Date of filing:      19.09.2019
                                                                                                                                        Date of disposal : 30.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                   .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                       .....MEMBER I
                 THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L.,                                        ....MEMBER-II
              
RBT/CC. No.140/2022
THIS THURSDAY, THE 30th DAY OF MARCH 2023
(CC.No.142/2019 sent from DCDRC, Chennai North)

Mr.Joseph P Patrick, S/o.Patrick,
No.256, I Block, Sathyavanimuthu Nagar,
Otteri, Chennai 600 012.                                                                       ……Complainant.    
                                                                          //Vs//
1.M/s.Bajaj Auto Private Limited,
   Rep. by its Managing Director,
   Akurdi, Pune 411 035,
   Maharashtra.

2.M/s.Madras Motors,
   Rep. by its Managing Partner,
   Old No.194, New No.627, T.H.Road,
   Tondiarpet, Chennai 600 081.

3.M/s.Vinod Finance,
   Rep. by its Proprietor,
   No.23/2, Mettur Street,
   Ayanavaram, Chennai 600 023.                                                  .......Opposite parties.

Counsel for the complainant                  :   M/s.S.Shujath & P.R.Raj Kumar, Advocate.
Counsel for the opposite parties           :   exparte.
                        
This complaint has been filed before DCDRC, Chennai (North) as CC.No.142/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.140/2022 and this complaint coming before us on various dates and finally on 20.03.2023 in the presence of M/s.S.Shujath & P.R.Raj Kumar counsel for the complainant and opposite parties remaining exparte and upon perusing the documents and evidences of complainant this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service with respect to the vehicle sold to the complainant suffers with inherent manufacturing defect along with a prayer to direct the opposite parties to replace the defective vehicle with a new one or in alternative to return his vehicle cost of Rs.1,56,550/- with bank interest till disposal of the complaint and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony caused to the complainant.
Summary of facts culminating into complaint:-

The complainant was an experienced Auto Driver and auto driving was the source of income for the complainant and his family.  Hence, complainant purchased a passenger auto from the 2nd opposite party manufactured by the 1st opposite party for Rs.1,56,550/-. The major component of the sale money was contributed by the 3rd opposite party/Financier directly to the 2nd opposite party. The complainant took possession of the auto bearing Registration No.TN 05 BT 6494 after its registration with the Regional Transport Office, North Chennai on 16.10.2018. Auto was covered with insurance vide policy No.OG-19-1501-1803-00005536 for a period of 09.10.2018 to 08.10.2019. The complainant also holds a valid driving license which was valid till 2023. In less than a month, the vehicle developed a technical snag.  It was found that the vehicle was taking wrong course of direction while the handle-bar placed straight. The complainant had complained the same with the 2nd opposite party and the 3rd opposite party. On 08.11.2018 the fork of the vehicle was replaced by the 2nd opposite party, but the  similar problem subsisted in spite of replacement of better fork. The complainant again on 19.11.2018 gave his vehicle to the 2nd opposite party for similar complaint.  However, the problem persisted even thereafter. A lengthy diagnosis of the vehicle was conducted by the 2nd opposite party and it was ascertained by their own Service Engineers that the replacement of the chassis was only the viable option for the course correction of the vehicle. The complainant and the 3rd opposite party were called to provide an consent undertaking to replace the chassis with a new one. The complainant with no other effective remedy gave an undertaking and consent in a letter addressed to the 2nd opposite party and similarly the 3rd opposite party also gave an written consent. Even after replacement of the new chassis, the expected relief of course correction of the vehicle could not be achieved and the problem continued.  From the above incidents the complainant realized that the 1st and 2nd opposite parties had delivered him a vehicle with manufacturing defects and it could not be rectified. Hence on 28.02.2019 issued a notice to the 1st opposite party for selling a defective auto and called him to replace the vehicle with a new one or to pay a sum of Rs.5,00,000/- towards compensation. But there was no response. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to replace the defective vehicle with a new one or in alternative to return his vehicle cost of Rs.1,56,550/- with bank interest till disposal of the complaint and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony caused to the complainant.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A16 on their side. Despite service of sufficient notice the 2nd opposite party did not appear before this commission to file any written version and hence he was called absent and was set ex-parte on 28.01.2020 for non filing of written version within the mandatory period as per the statute.
One Mr.Sairam Advocate filed Vakalath for 1st opposite party but he did not file any written version and hence was called absent and set ex-parte on 23.08.2022 for non filing of written version within the mandatory period as per the statute. 
The 3rd opposite party did not appear before this commission to file any written version and hence he was called absent and set exparte on 06.03.2020. Against the exparte order, the 3rd opposite party filed CMP.No.02/2022 to set aside the exparte order passed on 06.03.2020 and the same was dismissed as District Commissions has no power to set aside the ex-parte orders passed by them and hence his set ex-parte order was confirmed.  No proceeding was taken by him to get the order set aside.
Points for consideration:-
Whether the vehicle sold to the complainant suffers with inherent manufacturing defect and whether the same has been successfully proved by the complainant and whether the act of opposite parties 1 to 3 constitutes deficiency in service?
If so to what reliefs the complainant is entitled?
Point No.1:-
The following documents were filed on the side of complainant in support of his contentions;
Invoice given by the 2nd opposite party dated 08.10.2018 was marked as Ex.A1;
Delivery note issued by the 2nd opposite party dated 08.10.2018 was marked as Ex.A2;
Copy of insurance of Auto dated 09.10.2018 was marked as Ex.A3;
 Registration Book was marked as Ex.A4;
Auto-Rickshaw Permit dated 16.10.2018 was marked as Ex.A5;
Auto fitness certificate dated 16.10.2018 was marked as Ex.A6;
Valid driving license of complainant was marked as Ex.A7;
Dealer service – acknowledgement slips was marked as Ex.A8;
Consent for chassis replacement dated 07.12.2018 was marked as Ex.A9;
Third opposite party loan dues book was marked as Ex.A10;
Complainant reporting pain – op slips was marked as Ex.A11;
Warranty period of Auto was marked as Ex.A12;
Notice issued to the 1st opposite party by the complainant dated 28.02.2019 was marked as Ex.A13;
Reply given by the 2nd opposite party to the complainant dated 17.04.2019 was marked as Ex.A14;
Pictures of defective auto chassis/fork was marked as Ex.A15;
 Aadhaar card of the complainant was marked as Ex.A16;
The crux of the oral arguments adduced by the learned counsel appearing for the complainant is that the Bajaj Auto purchased from the opposite parties and financed by the 3rd opposite party was suffering with inherent manufacturing defect which was duly informed to opposite parties 1 & 2 who replaced the chassis of the vehicle after getting necessary permission from the complainant and the 3rd opposite party. Evan after replacement of the chassis by tagging, the same defect of pulling of the vehicle to one side continues.  Thus the complainant after issuance of legal notice had filed the present complaint seeking for replacement of the vehicle with compensation.  All opposite parties 1 to 3 remained exparte.
We perused the pleadings and materials submitted by the complainant vide Ex.A1 to Ex.A6.  We could see that the vehicle was purchased vide invoice dated 08.10.2018 and insured with Bajaj Alliance and registered RTO North Chennai.  The complainant possessing valid driving license was also proved by production of Ex.A7.  Further the consent for chassis replacement dated 07.12.2018 was also submitted by the complainant as Ex.A9 in which it was stated that as the vehicle was pulling towards one side and as there was no remedy even after changing the forks twice.  The 3rd opposite party had also given consent for changing the chassis who was the financier for the vehicle.  Thus it is amply and sufficiently proved that the vehicle was suffering with inherent manufacturing defect.  When the defect could be proved to exist with available documents no expert opinion is necessary. The warranty period for the vehicle was not completed.  In such facts and circumstances we could safely hold that the vehicle delivered to the complainant by the opposite parties 1 & 2 was a defective vehicle and that opposite parties 1 & 2 had committed deficiency in service in not rectifying the same to the satisfaction of the complainant and also not in replacing it in alternative.  This point is answered accordingly holding that the deficiency in service was successfully proved by the complainant and against the opposite parties 1 & 2 alone.
Point No.2:-
As we have held above that opposite parties 1 & 2 had committed deficiency in service in selling the vehicle with inherent manufacturing defect which could not be rectified even after changing the chassis we are of the view that the complainant should be adequately compensated for the same.  Thus, complainant having livelihood only by running the Auto which turns out to be a failure for no fault of him should be provided with a new vehicle by ops 1 & 2 who had committed deficiency in service along with compensation.  Hence we direct the opposite parties 1 & 2 to replace the vehicle with a new one or in alternative to pay the vehicle cost Rs.1,56,550/-to the complainant within six weeks from the date of receipt of copy of this order.  We also award a compensation of Rs.50,000/- to be paid by opposite parties 1 & 2. We also award Rs.10,000/- towards litigation expenses to the complainant. The complaint is dismissed against 3rd opposite party.
In the result, the complaint is dismissed against opposite party 3 and partly allowed against opposite parties 1 & 2directing them;
a) To replace the vehicle with a new one or in alternative to refund the vehicle cost of Rs.1,56,550/- (Rupees one lakh fifty six thousand five hundred and fifty only) within six week from the date of receipt of copy of this order;
b) to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;
c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 30th day of March 2023.

     -Sd-                                      -Sd-                                                      -Sd-
MEMBER-II                      MEMBER –I                                    PRESIDENT

List of document filed by the complainant:-

Ex.A1 08.10.2018 Invoice given by the 2nd opposite party. Xerox
Ex.A2 08.10.2018 Delivery Note. Xerox
Ex.A3 09.10.2018 Copy of insurance. Xerox
Ex.A4 16.10.2018 RC Book. Xerox
Ex.A5 16.10.2018 Auto-rickshaw permit. Xerox
Ex.A6 16.10.2018 Auto fitness certificate. Xerox
Ex.A7 .............. Vaild driving license of complainant. Xerox
Ex.A8 .............. Dealer service – acknowledgement slips. Xerox
Ex.A9 07.12.2018 Consent for chassis replacement. Xerox
Ex.A10 ............... Third opposite party loan dues book. Xerox
Ex.A11 .............. Complainant reporting pain – OP slips. Xerox
Ex.A12 .............. Warranty period of Auto. Xerox
Ex.A13 28.02.2019 Notice issued to 1st opposite party by complainant. Xerox
Ex.A14 17.04.2019 Reply given by the 2nd opposite party to the complainant. Xerox
Ex.A15 .............. Pictures of defective auto chassis /fork. Xerox
Ex.A16 ............... Aadhaar card of the complainant. Xerox

 

     -Sd-                                       -Sd-                                                -Sd-
MEMBER II                          MEMBER I                               PRESIDENT