Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:

(1)                This complaint is filed by the Complainant alleging deficiency in service on the part of the Opponent No.1 - Tata Engineering & Locomotive Co. Ltd. and against Opponent No.2 – Concord Motors Ltd.  Complainant pleaded that the Opponent No.1 is the manufacturer of Tata Indica-Euro-II-Diesel-DLX Car and Opponent No.2 is the authorized agent of Opponent no.2 to sell the car and to give after sale service to Car purchasers.  According to Complainant on 2^nd May, 2000 he made payment of `95,853/- and booked passenger car Tata Indica-Euro-II-Diesel-DLX.  Then he had paid further amount of `3,63,000/- on 11.05.2000 as per the estimate of Opponent No.2 with list of additional accessories.  He was issued sales invoice dated 15.05.2000.  He was also given receipt for payments made.  He further pleaded that he had paid `15,775/- towards insurance premium for the said vehicle.  Opponent No.2 promised to deliver the car on 15^th May, 2000.  However, till 26^th May, 2000 car was not delivered.  On 26^th May, 2000 Complainant presented himself for taking delivery of the car, but he was shocked to find that the said vehicle was not in fit condition for the reason that  central locking could not be fitted because the entire stock of locking system had been stolen and the engine roared like Modern Jet when started.  The mechanic of Opponent No.2  poured engine oil by taking out the same from the gauge and sprinkled on the fan belt, but the engine refused to be normal.  Opponent no.2 insisted Complainant to take delivery of the said car, but Complainant refused it.  The Complainant immediately brought this fact to the notice of Senior Vice President of Opponent No.1 and called for refund of his money with interest @24% per annum or in the alternative to supply another new car free of any defects.  He accordingly wrote letter dated 26.05.2000 to that effect.  Opponent No.1 by letter dated 29.05.2000 immediately regretted for the inconvenience caused due to unexpected fan belt noise and assured to tender car on 30^th May, 2000. The Complainant immediately called upon Opponent No.2 to write him as to what remedy was carried out.  The Complainant pleaded that by letter dated 30.05.2000 Opponent No.2 assured delivery of the Car in absolutely good condition and admitted that there was problem in the A.C. and the alternator belt and that they had sent the car at workshop at Pune and they would be delivering to the Complainant the said car on 30.05.2000.  Complainant pleaded that he had refused to take delivery of the Car allotted to them which was defective, but Opponent no.2 forcibly handed over delivery of the vehicle at the premises of the Complainant contrary to the usual procedure of effective delivery at the showroom.  The Complainant pleaded that by letter dated 20.05.2000 Opponent no.2 regretted the inconvenience caused to him.           

(2)                The Complainant pleaded that after effecting delivery on him as aforesaid on 19.06.2000, the Complainant lodged complaint with Opponent No.2 about the car having some problem including the tube which was defective.  Surprisingly, explanation given by Opposite Party No.2 for defective tube was that of tube manufacturer and not of the Company who used such substandard material.  Complainant pleaded that car repeatedly gave some problems.  Opponent repaired some problems on various occasions.  Complainant pleaded that he had various complaints in respect of car which fell on deaf ears and no cognizance of the same was taken by Opponents.  Complainant pleaded that car was inspected and repaired on nearly 8 occasions for the last one year, however the same had yielded no result.  Complainant also lodged complaint with the Western India Automobile Association who sent the car to Mid Town Motors for detailed inspection and a third party opinion.  Mid-Town Motors had given opinion supporting the case of the Complainant.  The Complainant lodged complaint with the Chairman of the Opponent No.1.  Complainant by letter dated 17.10.2001 called upon Opponent No.1 to replace the vehicle or return the entire consideration of the Car.  But Opponent refused to adhere to any of the suggestions.  The Complainant further pleaded that as a result of high handed attitude of the Opponent the Complainant suffered tremendous mental torture.  The Complainant pleaded that Car had spent more time in the garage  than on the road and during this period he was compelled to hire Qualis and had to spend `10,000/- to `15,000/- per month on hire charges.  Complainant further pleaded that during last 18 months he had requested Opponent NOs.1 and 2 to refund the money towards the vehicle which was defective.   The Chairman of the Opponent No.1 contacted the Complainant and called the car for final verification and repairs.  Complainant states that after about 26 days of verification Opponent No.1 brought Car at the residence of the Complainant, but he found that Car was automatically locked and the representative of the Opponent could not get out of the car.  It was noticed that engine could not be stopped by the driver with the help of ignition key.  The representative of the Opponent was put in embarrassing position since he could not shut down the car nor he could open the doors which were automatically locked.  This fact was brought to the notice of Mr.S.G. Saxena, The General Manager of opponent No.1.  Finally, the Complainant by his letter dated 04.12.2000 called upon the Opponent to take back the defective vehicle from his premises and refund the total cost of `4,75,428/- within 7 days of receipt of notice.  They failed to comply with the same and therefore, he has filed this consumer complaint with a prayer that Opponents be directed to take back the defective vehicle bearing No.MH-02-JA-8485 and refund him amount of `4,75,428/- and to direct the Opponent to pay interest @ 18% per annum on the aforesaid amount w.e.f. 11.05.2000 till the date of payment.  He also prayed that Opponents should be directed to pay to him `3,00,000/-  for the hire charges incurred by him during the period when the said vehicle was in the garage.  He also claimed `20,000/- by way of cost.  He filed affidavit in support of his complaint.  He also filed certain documents.

(3)                Opponent No.1 filed written version.  Opponent No.1 pleaded that Opponent No.1 delivered back the vehicle to the Complainant after rectifying minor repairable defects by one of their employees, but Complainant refused to give acknowledgement in writing.  Moreover, by letter dated 13.05.2002 vehicle was delivered to him on 14.05.2002.  Opponent No.1 pleaded that vehicle is with the Complainant and the vehicle is required to be sent to the recognized laboratory as contemplated under the Consumer Protection Act, 1986 and for obtaining laboratory report to establish that vehicle is defective.  The Opponent NO.1 also pleaded that if it is a case of the Complainant that vehicle is not with the Complainant dispute does not survive as a consumer dispute arising out of said vehicle and proper course for the Complainant would be to file Civil Suit.  Opponent No.1 denied that they were guilty of deficiency in service of any kind.  Opponent pleaded that belt noise complaint observed in the car during starting at the time of delivery on 26^th May, 2000, was attended on 30^th  May, 2000 and customer was required to inspect the car and confirm the same.  Pre-delivery inspection i.e. the check-up of car was done by the dealer before the sale of the car, but permitting the pre-delivery inspection to the customer is not the procedure for delivery.  Opponent No.1 pleaded that customer car was reported to workshop on 20^th June, 2000 for service and service was attended with  top priority.  After the above mentioned service, customer had reported two more times for servicing and four times for rectification of minor complaints.  All the complaints were attended to as and when reported.  Opponent No.1 admitted that customer had written letters dated 07.05.2001 to M/s.Concorde Motors, dated 10.08.2001, 10.09.2001 and 14.09.2001 to TELCO.  The customer was requested to make his car available for inspection by letter dated 10.08.2001 and 03.09.2001.  The Complainant refused for the same.  The Mumbai Grahak Panchayat was also requested to advise customer to make his car available for inspection.  They denied the allegations that car is defective in terms of opinion given by Midtown Motors.  The Opponent No.1 pleaded that customer has been using the car regularly and car had covered more than 20000 kilometers.  It pleaded that car was attended in November, 2001 free of cost by way of goodwill gesture, though the car was out of warranty period.  It pleaded that the driver who went to deliver the car to the customer’s house has confirmed the occurrences of electrical malfunctioning once.  The complaint did not reoccur afterwards.  The customer was offered a thorough check up if the complaint reoccurred in future.  The car was fitted with extra electrical equipment, namely the remote locking which may also the cause of malfunction.  The Company pleaded that the complaint therefore should be dismissed with costs.

(4)                Opponent No.2 filed written version.  It pleaded that complaint as filed by the Complainant is false, frivolous and deserves to be dismissed as incorrect and absurd.  It pleaded that delivery of the car was taken by the Complainant after checking car and he himself was duly satisfied.  The defect in fan belt was attended and rectified at the earliest when it was brought to the notice of Opponent No.2.  It pleaded that even today if there is any genuine defect in the car Opponent No.2 is ready and willing to set it right to the satisfaction of the Complainant.  It pleaded that the plethora of correspondence right from the beginning would go to show that the complaints of the Complainant were attended to and allegations are absolutely false and unbelievable.  It pleaded that the person who is highly educated and intelligent as Complainant would not take a delivery of the Car without being satisfied on all counts.  Opponent No.2 pleaded that the defects in the Car in question are highly exaggerated and extremely incorrect and they do not deserve to be judicially scrutinized.  It pleaded that it is ready and willing even today to set right the defects, if any, in the said vehicle, but it denied categorically that there is deficiency in service on its part.  It denied inflated monetary claim made by the Complainant in the prayer clause of the complaint.  Opponent No.2 pleaded that the complaint should be dismissed with cost.

(5)                All parties have filed affidavits in support of their pleadings.  Complainant filed affidavit-in-rejoinder.

(6)                We heard submissions of Advocate Mr.U.B. Wavikar for the Appellant and Mr.J.M. Baphna, Advocate for the Opponent No.1.  None appeared for the Opponent No.2.

(7)                Following points arise for our consideration are:

R  E  A  S  O  N  S

(8)                This is a very strange case wherein in the prayer of the Complainant mentioned that the it should be declared that Opponents are guilty of deficiency in service and unfair trade practice and Opponents should be directed to take back defective vehicle bearing No.MH-02-JA-8485 and refund him an amount of `4,75,428/-, which he paid towards cost as well as insurance fee.  He also claimed interest @18% per annum on the said amount besides cost of the litigation.  However, in the course of pendency of this proceeding at one point of time he claimed that car was not with him.  So, on 09.04.2008 we had directed both the Counsels for the parties to enquire with the R.T.O. about the present status of the vehicle, but, nothing was done in this behalf.  In the written arguments it has been mentioned in paragraph-7 that the Complainant had filed affidavit on 02.07.2008, confirming that he has not been given back the car and he does not know the whereabouts of the said vehicle, but, Complainant himself filed certificate issued by R.T.O. to show that said car is still in the name of the Complainant.  The said affidavit is at page no.148 of this complaint compilation and in this Affidavit he states that according to the letter dated 07.12.2001 issued by the Regional Manager of Opponent No.1 through S.G. Saxena, the said Car was collected from his residence by driver – Mr.Umesh Kadam on 07.12.2001 as per Annexure-C-16.  In paragraph 3 of this affidavit he stated that he refused to take delivery of the said car as it was found to have electrical problems.  He asserts in this affidavit that he had neither taken delivery of the car nor keys were handed over to him and he does not know whereabouts of the said Car.  He stated in this Affidavit further that the driver also not stated that he had handed over the keys of the said car to him. 

(9)                He, however, admitted that as per directions given by this Commission on 09.04.2008 he obtained certificate from R.T.O. dated 15.05.2008 and as per the said certificate the car is registered in his name and not transferred to any other name.  Now, when this is the affidavit of the Complainant filed before us  on 2^nd July, 2007 along with the fact that R.T.O. has certified that he still happens to be the registered owner of the Car in question, he is saying in the same affidavit that as per letter dated 07.12..2001 he had sent the Car to TELCO.  It was collected from his residence by driver – Mr.Umesh Kadam on 07.12.2001.  Thereafter, he had refused to take delivery of the said Car as it was found having electrical problem.  He asserted that he had neither taken delivery of the Car nor taken delivery of the keys.  It means that as per letter dated 2^nd July, 2008 he is not in possession of the said Car.  When this is so, his prayer in the complaint that Opponents should be directed to take back defective Car having Registration No.MH-02-JA-8485 and to refund `4,75,428/- is obviously not acceptable for the simple reason that Complainant is not in possession of the Car as per the Affidavit he has sworn before us on 02.07.2008.  This Affidavit was filed by the Complainant despite the fact that one Mr.Umesh Kadam, driver has sworn Affidavit and filed it before the Commission on 24<sup>th</sup> July, 2002,  that on 10<sup>th</sup> December, 2001 he had personally delivered the Tata Indica Euro II DLX No.MH-02-JA-8485 at the residence of the Complainant - Mr.Abhay Bhatwadekar.  He had delivered it when it was in a roadworthy condition and free from any defects.  He asserted that upon delivery of the Car, the Complainant - Mr.Abhay Bhatawadekar, refused to sign the delivery receipt/acknowledgement that the car was delivered to him.  But he asserted that the said Car was delivered and thereafter he had not taken it back from the Complainant. So, according to Mr.Kadam, he had given delivery of the Car to the Complainant on 10<sup>th</sup> December, 2001, whereas when Complainant filed this complaint in the year 2002 it appears that he was in possession of the Car because his prayer no.2 in the complaint was that Opponents should be directed to take back the defective Car Tata Indica Euro II DLX No.MH-02-JA-8485 or he should be given refund of `4,75,428/-.  But, in the year 2008 the same Complainant has on Affidavit clearly stated that he had refused to take delivery of the Car as it was found to have electrical problems.  He asserted that he had neither taken back delivery of the Car nor the Car was handed over to him and he did not know whereabouts of the said vehicle. Therefore, Complainant’s stand as far as this vehicle is concerned is inconsistent with his own pleading.  In his pleading as found in the complaint it was his case that Car was defective.  He had given the Car several times for repairs, but Car was having some problems and therefore, he had made correspondence with the Opponent Nos.1 and 2, but, the Car is still having the same problem and therefore, in his complaint he prayed that Opponents should be directed to take back the Car from him and refund `4,75,428/-.  This was his prayer in the complaint whereas in the year 2008 on Affidavit he is stating that he is not in possession of his Car, he had not taken back delivery from Mr.Umesh Kadam nor Mr.Umesh Kadam had handed over the keys of the Car to him.  He asserts that the Car is not with him. 

(10)            We are of the view that when he is stating on affidavit that Car is not with him, we cannot direct either Car should be sent for repairs to make it defect free nor we can direct Opponents to take back the Car and to give Complainant an amount of `4,72,428/- as demanded by the Complainant in his prayer clause no.(b) of his complaint.  In such  a situation, we are of  the view that the complaint as filed by the Complainant is appearing to be devoid of any substance and the only course open for us is simply to dismiss the complaint, because, Complainant is taking diversion stand, one in the complaint filed before us and one in the Affidavit he filed on 2^nd July, 2008.  In the circumstances, we are inclined to pass the following order:

O  R  D  E  R

                     (i)          Complaint stands dismissed.

                   (ii)          Parties are left to bear their own costs.

                 (iii)          Inform the parties accordingly.     

Pronounced on 4^th March, 2011.