IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 11th day of April, 2023.
Filed on : 25.07.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.183/2022
between
Complainant:- Opposite parties:-
Smt. Lekshmi Prakash 1. TVS Motor Company
Lekshmi, Pathiyoorkala Post Box No.1, Byathahalli
Keerikkad.P.O, Karthikapally Kadakola Post, Mysore-571531
Taluk, Alappuzha
(Adv. P. Krishnakumar) 2. M/s AST Motors, NH Road,
(Adv. G. Ajith Prasad) Near MSM, Kayamkulam-690501
(Adv. Dileep Rahman)
O R D E R
C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainant’s case is as follows:-
The complainant is the registered owner of the vehicle bearing Reg.No.KL.29-T-1159 TVS Scooty pep. The complainant purchased the said vehicle on 2/7/2021 from the 2nd opposite party. From the 1st day of purchase and usage, the complainant felt discomfort about the performance of the vehicle and after a week the vehicle was not able to ride due to the mistake in its handle, front suspension and the matter has been informed to the 2nd opposite party and as per their instruction the vehicle was entrusted to them for repair. After repair the vehicle was returned to the complainant. The complainant made 3 days repeated visit with her scooter to the 2nd opposite party to rectiry the fault. The 2nd opposite party returned the vehicle to the complainant made her believe that the complainant has been rectified.
But on 28th July 2021 due to repeated complaint the complainant approached the 2nd opposite party. As instructed by them the vehicle kept there on 6th August 2021 they delivered the vehicle to the complainant by claiming that the defects of the vehicle were rectified. Due to the recurring complaint the complainant was forced to visit the 2nd opposite party repeatedly since the 1st four months from the date of purchase. Again on 16th November 2021 the complainant entrusted to the vehicle the 2nd opposite party for rectifying the faults and that time the complainant and received back the vehicle only after 3 weeks. On 3rd February 2022 the complainant approached the 2nd opposite party for rectifying the complaint and they returned the vehicle immediately and saying that the complaint has been rectified.
On 4/2/2022 due to the same complaint the vehicle was entrusted with 2nd opposite party and received back on 9/2/2022. On 7/4/2022 the complainant entrusted the vehicle to the 2nd opposite party and they kept the vehicle with them and the complainant received back the vehicle after 6 weeks. That time also the 2nd opposite party claiming that the defects of the vehicle were rectified. The complaints regarding the front handle and suspension still exists and the complainant is fed up with the usage of the above said vehicle. Hence the complainant approached this Commission and sought following reliefs.
1. To pass an award granting Rs. 1,00,000/- to the complainant towards damages.
2. To pass an award allowing the complaint to recover the cost of the complaint from the opposite parties.
2. Version of the 1st opposite party is as follows:-
All the averments made in the complaint are false, misleading and untenable. The complaint against the 1st opposite party is not maintainable both in law and on facts. The two wheelers manufactured by the 1st opposite party are sold on principle to principle basis” to its various dealers across the country. The dealers are independent parties and not the agents of this opposite party and they act on their own behest and behalf for which the 1st opposite party holds on liability. The complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Act as there is neither any manufacturing defect proved in the vehicle in question nor nay deficiency in service being established against the 1st opposite party.
As per the records of the opposite party the complainant purchased a TVS Scooty Pep vehicle from the 2nd opposite party on 2/7/2021 and all the sale formalities in respect thereof were completed between the complainant and the 1st opposite party. The complainant has wrongly alleged that the vehicle is having manufacturing defect. As per the records of the 1st opposite party vehicle was brought to the authorized dealer of the opposite party on the various issues.
It is pertinent to note that on every occasion, the vehicle was duly serviced to the satisfaction of the complainant and the complainant has duly signed the satisfaction notes. The subject vehicle has been used/driven/ridden for more than 6457kms in span of 1 year from purchase without any issues and this itself suggests that there are no manufacturing defects. It is pertinent to mention that the vehicles manufactured by the 1st opposite party pass through stringent quality checks and road trials before the actual commercial production starts. There is no manufacturing defects in the vehicle and the law has been duly settled in this regard that until and unless the manufacturing defect is established the complainant is not entitled to seek replacement or refund of the vehicle. Hence the complaint filed by the complainant may be dismissed with costs payable to the 1st opposite party.
3. Version of the 2nd opposite party is as follows:-
The complainant had purchased a scooter named TVS scooty pep from this opposite party on 2/7/2021. This opposite party had given detailed description to the complainant regarding the vehicle its service, warranty guidelines and owner’s responsibility on the date of purchase. The 2nd opposite party had signed and handed over the user’s manual along with the vehicle and informed the complainant that all the claims, rights and responsibilities of the complainant over the said vehicle are made according to this user’s manual of opposite party No.2.
The 1st complaint of the vehicle was reported to the 2nd opposite party on 28/7/2021 that the seat lock of the vehicle was not working properly. So the 2nd opposite party replaced seat lock under warranty and delivered the vehicle to the complainant on the same day itself. The allegation that the vehicle was kept with 2nd opposite party till 6/8/2021 is false. On 2/8/2021 a complaint reported that the front wheel is wobbling. Then the 2nd opposite party find that there is slight bend on wheel rim. This is happened because of road condition. So the 2nd opposite party replaced both rim set on warranty. This can be evident from job card. On 6/8/2021 the 1st and 2nd service of the vehicle was done at Sreeragam Motors, Harippad at that time the vehicle was run about 586 kms and on 15/10/2021 2nd service was done at 1355 km. During this time no complaint was reported to the vehicle. On 22/11/2021 the vehicle was brought to the workshop with starting problem and side pulling and rear sound. So the 2nd opposite party replaced terminal sensor and thereby solved the starting problem of the vehicle. Thereafter the 2nd opposite party thoroughly checked the vehicle then it find out that the pivot steering have some damages due to heavy falling to potholes on road and same is noticed to the customer. And then the 2nd opposite party replaced the same as well as all the parts that will affect pivot steering damage on good will warranty. After the above mentioned work, the vehicle was delivered to the complainant on 2/12/2021. On 4/2/2022 the complainant complained through mobile phone that the self start of the vehicle was not working. So the 2nd opposite party attended the vehicle at her place and find out fuse problem, So the same was replaced on the same day itself.
On 8/4/2022 the vehicle was taken to the 2nd opposite party’s service centre with starting complaint, and horn was working problems. On examination it is found that its fuse carrier have complaint so the wiring harness horn assembly, switch, horn and switch starts were replaced on warranty and thereby rectified all the complaints. After that no complaint was reported from this complainant about this vehicle till filing this complaint. The complainant is not entitled to get any amount towards damage. The statement of account is utter false and against law. Therefore, the complaint is to be dismissed.
4. Points that arose for consideration are as follows:-
1. Whether opposite parties committed deficiency in service? If so what is the quantum of compensation?
2. Reliefs and costs?
Evidence consists of oral as well as documentary evidence the complainant was examined as PW1 and Ext.A1 to A7 were marked. Commissioner was examined as PW2 and Ext.C1 was marked. RW1 and 2 were examined from the side of the opposite parties Ext.B1 to B3 were marked. Heard both sides.
5. Point No.1:-
The case of the complainant is that she purchased the disputed two wheeler, from the 2nd opposite party manufactured by the 1st opposite party, suffers from various defects immediately after the purchase. The vehicle is still showing various manufacturing defects. Even though the complainant informed the matter to the opposite parties by email on various occasions. The opposite parties were not taken any steps to rectify the defects or to replace the vehicle with a new one. Due to the defective product and service the complainant suffered mental agony and inconvenience hence filed this complaint.
Opposite parties filed separate versions both of them contented that the vehicle is not suffered any manufacturing defect. The 2nd opposite party contented that whenever the complainant approached the 2nd opposite party the reported defects were rectified under warranty. The 2nd opposite party found that there is a slight bend on wheel rim. This is happened because of the road condition. The 2nd opposite party replace the same on warranty at the time of 1st service the vehicle was run about 586 km and the 2nd service was done at 1355km. During this time no complaint was reported to the vehicle. On 22/11/2021 the vehicle was produced to the work shop with same defects. The 2nd opposite party thoroughly checked the vehicle then it find out that the pivot steering have some damages due to heavy falling to potholes on road and same is noticed to the complainant. Then the 2nd opposite party replace the defective part on warranty. After the said work the vehicle was delivered to the complainant on 2/12/2021. On 4/2/2022 another fault reported by the complainant and the 2nd opposite party attended the vehicle and find out fuse problem . The same was replaced on the same day itself. Further on 8/4/2022 the vehicle was taken to the 2nd opposite party with the complaint of starting trouble and horn working problems. On that occasions also replace the defective part and rectified on the complaints. After that no complaints was reported to the opposite parties till the complaint. So there is no deficiency of service from the part of 2nd opposite party.
Admittedly, the vehicle in dispute was repaired several times due to various complaints. The vehicle was purchased on 2.7.2021. RW2, the manager of the 2nd opposite party deposed that they tried to rectify all the complaints but many complaints have been repeated. Further added that some defects could not be rectified to the complainant's satisfaction. It is evident from the records that said defects occurred within 8 months after the purchase.PW1, the complainant deposed that the 2nd opposite party cured the defect but repeated the same complaint it is due to the manufacturing defect. On perusal of Ext. A6 ( 6th document in Ext. B3 series), in which the complainant endorsed that some complaints remain un-rectified. The complainant alleged that each time the vehicle was kept at the 2nd opposite parties for several days for repair. But RW2 deposed that repairing was done in time. Later he admitted that some complaints took up to 30-45 days to rectify. RW1,the territory manager of 1st opposite party deposed that the reason for repeating the same complaint after the rectification was because the periodical service was not done properly. The 4th service was done 7 months after the 3rd service. Further, he admitted that at the time of the 4th service the vehicle was with them and they could not do said service without the permission of the complainant. But no where it is found on record that the complainant did not permit said periodical service. RW2 deposed that Ext. B3 series, the service history of the vehicle are taken from the system. It seems that the original of said document is not produced. Further deposed about the said point when the vehicle is returned, the job card is signed by the customer. The reason for the non-production of said document is that job cards are destroyed after every 3 months. Further added that the job card after filing this case is also not available.RW1 also admitted that the customer put his signature on the job card when it is entrusted for service and on receipt of the vehicle after service. As per Ext. A5, e-mails revealed that the complainant duly informed the opposite parties about the defects of the vehicle that faced by the complainant. The complainant alleged that no appropriate steps are taken by the opposite parties to rectify the defects or replace the vehicle with a new one. RW1 deposed that the vehicle was launched after being convinced that it was suitable for Indian roads. Further admitted that falling into a pothole and bending the rim should be considered an accident. Further that they did not advise claiming insurance claim since the vehicle is new. RW2 deposed that the price shown on the invoice includes road tax, insurance and registration fees and the insurance is comprehensive. Further stated that the endorsement about the accident mentioned in Ext. A6(B3 series) is not mentioned in the job card. If there is an accident, the vehicle would have insurance eligibility. But nothing is before us to prove that the defect occurred due to an accident. Therefore, the photographs attached in Ext. B3 has no evidentiary value. It is to be noted that the PW2, AMVI, Sub R.T Office, Kayamkulam, who is the expert Commissioner, deposed that to find out the actual reason for the defect, the vehicle should be dismantled and inspect the same but he did not instruct to do that. Further deposed that he drove the vehicle 70 km on the basis of the said experience with the said vehicle he ascertained the matters and reported. In Ext. C1,the commission report mentioned the defects among them one is tightness of the steering , this is one of the defect alleged by the complainant. PW2 deposed that steering complaint is not depending the road condition, when there are more complaints more effort is required further deposed that not all reported defects are minor in nature. As per the defects reported under the 3rd head, PW2 stated that the vehicle should respond according to the accelerator but this vehicle did not respond 3-4 times. It seems that the Commissioner reported the defects from the experience of driving the disputed vehicle. From the above discussions, it is found that the alleged defects are still persisting. Moreover, it has come out in evidence that on several occasions the vehicle was kept with 2nd opposite party for repairing and replacing the defective parts of the vehicle within a short period after its purchase. Hence we find that with the recurring defects and its rectification, the complainant suffered mental agony which is attributed to deficiency in service. Therefore, both opposite parties, the manufacturer and the dealer is liable to compensate the complainant.
6. Point. No. 2 :-
In a result, the complaint is allowed in part and direct as follows: -
- The opposite parties are jointly and severally liable to pay Rs. 25,000/-(Rupees twenty five thousand only) towards compensation for deficiency in service to the complainant, failing which the said amount shall carry interest @9%p. a from the date of complaint till realization.
- Both opposite parties are jointly and severally liable to pay Rs. 10,000/-(Rupees Ten thousand only) towards litigation cost to the complainant.
The order shall be complied within one month from the date of the receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 11th day of April, 2023.
Sd/- Smt.C.K.Lekhamma (Member)
Sd/- Sri.S.SanthoshKumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Lakshmi Prakash (Complainant)
PW2 - Sunil Kumar.(Commissioner)
Ext.A1 - Tax Invoice dtd. 28-6-2021
Ext.A2 - Advocate Notice dtd/ 25//2/2022
Ext.A3 - Copy of AD cards
Ext.A4 - Copy of RC
Ext.A5 - Copy of Mail
Ext.A6 - Requisition Slip
Ext.A7 - Free Service Record Sheet
Ext.C1 - Commission Report
Evidence of the opposite parties:
RW1 - Rijo Joseph (Witness)
RW2 - Shan.S(witness)
Ext.B1series - Vehicle Service History
Ext.B2 - Service history
Ext.B3series - Job cards
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
