Tamil Nadu

North Chennai

199/2013

P.Antonysamy,S/o.Putty pappaiah naidu - Complainant(s)

Versus

M/s.Mahindra &mahindra Ltd,rep by its Managing director - Opp.Party(s)

M/s.V.S.Usha Rani

19 Aug 2016

ORDER

                                                                          Complaint presented on:  15.10.2013

                                                                             Order pronounced on:  15.09.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 15^th  DAY OF SEPTEMBER 2016

 

C.C.NO.199/2013

 

 

P.Anthonysamy,

S/o.Putty Pappaiah Naidu,

No.4, Selliamman Nagar Extension,

Nerkundram, Chennai – 600 107.

 

                                                                                    ..... Complainant

 

..Vs..

 

1.M/s. Mahindra & Mahindra Ltd.,

Rep. by its Managing Director,

Gateway Building, Apollo,

Bunder, Mumbai – 400 039. India.

 

2.M/s. M.P.L. Automobiles Agencies Pvt. Ltd.,

107/1, Nelson Manickam Road, Aminijikarai,

Chennai – 600 029.

 

3. M/s. Balaji Alliance,

New No.497 and 498 Old No.276 and 277,

Isana Kattima Building 5^th Floor,

(Opp. Panchaliamman Temple)

Poonamallee High Road,

Arumbakkam, Chennai – 600 106.

 

 

4.M/s. Zulaikha Motors Pvt. Ltd.,

Rep. by Managing Director,

10/8, (S.P) III Main Road,

Ambattur, Industrial Estate,

Ambattur, Chennai – 600 058.

	......Opposite Parties

Date of complaint                                 : 22.10.2013

Counsel for Complainant                      : M/s.V.S.Usha Rani

Counsel for 1st Opposite party                : M/s. Shivakumar & Suresh

Counsel for 2^nd Opposite Party                : M/s.M.P.Mohandass

Counsel for 3^rd Opposite Party                      : M.B.Gopalan

Counsel for 4^th Opposite Party                      : T.V.Lakshmanan

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

The Complainant is running a tours and travel business. The complainant purchased a Mahendra Zylo car from the 2^nd opposite party/ dealer on 4.3.2011 with the financial assistance of a private financier and the said vehicle was manufactured by the 1^st opposite party. The registration of the vehicle number is TN-02-AQ-8020. The Complainant obtained tourist permit for the vehicle on 16.03.2011. The said vehicle was insured with the 3^rd opposite party/Insurer. The 4^th opposite party is the authorized service provider of the 1^st opposite party. The car met with an accident on 4.9.2012. The vehicle sustained front side damage, which caused damages to the engine. The Complainant informed the accident and damages to the 2^nd & 3^rd opposite parties. At their request the Complainant left the vehicle with the 4^th opposite party for repair on 6.9.2012. The personals of the 3^rd and 4^th opposite parties inspected the vehicle and assessed the damages. The 4^th Opposite Party assessed that the vehicle will be repaired and delivered to the Complainant  within 15 days. Even after expiry of one year, the vehicle was not repaired and delivered to the Complainant and the vehicle is still under the custody of the 4^th opposite party. The Complainant sustained loss of income of Rs.15,000/per month and due to that he suffered with mental agony and hardship. Hence the Complainant filed this Complaint after issuing notice to the opposite parties for loss of income, compensation and for mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE  1^st OPPOSITE PARTY IN BRIEF:

          This Opposite Party manufactured the vehicle purchased by the Complainant. The Complainant used the said vehicle for commercial purpose in order to generate profit in his tours and travel business. The Complainant is an abuse of process of law and is not maintainable as the Complainant has approached this Hon’ble Forum by suppressing the materials facts. The vehicle has been registered as a ‘tourist vehicle’. It is submitted that the vehicle in question has been used for commercial activities in order to generate profit and has covered more than 87,968 kms, within a mere span of 18 months. The extensive usage of the vehicle in question itself establishes that the vehicle is not used in normal personal usage. The vehicle is not having any manufacturing defect and therefore this Opposite Party has not committed any Deficiency in Service.

3. WRITTEN VERSION OF THE  2^nd  OPPOSITE PARTY IN BRIEF:

          This Opposite Party /dealer  admits that the Complainant purchased Xylo Car from this Opposite Party on 03.03.2011. The said car registered as a tourist vehicle. Therefore the Complainant is not a Consumer.  The Complainant is a regular customer of this Opposite Party. The Complainant brought the vehicle for 1^st service to this Opposite Party’s service centre on 20.04.2011, Second Service on 25.05.2011 and  3^rd service on 06.07.2011. The vehicle was delivered after the service with full satisfaction of the Complainant. There is no deficiency alleged against this Opposite Party and prays to dismiss the Complaint with cost.

4. WRITTEN VERSION OF THE  3^rd  OPPOSITE PARTY IN BRIEF:

          This Opposite Party settled the claim for damages to the Complainant vehicle by paying to the repair/4^th Opposite Party for a sum of Rs.1,93,758/- for repairs carried out by him, as early as on 18.02.2013 apart from that amount, the Complainant has not made any further claim with this Opposite Party. The vehicle was commercial vehicles which run 87000km at the time of accident. Based on repair bills dated 31.01.2013 and assessment surveyor  the   admissible damages are arrived and the aforesaid amount paid to the repairer. The surveyor initially assessed the claim at Rs.1,45,030/- and  upon receipt of actual final bills assessed and  revised the claim to Rs.1,93,578/- which has been paid and hence this Opposite Party prays to dismiss the Complaint.

5. WRITTEN VERSION OF THE  4^th  OPPOSITE PARTY IN BRIEF:

          Admittedly, the Complainant purchased the vehicle for running tours and travel business. Therefore, the Complainant is not a Consumer. Accordingly, after completing the repair of external visible damage, when the engine was started, it was found not working. As the 3^rd Opposite Party viewed that the engine damage could not be covered under the insurance policy taken by the Complainant, this Opposite Party could not carry out the repair work. All other works have been completed and it has been informed to the Complainant, and insurance has also reimbursed. When the Complainant was informed about the engine work the Complainant did not respond. This Opposite Party sent a letter dated 15.03.2013 to the Complainant, about the entire facts. The letter was returned with postal endorsement as “Left”. Thereafter, the Complainant sent a lawyer’s notice with false statements, which have been repeated in the Complaint also. The vehicle can be taken back after payment of charges by the Complainant. The vehicle has not been taken back by the Complainant deliberately to avoid repair charges. Further, as stated above the entire fault is on the Complainant himself in not taking delivery of the car even after being informed about the completion of repair work which could be attended to with insurance cover. It is for the Complainant to sort out with insurer any issue relating to engine damage and this Opposite Party cannot be expected to carry out the same free of cost. There was no Deficiency in Service or negligence on part of this Opposite Party. The Complaint also does not make out any cause of action and it is false to state that this Opposite Party dragged its feet when the fault is on the part of the Complainant.

6. POINTS FOR CONSIDERATION:

          1. Whether the Complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what relief?

7. POINT NO :1

It is an admitted fact that the Complainant purchased a Zylo car which was manufactured by the 1^st opposite party and the 2^nd opposite party who is authorized dealer of the 1^st opposite party sold the vehicle and the said vehicle was insured with the 3^rd opposite party and the 4^th opposite party is the authorized service provider of the 1^st opposite party manufacturer.

         8.  The opposite parties contended that the Complainant purchased the said vehicle for his travel business to earn profit and therefore he cannot be considered as a Consumer and on this score alone the Complaint is liable to be rejected. The Complainant himself admitted in his Complaint that he is running tours travels business and towards diversification of his business, he had purchased Mahendra Zylo car and obtained permit to ply the car as tourist vehicle.  The Complainant’s own admission that he is doing travel business and only to expand the business, he has purchased the vehicle clearly establishes that only to augment profit in his business and therefore as contended by the opposite parties we hold that the Complainant is not a Consumer.

9.POINT NO:2

             The Complainant’s  car met with an accident on 4.9.2012 and the front side of the car damaged till the engine of the vehicle. The Complainant informed the opposite parties and left the vehicle for service with 4^th opposite party on 6.9.2012. EX.A7 job order issued by the 4^th opposite party reveals that the front side of the vehicle was damaged. The 4^th opposite party raised bill for Rs.2,74,357/- for repair of the vehicle. The 3^rd opposite party/insurer after his surveyor assessment and settled a sum  of Rs.1,93,578/- to the 4^th opposite party. The 4^th opposite party sent Ex.B9 letter to the Complainant about the settlement of amount by the 3^rd opposite party and requiring the Complainant to pay the balance amount of Rs.8,599/- towards accident repairs and the said letter was returned with endorsement as left. The Complainant contended that the 4^th opposite party had not intimated him that he had repaired the vehicle and to take delivery of the same and the vehicle is still lying with the 4^th opposite party and thereby 4^th opposite party committed deficiency in service.

          10. The 4^th opposite party sent Ex.B9 returned as left. Further the Complainant who had left the vehicle with the 4^th opposite party for service owes a duty to ascertain from him whether the vehicle was repaired or not.  No evidence available on behalf of the Complainant to know that the Complainant reminded the 4^th opposite party at any point of time to pay the balance amount and to get the vehicle. Therefore as service provider the 4^th opposite party repaired the vehicle and he also received insurance amount from the 3^rd opposite party and he has also duly tried to inform the Complainant and the Complainant has not taken any steps to ascertain the status of the vehicle proves that the 4^th opposite party has not committed any deficiency in service.  

          11. The 3^rd opposite party is the  insurer and he had assessed the crime amount through his surveyor and paid a sum of Rs.1,93,757/- towards the Complainant claim.   However the Complainant had not claimed any further amount from the insurance company and in the circumstances the 3^rd opposite party also has not committed any deficiency in service.

          12.  The 2^nd opposite party is only a dealer and he has sold the vehicle to the Complainant and he has nothing to do with any other transactions with the accident of the vehicle and subsequent developments. Therefore we also hold that the 2^nd opposite party/dealer has not committed any deficiency in service.

          13. The 1^st opposite party is the manufacturer of the Complainant vehicle. The Complainant contended that Ex.A7 establishes that front side of the vehicle damaged and thereby consequently engine also got damaged. However the contention of the opposite parties that the vehicle was driven by the driver without oil in the sump and thereby engine got ceased has to be accepted. To accept such contention there is no mechanical or expert evidence is available on behalf of the Complainant and therefore we hold that the 1^st opposite party also has not committed any deficiency in service.

          14. According to the Complainant the vehicle is now with the 4^th opposite party and he had not repaired and delivered the vehicle. Repairing and delivery of the vehicle could be the primary relief for the Complainant. However the Complainant did not seek any such prayer in the Complaint.  The Complainant sought only loss of income and compensation in the complaint cannot be accepted for the above said conclusion. Therefore we hold that the Complainant is not a Consumer and the Complainant has not proved that none of the opposite parties have  committed deficiency in service and hence it is held that the opposite parties 1 to 4 have not committed any deficiency in service.

15. POINT NO:3

Since the Opposite Parties have not committed any deficiency in service, the Complainant is not entitled for any relief in this Complaint and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.  

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 15^th   day of September 2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 04.03.2011                   Warranty Certificate by the 1^st Opposite Party

Ex.A2 dated 04.03.2011                   Certificate of Registration

Ex.A3 dated 16.03.2011                   Permit to the vehicle issued by the Transport

                                                   Department

Ex.A4 dated 22.02.2013                   Statement of Accounts to show the vehicle loan

                                                   details

Ex.A5 dated 29.02.2012                   Certificate –cum-Police Schedule

Ex.A6 dated 29.02.2012                   Receipts to show payment of insurance amount

Ex.A7 dated 06.09.2012                   Job Order issued by the 4^th Opposite Party

Ex.A8 dated 25.07.2013                   Notice issued by the Complainant

Ex.A9 dated 12.08.2013                   Reply by the 2^nd Opposite Party

Ex.A10 dated 29.07.2013                 Acknowledgement card from the 4^th Opposite

                                                   Party

Ex.A11 dated 27.07.2013                 Returned cover from the 3^rd Opposite Party

LIST OF DOCUMENTS FILED BY THE  3^rd  OPPOSITE PARTY :

Ex.B1 dated NIL                     Policy

Ex.B2 dated NIL                     Claim Form

Ex.B3 dated 11.09.2012                   Preliminary Survey Report

Ex.B4 dated NIL                     Final Bill of Repairer

Ex.B5 dated 08.02.2013                   Final Survey Report

Ex.B6 dated 04.02.2014                   Proof of payment of claim

LIST OF DOCUMENTS FILED BY THE  1^st  OPPOSITE PARTY :

Ex.B7 dated Nil                       Terms and Conditions of warrant

Ex.B8 dated 15.03.2013                   Letter sent by the 4^th Opposite Party to the

                                                Complainant

LIST OF DOCUMENTS FILED BY THE  4^th  OPPOSITE PARTY :

 

Ex.B9 dated NIL                     Zulaikha Motors Private Limited

 

LIST OF DOCUMENTS FILED BY THE  2^nd   OPPOSITE PARTY :

 

Ex.B10 dated 03.03.2011                 Tax Invoice issued to the Complainant

Ex.B11 dated 04.03.2011                 Certificate of Registration

Ex.B12 dated 20.04.2011                 Service Report of the vehicle

Ex.B13 dated 25.05.2011                 -do-

Ex.B14 dated 06.07.2011                 -do-

Ex.B15 dated 25.07.2013                 Legal Notice of the Complainant

Ex.B16 dated 12.08.2013                 Reply by 2^nd Opposite Party

 

MEMBER – II                                                               PRESIDENT