Tamil Nadu

North Chennai

CC/70/2018

M.S.Balasubramanian - Complainant(s)

Versus

M/s.TVS.Motors company Jayalakshmi Estate - Opp.Party(s)

Party in Person

14 Oct 2022

ORDER

Complaint presented on  :08.06.2018    Date of disposal               :14.10.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT :  THIRU G. VINOBHA, M.A., B.L.,                                       : PRESIDENT

                       TMT. KAVITHA KANNAN, M.E.                         : MEMBER-I

                       THIRU V. RAMAMURTHY, B.A., B.L., PGDLA : MEMBER-II

 

C.C. No. 70/2018

 

DATED THIS DAY FRIDAY THE 14^TH DAY OF OCTOBER 2022

 

M.S.Balasubramanian,

S/o.M.R.Srinivasan,

No.2/38, Rahul Apartments S1,

2^nd floor, A block, Bak subramaniam street,

Venkatapuram, Ambattur,

Chennai-600 053.

                            

Residing at,

No.6, Thulasi street,

K.K.salai, 11^th junction,

Ambattur, Chennai-600 053.

                                                                                                 .. Complainant.                                                           ..Vs..

 

1.M/s. TVS Motor company,

Represented by its General Manager(legal)

Jayalakshmi estates,

No.8, 5^th floor,

Hondas salai,

Chennai-600 006.

 

2. Goodwill Automotive,

Represented by General Manager,

H-4, 3^rd avenue, B block,

Anna nagar east,

Chennai-600 102.

 

3. M/s. SVS motors,

Represented by its Proprietor,

No.5-B Redhills salai,

Ambattur,

Chennai-600 053

                                                                       ..  Opposite parties.

 Counsel for the complainant                      : Party-in-person

 

 Counsel for 1^st  opposite party                : M/s.Raj makesh

 Counsel for 2^nd and 3^rd opposite party       : Ex-parte

 

 

ORDER

THIRU V. RAMAMURTHY, B.A., B.L., PGDLA : MEMBER-II

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to directing the 1^st Opposite party to pay a sum of Rs.5,00,000/- as compensation towards manufacturing defects and deficiency in service and for hardship and mental agony caused to the complainant. 

1.THE COMPLAINT IN BRIEF:

          The complainant submitted that he is an insurance agent and purchased a two wheeler TVS Star City Plus with registration No. TN13C4271 on 10.06.2015 from the 2^nd opposite party who is the dealer of 1^st opposite party. The complainant submits that two times when the vehicle completed the milage of 17000 kms and 20000 kms he felt noise and heat from the engine and informed the 2^nd opposite party who identified this as transmission problem and replaced the particular parts since the vehicle was under extended warranty.  When the complainant demanded for documents evidencing repairs, the 2^nd opposite party informed that when the repair is undertaken during the extended warranty, no evidence will be given to clients.  The complainant submitted that on 24.03.2017 when the vehicle completed the milage of 24228 kms he took the vehicle for routine maintenance to 2^nd opposite party and took back after routine service.  All of a sudden when the vehicle was at 24500 kms milage, the vehicle stopped in the middle of traffic without pulling power.  The complainant called the 2^nd opposite party and left the vehicle at 2^nd opposite party service center, who in turn repaired the vehicle and handed over after one week.  No charges were levied for this repair.  Again on 24.05.2017 when the vehicle was at 25100 kms after starting the vehicle, there was pulling problem and informed the 2^nd opposite party.  On 26.05.2017, the service technician of 2^nd opposite party towed the vehicle from his house to service center.  It was informed by the service center that Clutch Plate was eroded and it need to be replaced and a sum of Rs.3,533/- required to be spent.  The complainant agreed to that and accordingly the clutch plate was replaced.  The complainant submits that even after the replacement of clutch plate the vehicle again faced problem for just after running of 700 to 1000 kms due to manufacturing defect.  Hence the complainant reported the same to 1^st opposite party and as per their advice when the vehicle was in problem between 24228 kms to 28850 kms, the complainant left the vehicle for repairs at 2^nd opposite party at 25157, 26243, 27210 and 27504 kms and at 3^rd opposite party at 27550, 27556, 28717, 28720 and 28750 kms.  Inspite of repeated repairs, the vehicle was not all right and due to this and manufacturing defect, the complainant was suffering from mental agony. Due to the frequent problems, the complainant lodged a complaint through call center number of 1^st opposite party on 01.09.2017 and 24.01.2018 vide complaint No. 92795 and 100709 respectively.  The complainant also contacted Mr. Dinesh of 1^st opposite party to solve this problem permanently but instead of solving the problem they just dragged indefinitely.  The 1^st, 2^nd and 3^rd opposite parties tried many  times but could not solve the problem,  The complainant had sent communications through whatsapp and e-mail regarding this problem but no reply.  The complainant also sought the details of action taken so far in this regard, but such information was not provided.  When the complainant reported to the 1^st opposite party that the problem was due to manufacturing defect, there was no reply or objection from 1^st opposite party.  Every time it was informed that clutch plate was brought from Hosur Factory and it was changed and no such problem will occur in future.  When the complainant met personally Mr. Dinesh of 1^st Opposite party, his vehicle was taken to 3^rd opposite party at 27550 kms for repair and returned after few days with a promise that problem will not occur in future, but the problem continued.  Due to the continuous struggle with the problem from March 2017 to March 2018, the complainant approached the Consumer Protection Help Centre through e mail on 13.03.2018 for suitable action.  Since no proper response for the phone calls and e-mails from the 1^st opposite party, the Consumer Protection Help Centre advised the complainant to complain with Consumer Commission.  Since the repair was not done to the satisfaction, the complainant could not take the vehicle and use it and hence the vehicle was left with 3^rd opposite party.  The complainant submits when the vehicle was given to 3^rd opposite party on the advice of 1^st opposite party, it is the responsibility of 1^st opposite party for the consequences including insurance and safety of vehicle.   On 24.04.2018 a meeting was arranged between the complainant, Service Manager Mr. Dinesh, Regional Manager Mr. Balakrishnan of 1^st opposite party at 3^rd opposite party service center but during the meeting the complainant was threatened by the 1^st opposite party personnel that if the problem is taken to Consumer Forum, the legal team of 1^st opposite party will tackle the issue suitably and even if the order is infavour of complainant, he has to wait for long time to materialize the order, and by that time the concerned personnel of 1^st opposite party will be transferred elsewhere.  The complainant in return orally informed that for the manufacturing defect and service deficiency of the opposite parties, he will file a case at Consumer court if no reply is received before 18.05.2018.  But no reply has been received from opposite parties.  The complainant had sent an email on 11.05.2018 but no reply has been received and on 15.05.2018 he had sent a notice to opposite parties, which were received by on 16.05.2018 and 17.05.2018 but neither solution to the problem nor reply has been given by opposite parties.  The complainant claims Rs.5,00,000/- towards compensation for the mental agony, loss of income from the opposite parties.  Hence this complaint. 

2.WRITTEN VERSION OF Ist OPPOSITE PARTY IN BRIEF:

The 1^stopposite party submits that they are a manufacture of powered two wheelers and other automotive products.  The 1^st opposite party is the manufacture of TVS Star City Plus and the vehicles used to pass through various tests on all parameters.  The two wheelers manufactured by the 1^st opposite party are sold on principle to principle basis to its various dealers and 2^nd opposite party is one such dealer.  The dealers are independent entities and are not agents of 1^st opposite party.  The 1^st opposite party is only manufacture of the  vehicle  and 2^nd and 3^rd opposite parties are providing services. The role of 1^st opposite party arises only in case of manufacturing defect, in which case only defective components shall be replaced at free of cost during the warranty period.  The onus is on the complainant to prove that there exists a manufacturing defect which is not repairable.  Since the complainant had not disclosed the manufacturing defect which has not been attended by opposite parties, the case needs to be dismissed out rightly.  The 1^st opposite party submits that the vehicle can be subject to verification by an independent expert for any manufacturing defect and in this complaint no evidence on record was furnished to establish manufacturing defect by complainant.  The 1^st opposite party submits that at the time of purchase of vehicle the complainant was given a copy of user manual by which the user of the motor vehicle is guided  through various information with respect to vehicle.  Every owner of the vehicle is required to adhere to the maintenance schedule as prescribed in the Owner’s User Manual for proper maintenance of vehicle and there are five free services. It appears from the service history of vehicle by 2^nd opposite party, the complainant has not been adhering to the maintenance schedule for optimum performance of the vehicle.  The first free service is very important, and it has to be done between 500-700 kms or one month from the date of purchase whichever is earlier whereas the complainant did the first service on 22.07.2015 when the vehicle completed 1175 kms.  The complainant has not availed the subsequent free services in time and also skipped the 5^th free service thereby breaching the terms of the warranty and services.   The 1^st opposite party submits that when the complainant brought the vehicle at 1698 kms, 1^st opposite party attended the wear and tear issues to the complainant’s satisfaction.  Every time when the vehicle was brought to service center, it was thoroughly attended and there is no manufacturing defect as alleged by the complainant.   The 1^st opposite party submits that when the 2^nd opposite party thoroughly checked the vehicle during the second free service and the 1^st opposite party repeatedly intimated the complainant and also by written communications to take delivery of the vehicle, but the complainant refused to take the vehicle rather filed this complaint demanding replacement of vehicle.  The 1^st opposite party submits that the complainant had brought the vehicle to service center on 28.06.2017 at 25157 kms, the chains sprocket and clutch plate were replaced which were worn out due to normal wear and tear.  Again the complainant lodged a complaint on customer helpline number on 01.09.2017 to 1^st opposite party stating the dissatisfaction of vehicle and for which he was requested to bring the vehicle to service center of the dealer and he brought it on 04.09.2017 when the vehicle completed 27210 kms and again a clutch plate was replaced at free of cost.  Even though the vehicle was in good condition, the complainant repeatedly complained to the helpline and the 1^st opposite party service department personally attended the matter and examined the vehicle and found that there was no abnormalities and the complainant was requested to take delivery of vehicle but the complainant ignored and let the vehicle remain at the dealership and further demanded compensation and also refund of the vehicle. The 1^st opposite party has accepted to the extent that the complainant had purchased TVS Star City Plus from 2^nd opposite party on 06.07.2015.  The 1^st opposite party denies the averments in Para 2 of the complaint and stated that the complainant had raised the issue of Engine noise only one time at 26243 kms which was rectified.  The 1^st opposite party denies the averments in para 3 & 4 and on 28.06.2017 when the vehicle was brought to service center for poor pickup, the chains sprocket and clutch plate were replaced.   Based on the complaint through helpline of 1^st opposite party on 01.09.2017, the 1^st opposite party personally checked the vehicle and observed premature wearing out of the clutch due to improper maintenance of the vehicle.  The 1^st opposite party denies the averments in Para 5 & 6 and claims that issues raised by the complainant was attended and rectified and clarified that the issue is not connected with the engine or main component and cannot be termed as a manufacturing defect.  The 1^st opposite party admitted that Officers of 1^st opposite party met the complainant only to provide resolution to the problem and not for threatening the complainant as alleged by him.  The 1^st opposite party denies the averments in para 7 to 9 of the complaint.  The 1^st opposite party denies the allegations that they were not responding properly to the emails of the complainant and in fact a detailed reply was sent to him on 24.05.2018.  The 1^st opposite party further submits that as per the terms of warranty, the opposite parties have fulfilled their obligations by addressing all the issued in the vehicle and even though the clutch and brakes and other normal adjustments do not fall under warranty, for the sole reason of providing customer satisfaction they have replaced the components at free of cost.  The 1^st opposite party denies the averments in para 10 to 13 and reiterated that the vehicle has been attended thoroughly during each visit to the service center and there is no defect in the vehicle.  The 1^st opposite party denies the prayer para and it is not maintainable as there is no manufacturing defect and deficiency in service on the part of 1^st opposite party.  The complainant sustains no physical, financial or mental strain and loss or damages.  Hence the 1^st opposite party for dismissal of complaint.

          In spite of receipt of notice, the 2^nd and 3^rd opposite parties have not appeared before this Commission and hence, they were set  ex-parte.

3. POINTS FOR CONSIDERATION:

1. Whether the opposite parties caused any deficiency in service as alleged in the

    complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint.

     If, so to what extent?

The complainant filed proof affidavit and Ex.A1 to A22 were marked on complainant side.  The 1^st opposite party filed proof affidavit and Ex.B1 to B4 were marked on his side.

4. Point No.1:-

          The complainant had purchased a two-wheeler TVS Star City Plus with registration No. TN13C4271 on 10.06.2015 from the 2^nd opposite party who is the dealer of 1^st opposite party. Two times when the vehicle completed the milage of 17000 kms and 20000 kms the complainant felt noise and heat from the engine and informed the 2^nd opposite party and got repaired.  All of a sudden when the vehicle was at 24500 kms milage, the vehicle stopped in the middle of traffic without pulling power and the complainant called the 2^nd opposite party, who in turn repaired the vehicle and handed over after one week.  Again on 24.05.2017 when the vehicle was at 25100 kms after starting the vehicle, there was pulling problem and informed the 2^nd opposite party.  On 26.05.2017, it was informed by the service center that Clutch Plate was eroded and replaced the same at a cost of Rs.3533/-.  Even after the replacement of clutch plate the vehicle met with problem after just running of 700 to 1000 kms due to manufacturing defect.  Hence the complainant reported the same to 1^st opposite party and as per their advice the vehicle was given to 2^nd opposite party initially and subsequently at 3^rd opposite party.  Due to the frequent problems, the complainant lodged a complaint through call center number of 1^st opposite party on 01.9.2017 and 24.01.2018.  The complainant also contacted Mr. Dinesh of 1^st opposite party to solve this problem. The complainant had sent communications through whatsapp and e mail regarding this problem but no reply.  The complainant also sought the details of action taken so far in this regard, but such information was not provided.  When the complainant reported to the 1^st opposite party that the problem was due to manufacturing defect, there was no reply or objection from 1^st opposite party.  When the complainant met personally Mr. Dinesh of 1^st Opposite party, his vehicle was taken to 3^rd opposite party at 27550 kms for repair and returned after few days with a promise that problem will not occur in future, but the problem continued.  The complainant approached the Consumer Protection Help Centre through e mail on 13.03.2018.  Since there was no proper response for the phone calls and e mails from the 1^st opposite party, the Consumer Protection Help Centre advised the complainant to complain with Consumer Commission.  Since the repair was not done to the satisfaction, the complainant could not take the vehicle and use it and hence the vehicle was left with 3^rd opposite party.  On 24.04.2018 a meeting was arranged between the complainant and 1^st opposite party at 3^rd opposite party service center but in the meeting the complainant was threatened by the 1^st opposite party personnel that if the problem is taken to Consumer Forum, the legal team of 1^st opposite party will tackle the issue suitably.  The complainant had sent an email on 11.05.2018 but no reply has been received and on 15.05.2018 he had sent a notice to opposite parties, which were received by them on 16.05.2018 and 17.05.2018 but neither solution to the problem nor reply has been given by opposite parties.  The complainant claims Rs.5,00,000/- towards compensation for the mental agony, loss of income from the opposite parties

5.  The 1^st opposite party is the manufacturer of TVS Star City Plus and the vehicles manufactured by the 1^st opposite party are sold on principle to principle basis to its various dealers and 2^nd opposite party is one such dealer.  The dealers are independent entities and are not agents of 1^st opposite party.  The 1^st opposite party is only manufacturer of the vehicle  and 2^nd and 3^rd opposite parties are providing services. The role of 1^st opposite party arises only in case of manufacturing defect, in which case only defective components shall be replaced at free of cost during the warranty period.  The onus is on the complainant to prove that there exists a manufacturing defect which is not repairable, and it  has to be subjected to verification by an independent expert for any manufacturing defect and in this complaint there is no technical expert evidence on record was furnished to establish manufacturing defect by the complainant.  Further the complainant has not filed application for appointment of expert or to send the vehicle to a technical expert for getting opinion.   At the time of purchase of vehicle, the complainant was given a copy of user manual by which the user of the motor vehicle is guided  through various information with respect to vehicle.  It appears from the service history, the complainant has not been adhering to the maintenance schedule for optimum performance of the vehicle.  The first free service is very important, and it has to be done between 500-700 kms or one month from the date of purchase whichever is earlier whereas the complainant did the first service on 22.07.2015 when the vehicle completed 1175 kms and also skipped the 5^th free service.   Every time when the vehicle was brought to service center, it was thoroughly attended and there is no manufacturing defect as alleged by the complainant and when the 2^nd opposite party thoroughly checked the vehicle during the second free service and the 1^st opposite party repeatedly intimated the complainant to take the vehicle, but the complainant refused to take the vehicle rather filed this complaint demanding replacement of vehicle.  When complainant had brought the vehicle to service center on 28.06.2017 at 25157 kms, the chains sprocket and clutch plate were replaced which were worn out due to normal wear and tear.  Again the complainant lodged a complaint on customer helpline number on 01.09.2017 to 1^st opposite party stating the dissatisfaction of vehicle and the complainant brought the vehicle on 04.09.2017 when the vehicle completed 27210 kms and again a clutch plate was replaced at free of cost.  Even though the vehicle was in good condition, the complainant repeatedly complained to the helpline and the 1^st opposite party service department personally attended the matter and examined the vehicle and found that there were no abnormalities, and the complainant was requested to take delivery of vehicle but the complainant ignored and let the vehicle remain at the dealership and further demanded compensation and also refund of the vehicle. The 1^st opposite party Officers met the complainant only to provide solution to the problem and not for threatening the complainant as alleged by him.  The 1^st opposite party had sent a detailed reply on 24.05.2018.  As per the terms of warranty, the opposite parties have fulfilled their obligations by addressing all the issues in the vehicle and even though the clutch and brakes and other normal adjustments do not fall under warranty, for the sole reason of providing customer satisfaction they have replaced the components at free of cost.  The 1^st opposite party claims that there is no manufacturing defect and deficiency in service on the part of 1^st opposite party and hence the complaint is not maintainable and prays for dismissal of complaint.

6.  There is no dispute that the complainant had purchased a TVS Star City Plus from 2^nd opposite party on 06.07.2015.  Ex.A1 to A4 were filed by complainant regarding purchase and registration of vehicle.  The complainant contends that the vehicle is having manufacturing defect and the opposite parties were unable to give a permanent solution to this problem and claims for refund of the cost of the vehicle in the proof affidavit.  From the Ex.A5, it is noticed that the complainant had availed his 1^st free service 23.07.2015 when the vehicle completed 1175 kms. 2^nd free service on 02.09.2015 when the vehicle completed 3692 kms.  3^rd free service on 24.11.2015 when the vehicle completed 7260 kms. 4^th free service on 15.02.2016.  5^th free service was not done even though it was due on 04.07.2016. 1^st paid service was done on 08.09.2016 when the vehicle completed 18743 kms.  2^nd paid service on 23.11.2016 when the vehicle completed 20723 kms.  3^rd paid service on 25.03.2016 when the vehicle completed 24220 kms.  4^th paid service on 03.07.2017 when the vehicle completed 25157 kms and the complainant paid a sum of Rs. 3533/- for this service.  From the Ex.A6, it is noticed that subsequent services on 29.07.2017 at 26243 kms, on 06.09.2017 at 27210 kms, on 29.09.2017 at 27504 kms, on 09.11.2017 at 2550 kms, on 17.11.2017 at 2556 kms, on 18.11.2017 at 28717 kms, on 30.11.2017 at 28720 kms, on 27.12.2017 at 28750 kms were done by 2^nd and 3^rd opposite parties.  From the averments of the complainant, after the above-mentioned services, the complainant has not taken delivery of the vehicle and it is lying with 3^rd opposite party till date. 

7.  According to Ex.A8, the complainant had sent e-mails to opposite parties informing the defects of the vehicle and claimed refund of amount since the vehicle is having manufacturing defect.  The complainant also sought the details of service undertaken by the opposite parties.  The complainant had also sent e-mail to consumer protection council informing that the opposite parties are not solving the problem and sought their guidance to clear the problem.  It is also observed from the telephonic conversations with opposite parties and consumer protection council which is marked as Ex. A22, highlighting the manufacturing defect of the vehicle and claiming refund.  The complainant has also filed the conversation between the parties by way of CD which is marked as Ex.A19 and E-mail communication sent by the 1^st opposite party on 20.06.2018 which is marked as Ex.A20.   The complainant in his averments claimed that the last 7 services by the 2^nd and 3^rd opposite parties have not solved the problems and hence the complainant concluded that the vehicle is having manufacturing defect.  The complainant in his averments stated that the opposite parties have agreed that the vehicle is having manufacturing defect as per Ex.A8 and Ex.A22.  The complainant rely on the warranty  which is marked as Ex.A18 wherein it is stated that “The company has taken every care to maintain quality in the manufacture of the TVS Star City+ motorcycle subject to other terms of warranty : During 24 months from the date of purchase or during the first 30000 km of run for the vehicle in the hands of original retail purchaser, whichever is earlier, all parts of the vehicle will prove to the satisfaction of the Company to have manufacturing defect will be repaired or replaced free of cost”.   Hence the complainant claims that the vehicle cost may be refunded due to the manufacturing defect by the 1^st opposite party. 

8.  On the other hand, the 1^st opposite party in their averments stated that the issue of engine noise has been raised by the complainant only one time when the vehicle completed 26243 kms and this was rectified by the opposite parties.  From the service history of vehicle, the 1^st opposite party claims that whenever the vehicle was in brought to service centre with problems, it was attended thoroughly and rectified by the 2^nd and 3^rd opposite parties.  The 1^st opposite party contended that the Complainant had not adhered to the service schedule as per warranty.  From the service history it appears that complainant has not availed the free services in time and skipped the 5^th service.  According to Manual which is marked as Ex. B3 states:

“The first free service at 500-750 kms is most important.  During running-in period all the engine components and other parts will have set in.  All adjustments to be restored, all fasteners to tightened. Engine cum transmission oil to be replaced.  Timely performance of the first service will ensure optimum service life and performance from the engine.”

9. The 1^st opposite party claims that the complainant had breached the terms of the warranty and services.  The complainant on the other hand in his additional written arguments claimed that the vehicle was serviced at regular intervals and for 1^st free service he took the vehicle to service centre after the vehicle completed between 500-750 kms but due to overload of booking by the service centre, it was delayed and the first service was done when the vehicle completed 1175 kms.  As per Ex. A5, the vehicle was given for first service at 1175 kms.  But the complainant has not filed any document to prove that the 1^st service was delayed  due to overloading of booking by the service centre.  The 1^st opposite party claims that they are manufacturer of vehicle and does not deal with service-related issues.  This present issue is not connected with the engine or main component and cannot be termed as a manufacturing defect.  The 1^st opposite party denies that none of the opposite parties agreed that the vehicle is having manufacturing defect.    From the Ex. A8 and Ex.A22, it is found that only complainant has communicated that opposite parties have agreed manufacturing defect of the vehicle, whereas there is no documentary evidence to establish that the opposite parties have agreed that there is manufacturing defect in the vehicle.  According to Ex.B3, the Manual the warranty terms and conditions are as follows :

“The company’s obligation under warranty is limited to repairing or replacing those parts of the vehicle which upon examination by the company may prove to the company’s satisfaction to have a manufacturing defect, and in such cases the company’s decision to either repair or replace the parts is final”

“This warranty shall not apply to :

• Normal maintenance operations such as engine tune-up, decarbonishing, fuel system cleaning, oil changes, head light focusing retightening, brakes as well as other normal adjustments.
• Insignificant factors which do not affect the function of the vehicle, including without limitation, sound, vibration and fluid seep.
• Replacement of normal service items or wear and tear items, including without limitation, bulbs, electrical wiring, filters, spark plugs, chain, sprockets, clutch and brake linings, fasteners, shims, washers, oil seals, gaskets, rubber, plastic and rexine components disc/pads and spokes etc.

10.  The 1^st opposite party claims in spite of above stated warranty conditions the opposite parties attended the faults and replaced the components at free of cost to the satisfaction of complainant.  The 1^st opposite party claims that when there is no manufacturing defect which was duly verified by the service team of 1^st opposite party and even after that the complainant alleged that the vehicle is having manufacturing defect and hence it is the responsibility of the complainant to prove the same.  The 1^st opposite party claims, that the manufacturing defect must be verified by an independent expert and in this case the complainant has not produced any evidence / report from the independent expert to establish manufacturing defect.  The 1^st opposite party claims that the complainant on his own has come to a conclusion that the vehicle has manufacturing defect. 

          11. The 1^st opposite party relied on the Supreme Court Civil Appeal No.3734 of 2000, Maruti Udyog Ltd, Vs Susheel Kumar Gabgotra and Ors decided on 29.03.2006 and extracts of the facts of case are given below :

In support of the appeal, learned counsel for the appellant submitted that both the commission and the High court erred in holding that there was an admission to replace the car and/or admission of any manufacturing defect.  The warranty condition clearly refers to the replacement of defective part and not of the car.  Observations made in the Corpus Juris Secundrum had been read out of context.  It was stated that at most the Commission and the High court could have asked for the replacement of the defective part or to pay the cost thereof and contended that that owner is responsible for any repair or replacement which are not covered by the warranty and further stated replacement of the vehicle was not justified in such circumstances.

          12. The 1^st opposite party also relied upon the National Consumer Disputes Redressal Commission, RP No.374/375 of 2005 decided on 04.08.2009, Classic Automobiles Vs Lila Nand Mishra and Ors and extracts of the facts of case are given below :

The onus to prove that there was manufacturing defect was on complainant/respondent no.1.  We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent no.1 failed to prove that there was any manufacturing defect by producing any cogent evidence.  Complainant failed to produce expert evidence as provided under Sec.13(1)(c) of the Consumer Protection Act, 1986.

The District Forum could have appointed an expert of its own, based upon whose findings, a finding could be recorded with regard to the manufacturing defect.  In the absence of any expert evidence, merely on the fact that the car was repeatedly brought to the service station for repairs/rectifications, it cannot be held that there was a manufacturing defect in the car.  Whenever the car was brought to the service station, it was attended to by the petitioner.  The petitioner is the service provider of the car and counsel for complainant/respondent no.1 was unable to show any deficiency on the part of the petitioner in attending to the car whenever it was brought to the petitioner’s service station.

          13. In this present complaint, it appears from the service history of the vehicle, the vehicle was in good running condition till 25000 kms.  The vehicle was brought to the service centre only after the vehicle completed 25000 kms.  Since there was often repair in the vehicle by which the complainant was not able to drive the vehicle without any hindrance and hence the complainant has come to a conclusion that the vehicle is having manufacturing defect. But, the complainant  has failed to establish any manufacturing defect.  Hence the contention of the complainant that the vehicle is having manufacturing defect is not acceptable. Mere leakage of oil and emission of heat from the engine or replacement of clutch plate on two or three occasions alone will not constitute a manufacturing defect.  

          14. The complainant has not produced any evidence for the alleged threatening by 1^st opposite party and hence the allegation of the complainant is not maintainable.

15. The complainant alleged that the opposite parties never responding to his mails, letters and for phone calls.  From the Ex. A8, Ex. A16 and Ex. A20 which are filed by the complainant, it is ascertained that opposite parties have responded to the mails sent by complainant.  Further 1^st opposite party have sent a reply letter to complainant which is marked as Ex. B2.   It is also seen from the Ex.A22, the conversations between complainant and opposite parties that opposite parties responded properly to the complainant’s communications/conversations.  Hence the contention of the complainant that opposite parties are not responded is not maintainable.

16. The complainant has failed to prove the deficiency in service on the part of the opposite parties by adducing material evidence further the complainant failed to prove that the vehicle is having manufacturing defect.  The complainant failed to prove by adducing expert evidence that the vehicle had manufacturing defect.  Mere repair of the vehicle by replacing certain parts alone will not entitled the complainant to seek for replacement of vehicle or cost of the vehicle.  Strangely the present case though in the year 2018 itself the opposite party has informed the complainant after due repair to take back the vehicle from the service centre but the complainant refused the same and insisted upon replacement of a new vehicle and thereby he wanted to have unlawful enrichment for which he is not entitled. In view of the above said findings it is found that the complainant failed to prove the alleged deficiency in service on the part of opposite parties as alleged in the complaint. Point no.1 answered accordingly.

17. POINT NO.2

Based on finding given Point no.1 there is no deficiency of service on part of opposite parties. But at the same time admittedly from 27.12.2017 the vehicle is in the service center of 3rd opposite party which was not taken back by the complainant even after repair and replacement of defective parts. The complainant has not taken back the vehicle inspite of notice and information given by the 1^st opposite party. In view of findings given in point No.1 the complainant is not entitled either for replacement of vehicle or refund of the value of the vehicle. But if the vehicle is allowed to be retained with the 3rd opposite party it will be a loss to the complainant and unlawful enrichment to the 3rd opposite party which is against natural justice. Hence the  opposite parties 1 to 3 are jointly and severally  directed to return the TVS Star City Plusmotor cycle in a fit and road worthy condition to the complainant within one month from the date of receipt of this order. Point No.2 is answered accordingly.

In the result the opposite parties 1 to 3 are jointly and severally directed to return the TVS Star City Plus Motor Cycle  referred in the complaint in a fit and road worthy running condition to the complainant within one month from the date of receipt of this order copy and the complaint is  disposed off accordingly. Considering the facts of the case there is no order as to cost.   

Dictated  by the Member II to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 14^th day of  October 2022.

MEMBER – I           MEMBER – II                                             PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	06.07.2015	Receipt No.2557.
Ex.A2	06.07.2015	Proforma invoice.
Ex.A3	07.07.2015	Delivery challan
Ex.A4	07.07.2015	Registration certificate vehicle no. TN 13 C 4217
Ex.A5	22.07.2015 to 03.07.2017	Service and labour bill issued by the 2nd opposite party.
Ex.A6	22.07.2015 to 27.12.2017	Service history.
Ex.A7	11.07.2017	Motor insurance certificate cum policy schedule
Ex.A8	07.01.2018 to 06.04.2018	Complaint sent complaint to the 1st opposite party by the complainant through Email.
Ex.A9	13.03.2018	Complaint sent to the consumer right by the complainant through email.
Ex.A10	13.03.2018	Complainant sent the mail to the 2nd opposite party.
Ex.A11	16.04.2018	Reply by the Consumer help centre to the complainant through Email..
Ex.A12	18.04.2018	Complainant thanks letter to consumer protection council.
Ex.A13	11.05.2018	Complainant sent notice to the opposite parties.
Ex.A14	15.05.2018	Complainant sent notice to the opposite parties with postal receipt.
Ex.A15	16.05.201817.05.2018	Acknowledgement card
Ex.A16	17.05.2018	2nd opposite party sent mail to Complainant.
Ex.A17	22.05.2018 29.06.2018& 30.06.2018	Complainant sent mail to the 2nd opposite party.
Ex.A18		Warranty and services
Ex.A19		CD.
Ex.A20	20.06.2018	1st Opposite party sent mail to the complainant.
Ex.A21	21.06.2018	Envelope cover sent by the 1st opposite party.
Ex.A22		CD audio and in printed format.

 

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

Ex.B1		Letter of authorisation
Ex.B2	24.05.2018	Reply letter sent to complainant by 1st opposite party.
Ex.B3		Manual of vehicle
Ex.B4		Job card

 

MEMBER – I           MEMBER – II                                              PRESIDENT