P.Antonysamy,S/o.Putty pappaiah naidu filed a consumer case on 19 Aug 2016 against M/s.Mahindra &mahindra Ltd,rep by its Managing director in the North Chennai Consumer Court. The case no is 199/2013 and the judgment uploaded on 14 Oct 2016.
Complaint presented on: 15.10.2013
Order pronounced on: 15.09.2016
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd 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 15th 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 5th 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.
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......Opposite Parties |
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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 2nd Opposite Party : M/s.M.P.Mohandass
Counsel for 3rd Opposite Party : M.B.Gopalan
Counsel for 4th 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 2nd opposite party/ dealer on 4.3.2011 with the financial assistance of a private financier and the said vehicle was manufactured by the 1st 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 3rd opposite party/Insurer. The 4th opposite party is the authorized service provider of the 1st 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 2nd & 3rd opposite parties. At their request the Complainant left the vehicle with the 4th opposite party for repair on 6.9.2012. The personals of the 3rd and 4th opposite parties inspected the vehicle and assessed the damages. The 4th 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 4th 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 1st 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 2nd 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 1st service to this Opposite Party’s service centre on 20.04.2011, Second Service on 25.05.2011 and 3rd 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 3rd OPPOSITE PARTY IN BRIEF:
This Opposite Party settled the claim for damages to the Complainant vehicle by paying to the repair/4th 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 4th 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 3rd 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 1st opposite party and the 2nd opposite party who is authorized dealer of the 1st opposite party sold the vehicle and the said vehicle was insured with the 3rd opposite party and the 4th opposite party is the authorized service provider of the 1st 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 4th opposite party on 6.9.2012. EX.A7 job order issued by the 4th opposite party reveals that the front side of the vehicle was damaged. The 4th opposite party raised bill for Rs.2,74,357/- for repair of the vehicle. The 3rd opposite party/insurer after his surveyor assessment and settled a sum of Rs.1,93,578/- to the 4th opposite party. The 4th opposite party sent Ex.B9 letter to the Complainant about the settlement of amount by the 3rd 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 4th 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 4th opposite party and thereby 4th opposite party committed deficiency in service.
10. The 4th opposite party sent Ex.B9 returned as left. Further the Complainant who had left the vehicle with the 4th 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 4th opposite party at any point of time to pay the balance amount and to get the vehicle. Therefore as service provider the 4th opposite party repaired the vehicle and he also received insurance amount from the 3rd 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 4th opposite party has not committed any deficiency in service.
11. The 3rd 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 3rd opposite party also has not committed any deficiency in service.
12. The 2nd 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 2nd opposite party/dealer has not committed any deficiency in service.
13. The 1st 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 1st opposite party also has not committed any deficiency in service.
14. According to the Complainant the vehicle is now with the 4th 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 15th day of September 2016.
MEMBER – II PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 04.03.2011 Warranty Certificate by the 1st 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 4th Opposite Party
Ex.A8 dated 25.07.2013 Notice issued by the Complainant
Ex.A9 dated 12.08.2013 Reply by the 2nd Opposite Party
Ex.A10 dated 29.07.2013 Acknowledgement card from the 4th Opposite
Party
Ex.A11 dated 27.07.2013 Returned cover from the 3rd Opposite Party
LIST OF DOCUMENTS FILED BY THE 3rd 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 1st OPPOSITE PARTY :
Ex.B7 dated Nil Terms and Conditions of warrant
Ex.B8 dated 15.03.2013 Letter sent by the 4th Opposite Party to the
Complainant
LIST OF DOCUMENTS FILED BY THE 4th OPPOSITE PARTY :
Ex.B9 dated NIL Zulaikha Motors Private Limited
LIST OF DOCUMENTS FILED BY THE 2nd 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 2nd Opposite Party
MEMBER – II PRESIDENT
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