Tamil Nadu

South Chennai

CC/465/2014

M/s.S.Siva - Complainant(s)

Versus

M/s.Concord Motors(India) Lta., - Opp.Party(s)

P.K.Mohan Vel

30 Aug 2022

ORDER

Date of Complaint Filed : 26.11.2014

Date of Reservation      : 27.08.2022

Date of Order               : 30.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

 

CONSUMER COMPLAINT No.465 /2014

TUESDAY, THE 30th DAY OF AUGUST 2022

S.Siva, S/o. Mr. P. Subramani,

Reptd. By his Power Agent,

Mr.P.Subramani,

No.1/240-B, Sivan Koil Street,

Padur, - 603103.

Kancheepuram District.                                                                                                                                                      ... Complainant                         

 

..Vs..

1.The Sales Manager,

   M/s. Concorde Motors [India] Ltd,

   No.42, Velachery Road, Guindy,

   Chennai - 600 032.

 

2.The Manager,

   M/s. Tata Motors Finance Ltd,

   No.45, Dhamodharan Street,

   T.Nagar, Chennai - 600 017.

 

3.The Works Manager,

   M/s. Concorde Motors [India] Ltd,

   No.70/2, ALM Complex, E.C.R,

   Enjambakkam, [ Opp. Prarthana Theatre],

   Chennai - 600 041.                                                                                                                                                    ...  Opposite Parties

 

******

Counsel for the Complainant                   : M/s.P.K. Mohan Vel

Counsel for the 1st & 3rd Opposite Parties  : M/s.V. Annalakshmi

Counsel for the 2nd Opposite Party           : Exparte

 

        On perusal of records and after having heard the oral arguments of the Counsel for the Opposite Parties 1 and 3 and on endorsement made by the Complainant the written arguments being treated as oral arguments, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R.Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to take delivery of the TATA NANO CAR and to pay a sum of Rs.2,00,000/- and to pay a sum of Rs.50,000/- being the damages amount for the mental agony and the repairing charges so far incurred by the Complainant and enabling any E.M.I cheques issued by the Complainant in favour of the 2nd Opposite Party and to replace & deliver a new TATA NANO CAR.

2.     The averments of Complaint in brief are as follows:-

On 28.05.2012 the Complainant has purchased a TATA NANO - LX 273 - Petrol Engine [BHARAT STAGE IV] Green Colour Car, bearing Registration number TN 22 CS 1461, for a sum of Rs.2,02,367/-. As the 2nd Opposite Party has financed for the purchase of the said car, the same has been hypothecated with the 2nd Opposite Party. As a security for the due payment of EMIs, the 2nd Opposite Party has obtained from him in favour of the 2nd Opposite Party, 10 nos of Cheques bearing nos. 076301 to 076310 for a sum of Rs. 4,990/- each, drawn on the Central Bank of India, Kelambakkam Branch, at No.173, Old Mahabalipuram Road, Kanchipuram District - 603 103. The date of its purchase, the car was functioning. He serviced his said car with the 3rd Opposite Party, which is an Authorized Service Agent of the 1st Opposite Party. Hence, due to some complaints in the said car, earlier on  20-05-2013 he had sent a legal notice to all the opposite Parties for defects in manufacturing and deficiency in service of the said car. On receipt of the same, later the defects of the same were set right by the 3rd Opposite Party. When the coverage of the car was 2,000 kms, he noticed that it's to the rear inside tyres were worn out. So, the car was produced before the 3rd Opposite Party and he had complained about the said defect, for which the third Opposite Party had suggested that the wheel alignment has to be checked up, hence the car was taken to the work shop he was asked to wait, Two hours later, the officials of the 3rd Opposite Party had delivered the car to the Complainant stating that they have checked the alignment. Subsequently, when the coverage of the car was in 3,000 Kms, once again both the said rear tyre's inner sides were extremely worn out, than the earlier occasion. Once again, when the said defects in the said car were reported to the 3rd Opposite Party, he had informed him to inform the same, when the car would come for next service. On 22-03-2014, when he had given the car for service with the 3rd Opposite Party, the said defect regarding the worn out of the rear side tyres were reported to them and they said that it will be rectified along with the other things. On 25-03-2014 after payment of the sum of Rs.2198/- to the 3rd Opposite Party being the service charges, when the Complainant’s father had taken delivery of the car, the 3rd Opposite Party had informed him that the said tyres positions were changed by re-fitting the same and further they informed that the photographs of the said tyres have been sent to the 1st Opposite Party and as soon as they get the message from them, they would replace the said 2 rear tyres. Believing the said words of the 3rd Opposite Party the Complainant’s father has taken delivery of the car from the 3rd Opposite Party. Later whenever the Complainant rang up to the 3rd Opposite Party and enquired him, about the receipt of any communication form the 1st Opposite Party he will give only negative reply. On 10.05.2014 due to manufacturing defect of the car the 1st Opposite Party, its left rear side wheel bursted, when the car was on road, as it was already worn out. On 14.05.2014 when the incident was informed to the P.R.O of the 3rd Opposite Party they had treated the Complainant in a very bad manner and it had caused deficiency of service and mental agony to the Complainant. The rear side tyres of his said car is in a very bad condition after it's said services done by the Third Opposite Party, there is no use in keeping the car with him. Hence, he intends to return the said car to the 1st Opposite Party. Hence, there is no use in paying the monthly EMI, is, of the car to the 2nd Opposite Party and direct the 2nd Opposite Party not to deposit the said cheques in their hand. Further, he instructed his Bank to Stop Payment of the Cheques in the hands of the 2nd Opposite Party. Hence, the Complainant had instructed his Bank, not to pay any amount from the Complainant's account to the 2nd Opposite Party, towards the E.M.Is of the said car. In this connection, the Complainant had sent legal notices dated 20.05.2014 & 03.06.2014 to the Opposite Parties and his bank, thereby requested them to replace a new TATA NANO CAR/REPAIR the said defects and deliver the TATA NANO CAR bearing Registration No. TN 22 CS 1461 FORTHWITH to the Complainant, the 2nd Opposite Party not to collect any E.M.I.s from the Complainant / deposit his cheques in their hand, till the replacement of a new TATA NANO CAR, and instructed his bank not to pay any amount from the Complainant's account to the 2nd Opposite Party, towards the E.M.1.s, of the said car. Even though the Opposite Parties have received the above said notices, they have not issued any reply for the same, which itself proves that they have accepted the claim made by the Complainant, but not complied the same. The henchmen was sent to the Complainant’s house and threatened him and also made threatening calls to the Complainant’s father’s cell. On 01.11.2014 the Complainant had sent a notice but there was no reply. Hence the complaint.

3. Written Version filed by the 1st & 3rd Opposite Parties in brief is as follows:-

The Car purchased by the Complainant is of the highest quality, fast moving. Successful and best selling models in the Country. The Complainant has taken delivery of the car after being satisfied with the condition of the vehicle and its performance. All the vehicles/ cars manufactured in the plant are put through stringent quality check by the quality assurance department and approved by the Automotive research Association of India (ARAI) before being cleared. They carryout pre delivery inspection of all passenger cars utility vehicles and commercial vehicles before selling it to the Customers as per the standard check list. Moreover it is represented that the said car was delivered after carrying out of pre delivery inspection (PDI) of the vehicle by them. So the vehicle is not a faulty vehicle as alleged by the Complainant. They are ably supported by the authorized service centres having excellent workshop setup for after sales servicing of the utility vehicles, which are manned by qualified and experienced personnel only. The network of such workshops/service points is being continuously enhanced & widened in order to bring maximum efficient service as closure to the customers door steps as far as possible. Those workshops provide scheduled service, running repairs, major repairs, spare-parts support and even carryout accident repairs to the passenger cars and utility vehicles. That the Vehicle purchased by the Complainant requires mandatory servicing and replacements of specified components viz., airfilter, fuel filter etc., at recommended intervals as mentioned in the owner's manual and service book given at the time of sale, for smooth running and optimum performance. The Complainant had failed and neglected to follow the mandatory services. The service history clearly showed that the Complainant failed to maintain the Vehicle as per the recommended schedule. The vehicle is checked at the workshop by the quality Inspector (Q.I) and by the diagnostic expert cum trainer (DED) during pre and post repairs to ensure quality workmanship. The service advisor of the workshop, who interfaces 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 after every service/ repairs to the entire satisfaction of the customer. The vehicle was attended by their service points fully complying with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the vehicles. Hence, there cannot be any complaint of deficiency of service against them by the Complainant and the complaint deserves to be dismissed with cost. The Complainant has filed this baseless complaint alleging manufacturing problems in the vehicle without having produced any expert opinion in the form of evidence from notified laboratory to prove that the subject vehicle suffers from the problems as alleged, or to establish any manufacturing defect in the vehicle in question and noted sec.13.(1) (c) of the Consumer protection act, 1986. The allegation of the complaint in respect of manufacturing defects in the vehicle in absence of an expert report, miserably fails and the instant complaint deserves to be dismissed and cited Judgment of Hon'ble National Commission in the case of DR. K. Kumar advisor (engineering), Maruthi Udyog Ltd. Vs DR.A.S.Narayana Rao and Anr [ 1 (2010) CPJ 19 (NC)] for the necessity of the expert evidence to prove the submissions of the defects in the vehicle made in the complaint. Hence, this Hon'ble Forum, in absence of any Expert report on behalf of the Complainant, ought to have directed the Complainant to produce an expert's report in support of his allegation as provided in sec.13 (1) (c) of the act above and in absence of the same, the allegation of the Complainant cannot be established and the instant complaint ought to be dismissed with costs. Therefore, the prayers as made by the Complainant for replacement of the vehicle or payment of Rs.2,00,000/- are untenable and unsustainable. And also cited case of Maruthi Udyog Ltd. Vs Sunheel kumar gabgotra & another case (JT 2006 (4) SC 11 ) the Hon'ble Supreme court held that, the Opposite Party cannot be ordered to replace the car or to refund its price merely because some defect appears which can be rectified or defective part can be replaced under warranty. In view thereof complaint seeking replacement of new vehicle of to make payment of the vehicle contrary to law and is untenable. That this Hon'ble Forum while considering the prayers as sought for by the Complainant in the present complaint, ought to keep in mind the Well established principle laid down by the Hon'ble Supreme Court in the case of Bharti Knitting Company vs DHL Worldwide Express Courier (1996) 4 SCC 704, whereby it was held that when the Complainant signs the contract documents, he is bound by its terms & conditions and the onus would be on him to prove the terms & the circumstances, in which be has signed the contract. The same would be evident from clause 9 of the warranty, which states as "the buyer shall have no other rights except those set out above and have particular, no right to repudiate the sale, or any agreement or to claim any reduction on the purchase price of the car or to demand any damages or compensation for loss, incidental or indirect, or inconvenience or consequential damages loss of car, or loss of time or otherwise incurred or accrued." Hence, the Complainant is debarred from claiming any compensation of damages from the Opposite Party. Hence prayed to dismiss the complaint.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-22  were marked.   The 1st and 3rd Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the 1st and 3rd Opposite Parties no documents were marked. 

5.    The 2nd Opposite Party did not appear before this Hon’ble Commission even after notice served on them. Hence set exparte.

  

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

 

 

Point No.1:-

On careful reading of the Complaint, the disputed fact is that the 1st and 3rd Opposite Parties had not rectified the defects of the Complainant’s car, namely, TATA NANO bearing Registration No. TN 22 CS 1461 and hence the defective car to be taken back and to replace and deliver a new Tata Nano Car to the Complainant.

On perusal of the Exhibits marked by the Complainant, it is clear that the subject vehicle was taken up on 03.07.2012 at 493 kms by the Complainant to the 3rd Opposite Party’s service centre for Accidental repairs as evident from Ex.A-7, Tax Invoice dated 03.07.2012 and the same was attended by the 3rd Opposite Party and repaired trailing arm welded/machined, wheel rim & disc replaced, rear tyre replaced, wheel cover replaced, Sheet metal welded/repair trailing arm bush replaced, Sheet metal welding/repair anti rust treatment done, as found in Ex.A-7. Further as per Ex.A-7, a total sum of Rs.13,490/- charged, of which after adjustment of Insurance claim for a sum of Rs.8,724/-, the balance of Rs.4766/- has been paid by the Complainant and thereafter the vehicle was taken delivery by the Complainant. The said fact has been suppressed in the Present Complaint filed by the Complainant and had approached this Commission with clear suppression of material facts and had claimed the defects that existed subsequent to the accident, that too after warranty period, as manufacturing defects, which defects could be rectified and having rectified by the 3rd Opposite Party, hence the claim of the Complainant to take back his car and to replace and deliver a new Tata Nano Car and also for compensation along with cost, are not legally sustainable. Further the 2nd Opposite Party being a Financier, though has been set exparte, is in no way connected to the issues alleged by the Complainant. Hence, we hold that the Opposite Parties 1 to 3 had not acted negligently as alleged in the Complaint by the Complainant. Therefore, we are of the considered view that the Opposite Parties 1 to 3 had not committed any deficiency of service as alleged by the Complainant. Accordingly Point No.1 is answered.

Point Nos.2 and 3:-

As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the Complaint and also not entitled any other relief/s. Accordingly Point Nos.2 and 3 are answered.

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 30th of August 2022.  

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1

   -

Welcome letter by the 1st Opposite Party to the Complainant

Ex.A2

28.05.2012

Tax invoice issued by the 1st Opposite Party to the Complainant

Ex.A3

28.05.2012

Debit note issued by the 1st Opposite Party to the Complainant

Ex.A4

05.06.2012

Registration certificate of the car of the Complainant

Ex.A5

11.06.2012

Receipt issued by the 1st Opposite Party to the Complainant

Ex.A6

21.06.2012

Body shop job card issued by the 2nd Oppsotie Party to the Complainant

Ex.A7

03.07.2012

Tax invoice issued by the 2nd Oppsotie Party to the Complainant

Ex.A8

19.04..2013

Tax invoice issued by the 2nd Opposite Party to the Complainant

Ex.A9

20.05.2013

Legal notice sent to the Opposite Parties by the Complainant’s counsel

Ex.A10

05.06.2013

Tax invoice issued by the 2nd Opposite Party to the Complainant

Ex.A11

22.03.2014

Job slip issued by the 2nd Opposite Party to the Complainant

Ex.A12

25.03.2014

Receipt issued by the 2nd Opposite Party to the Complainant

Ex.A13

19.05.2014

Contract details of the 2nd Opposite Party to the Complainant

Ex.A14

19.05.2014

Repayment details issued by the 2nd Opposite Party to the Complainant

Ex.A15

19.05.2014

Repayment schedule issued by the 2nd Opposite Party to the Complainant

Ex.A16

31.05.2014

Bill issued by Mangal Tyres to the Complainant

Ex.A17

03.06.2014

Legal notice sent to the Opposite Parties by the Complainant’s counsel

Ex.A18

04.06.2014

Ack. Cards of the 2nd & 3rd Opposite Parties & the central Bank of India

Ex.A19

05.06.2014

Ack. Cards of the 1st Opposite Party

Ex.A20

01.11.2014

Legal notice sent to the 2nd Opposite Party by the Complainant’s counsel

Ex.A21

   -

Ack. Card of the 2nd Opposite Party and the Commissioner of Police

Ex.A22

24.11.2014

General power of attorney executed by the Complainant in favour of his father Mr.P.Subramani

 

List of documents filed on the side of the Opposite Parties:-

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT

 

 

 

 

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