IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 28th day of October, 2021
Filed on 10.06.2020
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma. BA,LLB(Member)
In
CC/No.124/2020
Between
Complainant:- Opposite parties:-
Sri. Omanakuttan(Radhakrishan) 1. Nissan Motors India Pvt. Ltd
Asha Bhavanam Rep by its Chief Executive
Muthukulam South P.O No.36, Vijaya Raghava Road
Alappuzha - 690506 Parthaswarathipruam , T Nagar
Chennai-600017
(Adv. Sri. Mohamed Subah)
2. EVM Automotice India Pv.t Ltd,
Rep. by its Chief Executive
TVS Road,South Kalamassery,
Kochi-682022
3. EVM Nissan,
Kareelakulangara
Kayamkulam-690572
(Adv. Maneesha R for 2nd & 3rd OP)
4. Nissan Renault Financial Services
India Pvt. Ltd
Rep. by its Chief Exectuive
ASV Ramana Towers,
5th Floor, No.52
Venikantarayana Road,
T. Nagar, Chennai-600017
(Adv. Sri. Sudheesh T.T)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
Brief facts of the complaint is that:-
The complainant purchased a NISSAN DATSON car for an amount of Rs.4,09,144/- from the 3rd opposite party on 22/6/2018. The 1st opposite party is the manufacturer and the 2nd opposite party is one of the dealer of the car. As per the direction of the other opposite parties, the 4th opposite party sanctioned Finance for the purchase. The right from the beginning of purchase itself the automatic gear facility of said vehicle was faulty and did not function at all. Further that for approximately 1200 Km, the vehicle worked properly but after that whenever the vehicle was being run the engine used to shut down by itself. Twice the car was repaired at the Kottayam and Kollam service station of the opposite parties 1 to 3. The complainant alleged that the disputed vehicle has manufacturing defects and the same cannot be rectified by repairs and the defects are beyond the repair. The two years warranty is about to expire and opposite parties 1 to 3 are deliberately making excuses and giving misinformation so that the warranty period will expire. The complaint is regularly paying loan instalments from 22/6/2018 to till date without any default. According to the complainant as the vehicle is worthless he approached before the Commission for seeking the relief that to direct the opposite parties to take back the disputed car after refund Rs. 1,70940/- paid by him as EMI with 12% interest and he is also entitled to get Rs.29,211/- that he paid at the time of delivery with interest. Further to direct the opposite parties to close down all money transaction with respect to the disputed vehicle.
2. Brief facts of the 1st opposite party’s version is that:-
The complainant has miserably failed to provide any substantial pleadings of whatsoever in the complaint or the documentary evidence in support of his untenable claims as far as the 1st opposite party is concerned. The complainant has failed to disclose the alleged cause of action against this opposite party. Complainant had purchased the vehicle on 22/6/2018 and he is using the same till now. This itself is the evidence that the complainant does not make out any case against this opposite party and is therefore liable to be dismissed in limine.
As per the service history the vehicle did not have any issue as claimed by the complainant. After receiving the vehicle for more than 10,784KM, the battery had to be changed and as a matter of goodwill gesture, the same had been replaced free of cost after the expiry of warranty. The complainant himself approached the 4th opposite party for the loan and not as per the direction of the 1st opposite party. There was no such manufacturing defects as alleged by the complainant. If such defects the vehicle could not have covered a mileage of about 12,700 Km in two years. The vehicles undergo stringent quality checks and are dispatched to the dealers after issuing the final certificate and the dealer also carryout predelivery inspection prior to the sale. All the checkups were applied to the disputed vehicle before the delivery and the same was free from defects. There are no issues in the vehicle and the complainant had been extensively using the same and therefore the vehicle is not ‘worthless’ as dishonestly alleged by the complainant. In view of the above the complainant is not entitled to get any of the reliefs and dismiss the complaint.
3. Brief fact of 2nd and 3rd opposite party version is that :-
It is the true fact that the complainant purchased a Nissan DATSON- Ready Go car having Register No. KL-29P-2970 from the 3rd opposite party. Manual Transmission or AMT is also known as Semi-Automatic Transmission or Clutchless Manual Transmission and have to use with utmost care and caution. Driving AMT vehicle constantly on low fuel tend to have a toll on the engine and starting the aforementioned vehicle with a habit of starting the vehicle holding the car key back for a while will cause the car to lose battery power. Hence while purchasing the vehicle it was well informed to the complainant by this opposite parties that not to use such vehicles carelessly or in a rough and rash manner and also this opposite parties gave a complete description regarding the use of the vehicle. Any how the statements and averments in Para No.3 and 4 are absolutely wrong and hence denied. It is the true fact that the automatic gear facility of the aforementioned vehicle was in perfect working condition while purchasing the vehicle by the complainant. It is false that the automatic gear system of the vehicle was not in a working condition from the very beginning. In fact the complainant has purchased the above vehicle while the automatic gear system is fully operational. It is the true fact that the complainant drove the vehicle and bought it with complete satisfaction. It is false that the vehicle was active and has no complaint for up to 1200 Km and that the engine would stop every time the vehicle ran after 1200km is incorrect and hence denied. In fact the aforementioned vehicle was brought to service centres at Kottayam on 19/12/2018 for the normal service of 4818 km. And 2nd normal services was done on 6/7/2019 at 7862km. And in fact the vehicle first breakdown after 10,000km and arrives at the service centre of this opposite party for the first time. Accordingly on 5/12/2019 this opposite party did programming, tyre pressure check and version update and return the vehicle at perfect condition. After that the vehicle was never reported with this opposite party for repair works. Hence it is false that the vehicle started breakdown after 1200Km. In fact the aforementioned vehicle has no manufacturing defect of any kind. All the statements and averments in the complaint are baseless and the imaginary outcome of the complainant to claim unreasonable and unjust claims from this opposite parties. This complaint is hopelessly liable to be dismissed on the ground that the opposite party never committed unfair trade practice and deficiency in service.
4. Brief facts of 4th opposite party’s version is that :-
There is no deficiency of service on the part of this opposite party and therefore no case is made out against this opposite party under the provisions of the Consumer Protection Act, 1986. The averments made by the complaint are vague, baseless and with malafide intention. The complainant has made allegations against only the opposite party no.1,2 and 3 and no averment throughout the entire complaint has been made as against the this opposite party for any alleged deficiency of service, hence the present complaint is bad in law. That the complainant applied voluntarily for the loan facility and is bound by the terms and conditions mentioned in agreement. This opposite party being the financer has acted as per the terms and conditions of the loan agreement. The entire allegations are against the manufacturer of the car and the dealer for the defects as alleged. This opposite party has no role in the dispute in question. This opposite party was merely approached to avail loan facility to purchase the vehicle in question by the Complainant. Therefore, they are being the financier, after processing the requisite documents has processed the loan of the complainant. The Financier is no longer liable for any deficiency in service which can occur in the vehicle and for which the manufacturer and the dealer is liable to the complainant. The financier, under the terms of the contract entered separately with the complainant, is entitled to receive premium on loan facility availed, irrespective of the dispute between the complainant and the opposite party No.1,2 and 3 as it is a separate cause of action.
In the present case, it is crystal clear that there has been no unfair trade practice adopted by this opposite party and / or deficiency in service on the part of this opposite party.
In view of the above facts and submissions this opposite party requests that this complaint is to be dismissed with exemplary costs in favour of them and against the complainant.
5. Points for consideration are:-
1. Whether the complainant is entitled to get any relief sought for?
2. Reliefs and cost if any?
6. The complainant appeared in person and examined him as PW1 and Ext.A1 to A7 were marked. Opposite parties 1 to 4 were appeared and filed their versions separately. Thereafter they abstained from the proceedings. We have heard the part of the complainant.
7. Point No.1:-
Ext.A1 is the copy of retail price break up, Ext.A2 is the copy of Temporary certificate of Registration Ext.A3 is the copy of Form TR5(C), Ext.A4 is the copy of Registration certificate, Ext.A5 is the copy of Vehicle Tax Licence, Ext.A6 is the copy of Tax Invoice and Ext.A7 is the copy of loan application.
The complainant alleged that the vehicle under dispute used to stop after a run of 1200 km and twice the car was repaired at Kottayam and Kollam service stations of opposite parties 1 to 3. The said opposite parties pleaded that the complainant did not bring the vehicle to the service centres for repair as he alleged. The vehicle was brought to the service centre at Kottayam twice for normal repairs. After the vehicles 1st break down on finishing 10,000 km it was brought to the service centre. Accordingly repaired and returned the same at perfect condition. After that the vehicle was never reported for repairs as stated by the complainant. Nothing is on record to prove the allegations of the complainant. It is well settled law that manufacturing defect should be proved by way of expert evidence. But the complainant failed to taken expert opinion of a mechanic to prove the alleged defect of the vehicle. Moreover there is no material placed on record to show that the complainant entrusted the vehicle with the service centers of opposite parties for repairing the same on various occasions. If it is true job sheets or any other materials is with the complaint. In the absence of reliable evidence we, have no hesitation to hold that complainant utterly failed to prove the alleged manufacturing defect of the disputed vehicle.
8. Point No.2:-
In the result we dismiss the complaint. The parties are left to bear their own litigation costs.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 28th day of October, 2021.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Omanakuttan .D(Complainant)
Ext.A1 - Copy of Retail price break up
Ext.A2 - Copy of Temporary Registration Certificate
Ext.A3 - Copy of Form TR5(c)
Ext.A4 - Copy of Registration Certificate
Ext.A5 - Copy of Tax Licence
Ext.A6 - Copy of Tax Invoice
Ext.A7 - Copy of Loan Application
Evidence of the opposite parties:- Nil
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
