, but delivered by 3rd opposite party is a different one. More over opposite parties did not given the benefit of new or never offer, though complainant purchased within the validity period of offer.
16. Opposite parties contention is that they delivered the vehicle only after proper testing. Vehicle purchased by complainant has no manufacturing defect and if anything it has to be proved by expert evidence. Moreover, complainant has not eligible for now or never offer.
17. The dispute is that the vehicle selected by the complainant from the show room yard of the second opposite party and the delivered one are different. The said delivered vehicle has so many defects. The defects were noticed only after the delivery of the vehicle. It is admitted that the vehicle has delivered on 07.01.2010. The date is not recorded in Ext. A7. Therefore, it does not mean that which date Ext. A7 has send to opposite parties 1 and 2. In Ext. A8 reply notice, the date is 17.02.2010 and Ext. A9, the date is 18.02.2010. In Ext. A8, it is revealed that the date of complainant’s complaint is on 11.02.2010. All this shows that complainant raised her complaint only after one month from the date of delivery. If any defect or discrepancies found on the date of delivery, what prevented her to complaint before the concerned parties immediately, even though the complaint are of serious in nature. If the delivered vehicle is not the selected one at yard, why not note the chassis number in the yard. Evidence on record does not reveal that complainant noticed the allegations immediately after the delivery of the vehicle. Moreover, complainant has not proved any manufacturing defect or such other defect by appointing an expert and adduced evidence to that effect. Moreover, complainant has not a case that the defect raised in the complaint is inherent or nor repairable. If any foul play on the part of opposite parties 2 and 3 with regard to the delivered vehicle and selected one, the same has not been proved beyond a shadow of doubt. Hence we are not inclined to allow the first prayer in the complaint.
18. Another contention of complainant is that opposite parties denied ‘the now or never offer’ of ` 2,000. According to first opposite party, the said offer had been made subject to the terms and conditions. They got information from second opposite party that the details furnished by the complainant were not in consonance with the terms of the offer and she applied for the scheme after expiring of its validation. Hence complainant is not eligible for the benefit. Second and third opposite parties’ contention is that complainant itself enter contest through internet by enter the chassis number of vehicle. Due to laches of complainant, she does not enter into the contest.
19. Though opposite parties admitted the offer, they do not disclosed the real fact before the Forum. They hidden the offer. It shows that there is no transparency in their dealings. Complainant’s case is that she is eligible for getting the now or never offer. This is evident in PW2’s deposition which is as follows: “Now or never offer Dm-bn-cp¶p F¶Xv Fsâ Hcp kplr¯v ]dª Adn-hmWv”. 31.12.2009 hsc Cu offer valid Bbn-cp-¶p”. Opposite parties neither challenged nor .disproved the complainant’s contention.
20. It is pertinent to note that the date in Ext. A1 is on 30.12.2009, date of Ext. A2 is on 23.12.2009 and Ext. A3 is on 28.12.2009. As per Ext. A3, complainant paid ` 5,00,000 as price of the vehicle. Therefore, it is seen that all the transactions took place before the expiry period of 31.12.2009. Therefore, it is presumed that complainant is eligible to get now or never offer.
21. Evidence on record shows that opposite parties 2 and 3 are liable for denying offer to complainant. First opposite party’s contention is that they are not liable for the omission of the act of other opposite parties. Considering this, we exonerated first opposite party from the liability.
22. From the overall facts and circumstances and the available evidence on record and on the basis of the observation and discussion herein, we are of the view that denying now or never offer to complainant is unjust, irrational, malafide and against all the cannons of consumer justice. Therefore, this complaint is maintainable and allowable in part.
23. In the result, this complaint is partly allowed, thereby the opposite parties 2 and 3 are directed to allow the now or never offer with a compensation of ` 1,500 (Rupees One thousand five hundred only) and cost of ` 1,000 (Rupees One thousand only). Opposite parties 2 and 3 are jointly and severally liable to pay the said amount within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest from this date, till the realization of the whole amount.
Pronounced in the Open Forum on this the 22nd day of March,
2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Meeradevi. K
PW2 : Chandramohanan. K.N.
Exhibits marked on the side of the complainant:
A1 : Tax invoice dated 30.12.2009 for ` 4,65,650 issued to the 2nd
opposite party to the complainant.
A2 : Order Form dated 23.12.2009 issued by the 2nd opposite party in the
name of the complainant.
A3 : Photocopy of RPT-BANK Voucher dated 28.12.2009 for ` 5,00,000
issued by 2nd opposite party in the name of the complainant.
A4 : Photocopy of Page Nos. 136 & 137 of the owner’s manual and
service book.
A5 : Photocopy of page No.143 of the owner’s manual and service book. A6 : Pre-delivery inspection coupon.
A7 : Photocopy of letter sent by the complainant to the 1st opposite
party.
A8 : Letter dated 17.02.2010 sent by the 1st opposite party to
the complainant.
A9 : Letter dated 18.02.2010 sent by 2nd opposite party to the
complainant.
A10 : Photocopy of the Certificate of registration of the complainant’s
vehicle.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to: (1) Meeradevi. K, Kalluvilayil Ushus,
Mundappally,Peringanad.P.O., Adoor, Pathanamthitta Dist.
(2) M/s. Tata Motors Ltd., Passenger Car Business Unit,
5th Floor, One (1) Forbes, Dr. V.B Gandhi Marg, Fort,
Mumbai – 400023.
(3) M/s. Kulathunkal Motors,Toll Junction, Bye-pass Road,
Anayara, Thiruvananthapuram.
(4) M/s. Kulanthumkal Motors, Branch Office, Pazhamannil
Jessy Towers, Stadium Jn., Pathanamthitta.
(5) Stock file.
