BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 276 of 2023.
Date of Institution : 11.07.2023.
Date of Decision : 02.08.2024.
Bhushan Parkash son of Shri Tara Chand, resident of village Raiyan, District Jhajjar, now resident of Ghanta Ghar Chowk, Sirsa, District Sirsa.
……Complainant.
Versus.
1. NMP Motors Authorized Dealer for TVS Motor Co. Ltd. Elina City Mall Near Auto Market Sirsa 125055 Mobile No. 8685000755 through Proprietor/ Authorized Officer.
2. TVS Motor Company Limited 12, Khader Nawaz Khan Road, Nungambakkam Chennai, Chennai TN 60006 IN.
3. Sales/ Service (TVS Motor Company, Post Box No. 4 Harita, Hosur- 635 109, Tel. 04344276780 & Post Box No.1, Byathahalli Village, Kadakola Post, Mysore – 571311 Tel: 0821-2596561.
...…Opposite parties.
Complaint under the Provisions of the Consumer Protection Act.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
SMT. SUKHDEEP KAUR……………………….MEMBER.
SH. OM PARKASH TUTEJA…………………MEMBER
Present: Complainant in person.
Sh. Sandeep Chaudhary, Advocate for opposite party no.1.
Sh. Pankaj Mehta, Advocate for opposite parties no.2 and 3.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to OPs).
2. In brief, the case of complainant is that on 09.03.2023 complainant had purchased a TVS Motor Cycle bearing engine No. DK2KM3304411, Chassis No. MD625CK27M3K09033 Model 2023 from op no.1 and the employee of op no.1 had provided five years guarantee of the motor cycle. That on 14.04.2023 complainant was going to Bazaar on the motor cycle in question but suddenly the motor cycle stopped in the way and despite the fact that he made efforts to start the motor cycle, same was not started and on the same day the complainant took the motor cycle to op no.1 and showed his motor cycle and the workshop worker checked the motor cycle and thereafter he tried to start the motor cycle but the motor cycle did not start for long time and after repair of motor cycle for long time, the same was started. That thereafter motor cycle was given to him and when he asked about the problem in the motor cycle the worker of company did not tell anything to him and also did not issue any job sheet to him and did not tell that what parts were inserted in the motor cycle and it was only told to him that his motor cycle is repaired and stated that they cannot tell what parts have been inserted in the motor cycle as same is in guarantee and it is rule of the company. It is further averred that motor cycle worked properly for two days and one day when he was going on his work on the motor cycle then again the motor cycle was stopped and on 17.04.2023 again complainant visited company and then again the motor cycle was repaired but reason of defect was not told to him and job sheet was also not issued saying that as motor cycle is in guarantee so job sheet is not prepared. It is further averred that after few days, the motor cycle developed defects again and again and for three times the worker of company visited him and took away the motor cycle and after repairs handed over the same to him but did not disclose anything that what problem is developing in the motor cycle. That similarly complainant visited the ops on 08.05.2023, 23.05.2023, 13.06.2023, 21.06.2023, 28.,06.2023 and on 01.07.2023 for repair of motor cycle but each time neither any reason of defect was told to him nor any job sheet was provided to him and ultimately when complainant was so much harassed by visiting the ops time and again, one of the Worker of the company told him that either there is problem in the engine of the motor cycle or there is problem in its fuel pump and throttle body. That when complainant asked that motor cycle is new one and why such problems are coming in the same, then he came to know that its manufacturing year is 2021 but same was purchased by him in 2023. It is further averred that continuously the motor cycle of complainant was developing defects and he kept on visiting the op no.1 and had been making requests to repair the motor cycle properly and to replace the defective parts, if any with new one but Worker of company and its proprietor refused to tell anything and started misbehaving with him and stated that they cannot do anything in the matter and they had to sell the motor cycle which has been sold to him and now it is his responsibility. That when complainant told them that they have stated that motor cycle is having five years guarantee and will give average of 70 Kms. in one liters but the motor cycle is developing defects in just less than four months, then op no.1 became angry and became ready to make quarrel with him and misbehaved with him and he was asked to run away. It is further averred that when complainant made telephonic call to op no.2, head office of company and at customer care, then his complaint was registered vide number 202313653835 and he was assured that motor cycle will be repaired and his grievances will be redressed but after lapse of several days his grievance was not redressed. On 13.06.2023 complainant again made telephonic call to op no.2 and lodged his complaint but no action was taken by op no.2. It is further averred that complainant has to suffer a lot of mental and physical harassment and financial loss because as and when the motor cycle suffers problem, he has no other vehicle and he has to spend Rs.200/- in a day on transportation for going and coming from work. That as the motor cycle stops in the way, there is apprehension of mishappening and he has to feel embarrassment. The complainant is entitled either to refund of amount of motor cycle or replacement of motor cycle with a new one as he has apprehension that ops have sold an old motor cycle to him and complainant is also entitled to rent of Rs.200/- per day from 06.07.2023 and is also entitled to compensation of Rs.2,00,000/- for harassment besides litigation expenses of Rs.27,000/-. Hence, this complaint.
3. On notice, ops appeared. Op no.1 filed written statement taking certain preliminary objections. It is submitted that answering op is not responsible for any manufacturing defect of TVS Motor vehicles. It is ops no.2 and 3 who are the manufacturer of the vehicles and in case of any manufacturing defect, it is ops no.2 and 3 who are solely responsible for the same. It is further submitted that at the time of purchase of motor cycle, the worker of answering op assured that in case of defect in the motor cycle, the said defect will be removed by them or in case of major defect, then it will be get removed from ops no.2 and 3 within the warranty period. The complainant visited answering op’s show room with the alleged defect in the motor cycle upon which the workers of answering op checked the motor cycle of complainant and removed the said defect. However, answering op has not charged from complainant for removing the said defect as the vehicle was within warranty period and as per company rules the workers of answering op did not supply particulars of the parts changed to the complainant. It is further submitted that it is correct that complainant again came to the showroom of answering op with alleged defect in his motor cycle and same was also removed by the workers of answering op. The answering op has co-operated with complainant in removing the defects from the motor cycle and has done its duty in a right and prospective manner and after doing the needful, the motor cycle was given to the complainant. The answering op or its worker have never misbehaved with the complainant rather it is the complainant who used to misbehave with the workers of answering op. The complainant has leveled false and baseless allegations as alleged with an oblique motive to grab a huge compensation from the answering op. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua op no.1 made.
4. Ops no. 2 and 3 also filed written statement raising certain preliminary objections that two-wheelers and three-wheelers manufactured by ops no.2 and 3 are sold on principal to principal basis and they do not manage the dealerships or service centers and neither they are agents of ops no.2 and 3 and that dealers are independent parties and they act on their own behest for which ops no.2 and 3 holds no liability. That complaint does not disclose any manufacturing defect in the vehicle in question nor any deficiency in service being established against ops no.2 and 3, therefore, complaint should be dismissed qua ops no.2 and 3 and that complaint is not maintainable against ops no.2 and 3 for the reason that there is no privity of contract between complainant and ops no.2 and 3 and ops no.2 and 3 are not responsible for the acts and omissions of op no.1. It is further submitted that vehicles manufactured by ops no.2 and 3 including complainant’s vehicle pass through stringent quality checks, road trials and rigorous external quality assessment by competent authority i.e. Automobile Research Association of India, Pune in compliance with the Motor Vehicles Rules, before its launch and sale to the general public. That complainant has grievances only against op no.1, hence instant complaint is not maintainable against ops no.2 and 3 and that complainant has wrongly alleged that vehicle is having manufacturing defect whereas vehicle has no manufacturing defects, whatsoever. It is further submitted that as per vehicle service history furnished by complainant himself, the vehicle was given for service to the op no.1, the unauthorized party herein, a total of five times, mostly for general service upon which labour charges were charged. All other issues of the vehicle were repaired by op no.1 and same was returned to the complainant. In view of the aforesaid, it can be presumed that there were no defects in the vehicle as otherwise alleged by complainant. That present complaint is bad for mis joinder of party. The plain reading of complaint clearly manifests that there is no specific allegation against ops no.2 and 3 and that complainant has alleged manufacturing defect without submitting any expert’s opinion and as such without expert’s opinion, the reliefs claimed cannot be granted in the eyes of law and hence complaint is liable to be dismissed. It is further submitted that merely because the vehicle had been taken to op no.1 several times, it shall not by itself amount to manufacturing defects/ fault in the vehicle. In order to successfully claim a successful refund of the vehicle amount, the complainant bears upon himself the burden to prove manufacturing defect in the vehicle or such deficiency in service on the part of ops no.2 and 3 i.e. the manufacturer.
5. On merits, it is submitted that complainant narrates the incident which only he and op no.1 are aware of. The ops no.2 and 3 are not privy to this information and thus, cannot admit or deny the same. It is alleged by complainant that employees of op no.1 inspected the vehicle for the defect. The vehicle, being a depreciating commodity, after put to use for a certain time experiences wear and tear. The ops no.2 and 3 always puts the interests of its customers above everything and is of the utmost importance. The dealers of ops no.2 and 3 such as op no.1 are sensitized and trained about the same and op no.1 is better positioned to answer these averments. The averment that op no.1 informed the complainant that there is a defect in the fuel pump and throttle body has not been substantiated by the complainant. It is further submitted that complainant has not produced any document that shows a manufacturing defect in the vehicle. The vehicle also suffers such repeated breakdowns if the vehicle is not properly taken care of regularly. The defects in the vehicle are not manufacturing defect but the inherent wear and tear that any vehicle will suffer after being used over a period of time. All other contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua ops no.2 and 3 made.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and copies of documents Ex.C1 to Ex.C7.
7. On the other hand, op no.1 has tendered affidavit of Sh. Nitin Sethi, Partner as Ex. RW1/A. Ops no.2 and 3 have tendered affidavit of Sh. Manas Asija, Territory Manager Service as Ex. RW2/A and documents Ex. RW2/1 and Ex. RW2.2,
8. We have heard learned counsel for the parties and have gone through the case file. Written arguments on behalf of ops no.2 and 3 have also been submitted which have also been perused and same is almost repetition of their written version. Learned counsel for ops no.2 and 3 has also relied upon decisions of the Hon’ble Supreme Court of India in cases titled as Indian Oil Corporation Versus Consumer Protection Council, Kerala and ors. CA No. 7330 of 1993 decided on 07.12.1993, Ravneet Singh Bagga Vs. KML Royal Dutch Airlines and Ors. CA No. 8701 of 1997 decided on 02.11.1999, Canara Bank and ors. Vs. Debasis Das and ors. CA No. 7539 of 1999 decided on 12.03.2003, C.N. Anantharam Vs. Fiat India Ltd. and ors. SLP (C) Nos. 21178-21180 of 2009 decided on 24.11.2010, Branch Manager, Indigo Airlines, Kolkata and ors. Vs. Kalpana Rani and others. CA Nos. 778-779/ 2020 decided on 28.01.2020, SGS India Ltd. vs. Dolphin International Ltd. CA No. 5759 of 2009 decided on 06.10.2021. He has also relied upon judgments of the Hon’ble National Commission in cases titled as Maruti Udyog Limited Vs. Hasmukh Lakshmichand and ors. RP No. 827 of 2004 decided on 26.05.2009, Tata Engineering & Locomotive Co. Ltd. Vs. Rajinder Kumar & anr. decided on 10.07.2019.
9. We have considered the rival contentions of the parties. From the tax invoice dated 09.03.2023 Ex.C1, it is evident that complainant purchased the motor cycle in question from op no.1 for a sum of Rs.54,815/-. The complainant alleges manufacturing defect in the motor cycle in question and also alleged that complainant purchased the motor cycle in the month of March, 2023 but later on he came to know that manufacturing year of the motor cycle in question is 2021 and thus op no.1 has sold an old and defective motor cycle to him which is clear cut deficiency in service and unfair trade practice on the part of ops. From the bill Ex.C1, it is evident that manufacturing month and year of the motor cycle is September, 2021. The op no.1 has not stated that any discount was given to the complainant for selling a motor cycle of 2021 in the year 2023. It cannot be said that complainant was in the knowledge that manufacturing year of the motor cycle is of 2021. According to the complainant he has made several visits to the showroom of op no.1 regarding several defects in the motor cycle in question but motor cycle could not be made defect free even despite several repairs. The op no.1 has also admitted that complainant visited his show room with defect in the motor cycle within warranty period upon which workers of op no.1 checked the motor cycle of complainant and removed the said defect and as per company rules the workers of the op no.1 did not supply particulars of the parts changed to the complainant. The op no.1 has further admitted that complainant again came to the showroom of op no.1 with alleged defect in his motor cycle and same was also removed by the workers of op no.1. So, it is proved on record that complainant has been visiting the op no.1 time and again for removal of defect in the motor cycle in question but despite repairs the motor cycle could not be made defect free. If the op no.1 has changed any parts of the motor cycle in question same should have been disclosed to complainant but op no.1 has refused to do so. It is proved on record that op no.1 has sold an old and defective motor cycle to the complainant. Had the complainant had been aware that motor cycle is of the model of 2021, he would not have purchased the same from op no.1 because a prudent man will not buy an old vehicle without any discount etc. So, it is a clear cut case of deficiency in service and unfair trade practice on the part of op no.1 dealer and as such to end the litigation op no.1 is liable to make refund of the motor cycle in question to the complainant because order of replacement of motor cycle may prolong the litigation between complainant and op no.1 because complainant has already lost his faith in op no.1 who has delivered an old and defective motor cycle to the complainant. However, ops no.2 and 3 manufacturing company cannot be held liable for the mistake committed by op no.1 and it cannot be said that there is any contributory of ops no.2 and 3 in the said act and omission of op no.1.
10. In view of our above discussion, we allow the present complaint qua opposite party no.1 and direct the op no.1 to make refund of the price amount of Rs.54,815/- of the motor cycle to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the above said amount of Rs.54,815/- from op no.1 alongwith interest at the rate of @6% per annum from the date of this order till actual realization. We also direct the op no.1 to further pay a sum of Rs.10,000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. The complainant will hand over the motor cycle in question to op no.1 well in time against proper receipt. However, complaint qua ops no.2 and 3 stands dismissed. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President
Dt. 02.08.2024. District Consumer Disputes
Redressal Commission, Sirsa.
