By. Sri. Jose. V. Thannikode, President:-

The complaint filed against the opposite parties to reimburse the bill amount of Rs.62,998/- with interest and to pay compensation and cost due to the deficiency of service.

2. The complaint was the owner of the vehicle No: KL 12 D 1686. The vehicle is TATA INDICO Dicor 2007 model. 1^st opposite party is the Authorized dealer of 2^nd, 3^rd and 4^th opposite parties. Petitioner purchased a vehicle No. KL 12 D 1686 from a Muhammad Kutty. The vehicle purchased by the petitioner is TATA indigo dicor 2007 model in the year 2009. The name registered with the authorized dealer is Muhammed kutty in the opposite party record, but in the year 2009 petitioner purchased the vehicle from Muhammad kutty, but all the records of the above said vehicle in the name of Muhammad kutty. As per manual of the TATA company the life of timing belt is up to 1,00,000 kms. The service manual instruct to change the timing best when the vehicle attain 1,00,000 kms. The petitioner and his predecessor completed all the service prescribed by the company but the timing chain broken when the vehicle attains 71000 kms. And the vehicle engine damaged. The vehicle taken to the 1^st opposite party's work shop and completed the engine work. The timing chain broken due to the vague direction of the opposite parties hence the opposite parties are liable to compensate the cost of the engine work. But the 1^st opposite party claimed a bill amount of Rs.62,998/- from the petitioner and assured to the petitioner the amount will be reimbursed after received the amount from the other opposite parties. So the petitioner paid the bill amount of Rs.62,998/-. After several months petitioner demands the bill amount from the 1st opposite party, but the 1^st opposite party refused to return the bill amount with several unreasonable reasons. The opposite parties are liable to repay the bill amount because the timing chain of the vehicle broken during the guarantee period. Non payment of the bill amount to the petitioners is the deficiency of service of the opposite parties, hence they are jointly and severally liable to pay compensation to the petitioner.

3. Notices served to opposite parties and opposite parties filed version. 1^st opposite party's version is as follows:- The complainant is a stranger to the opposite parties and as per the terms in the warranty, the warranty is terminated due to the transfer of the vehicle without consent and knowledge of the opposite parties. As per the condition in warranty . "The warranty shall stand terminated if the car is transferred or otherwise alienated by the buyer without out prior written consent". The registered owner of the vehicle was Mr. Muhammedkutty, the registered owner - transferred the vehicle to the complaint after expiry of warranty period, subsequently owner transferred the vehicle to one Mr. James and the complainant filed the complaint as an experiment with knowledge that the complainant has no locus standi to file complaint. The entire transactions were done without the consent and knowledge of these opposite parties.

4. The possessor of the vehicle repaired the vehicle, paid the repair charge with full satisfaction and an afterthought, approached the honorable forum for illegal and illegitimate benefits by way of harassing the opposite parties. The complainant suppressed the material facts regarding the service and maintenance of vehicle which guaranteed in owner's manual and sale of vehicle to Mr. James a stranger to these opposite parties and approached the honorable forum with unclean hands.

5. The averments in 1 to 4 paragraph has to be proved by the complainant and the claim of purchase of TATA indigo 2007 model in 2009 from one Mohammed kutty in 5th and 6th paragraph is not aware of the opposite parties. The complainant is a total stranger to the opposite parties and the sale or transfer averred in the complaint is not informed to the opposite parties. From the complaint the opposite parties understood that the vehicle is manufactured by the TATA and the claim of complainant that the proper maintenance given to the vehicle is not known to the opposite parties and the complainant has to be proved with cogent evidence.

6. The averment in 7^th paragraph regarding the life of timing belt is 1, 00,000/- is not true or correct, the life of timing of the belt is not defined in anywhere and nobody can predict the life of parts of the vehicle and it is depends upon the man and machine combination and service rendered to the vehicle. The owners manual it is suggested to replace the belt between l00000-100500KMs for smooth running and it is depending on the handling of vehicle. The vehicle is maintained properly, the timing belt will have a life of more than 1, 00,000 Kms and the premature damage of the timing belt and other parts of the vehicle is due to the improper handling of the vehicle.

7. The allegation in 8^th paragraph regarding the claims of proper service given to the vehicle is not true or correct. The averment of services of vehicle is not proper and if any damages caused to the vehicle that is due to callous attitude of the complainant and the predecessor. It is astonishing one is that the brake down of the timing belt is due to the vague direction of the 1^st opposite party and the direction is not narrated in the complaint and it is a tell tale story to depicted by the complainant for litigation purposes. The statement of assurance of refund of the bill amount is also false for the litigation purposes.

8. The complaint is squarely a time barred one. The complaint filed complaint for benefit of warranty after 5 years from the date of purchase. The owner of the vehicle is entitled warranty for the vehicle in a period of 18 months from the date of purchase of vehicle from company and the claim of complainant that the repair and brake down in guarantee period is false and fabricated. The warranty period of the vehicle is only 18 months from the purchase of car from the company irrespective of distance covered and it is entitled only to the registered owner and subsequent purchaser with the consent and knowledge of the opposite parties. Since complainant or the possessor of the vehicle are strangers to the opposite parties, they are not entitled for the benefit under warranty. The warranty shall not covered normal wear and tear of the inherent normal deterioration of the car or any of its parts arising from the actual use of the car or any damages due to negligent or improper operation or storage of the car. The brake down of the belt is due to the improper handling of the vehicle and the opposite parties are not liable for refund of the bill amount.

9. There was no negligence or unfair trade practice on the part of the these opposite parties and the complainant and predecessor is defaulted in providing proper service to the vehicle. It is evident from the service book of opposite party that the complainant was negligent in providing service to the vehicle and due to the carelessness attitude towards the vehicle, the life span of the vehicle is shortened and complainant is trying to misguide the honorable forum by way of depicting a story of brake down time belt due to vague advice of opposite party and the said advice is not narrated in the complaint.

10. The warranty is not covered the timing belt and after the warranty period ie, 18 months from the date of purchase the car, the complainant is not entitled for the benefit of warranty. The service book is speaking evidence that the opposite parties provided the services offered in the manual without any delay. The opposite parties may be permitted to file additional version after producing the service book and other records regarding the maintenance given to the vehicle. The prayers sought in the complaint are not entitled by the complainant and it is just and necessary to dismiss the complaint with exemplary cost of this opposite parties.

11. Opposite parties No.2,3 and 4 filed version stating that the answering opposite parties, Tata Motors Limited, a company duly incorporated under the provisions of the Companies Act, 1913 and having its registered office at Bombay House, 24, Homi Mody Street, Mumbai - 400001 is a renowned manufacturer of various types of Commercial vehicles (Vehicles) and Passenger cars (Cars) across the world and is also acclaimed across the world for its class and quality. At the outset, these answering opposite parties deny all the allegations contained in the petition, except those, which are specifically admitted hereinafter in this reply, and nothing stated in the petition should be deemed to be admitted merely because the same is not specifically traversed. It is also submitted that, anything stated in the petition contrary to and/or inconsistent with what is stated in the present written statement be deemed to be expressly denied. Before traversing in detail the several material allegations, averments and contentions made in the petition under reply, the answering opposite parties submit the preliminary objections regarding the maintainability of the present petition as under:-

12. That the present petition, filed by the complainant is an abuse of process of law and is not maintainable in its present form against these opposite parties. The present petition is liable to be dismissed at its very threshold, as the complainant has not approached this Honorable Forum with clean hands. The same would be evident from the submissions/objections taken in the succeeding paragraphs below. That from the perusal of the petition, it would be observed that the same is vague, baseless and motivated. The complainant has made misconceived and baseless allegations of deficiency in service, gross negligence and unfair trade practice against these opposite parties without any documentary evidence and/or evidence in support of the baseless allegations made in the petition. That a further reading of the complaint petition will disclose that the complainant has no case that there has been any deficiency in service on the part of these opposite parties. These opposite parties have unnecessarily been made a party to the proceedings. It is further submitted that the relationship between these opposite parties and the first opposite party is of principal to principal and these opposite parties are in no way liable or responsible for the alleged transactions between the complainant and the 1^st opposite party. The complaint petition is hence liable to be dismissed for mis-joinder for unnecessary parties. That the complainant is not a consumer within the meaning of the term 'Consumer' as defined under section 2 (1) (d) of the Consumer Protection Act, 1986. In this respect, the opposite parties rely on the judgment reported in Cheema Engineering Services vs. Rajan Singh (1997) 1 SCC 131 wherein the Honorable Supreme Court held that the burden to prove the machine is being used exclusively by himself and the members of his family or whether he employed any workmen or if so, how many, are matters of evidence. The burden is on the respondent to prove them. Hence, the complaint is fit to be dismissed for non disclosure of evidentiary proof for being a consumer. The Honorable Supreme Court of India, in the case of Laxmi Engineering Works vs. PSG Industries Institute (1995 11 CP) I (SC)] held that, if any person has obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the purview of the Consumer Protection Act. On this ground alone, the instant complaint is not maintainable and ought to be summarily rejected. It is submitted that the warranty offered on every vehicle, is subject to the terms & conditions of the warranty as contained in the operator's service book. Under the circumstances, the complainant cannot claim services as per the terms and conditions of the warranty policy as a matter of right. It is further submitted that the present complaint petition is filed long after the expiry of the warranty for the vehicle. These opposite parties are further instructed to state that the sale of the vehicle to the complainant is without the approval of these opposite parties or the first opposite party. That this Honorable Forum, while considering the prayers as sought for by the complainant in the present complaint, ought to keep in mind the well-established principle laid down by the Hon'ble Supreme Court in the case of Bharti Knitting Company vs. DHL Worldwide Express Courier (1996) 4 SCC 704, whereby it was held that when the complainant signs the contract documents, he is bound by its terms & conditions and the onus would be on him to prove the terms & the circumstances, in which he has signed the contract. The same would be evident from clause 6 of the terms & conditions of the warranty, which states as the buyer shall have no other rights except those set out above and have in particular, no right to repudiate any agreement to claim any reduction of the purchase price or to demand any payment of damages or compensation for accrued losses" Hence, the complainant is debarred from claiming any compensation or damages from the opposite parties. Without prejudice to the foregoing submission, it is submitted that the instant complaint makes out no ground for relief under the provisions of section 13 of the Consumer Protection Act, 1986. The onus lies on the complainant to show that the reliefs as contemplated under section 14 can be given for the defect in good supplied or deficiency in service provided to the complainant. In the present case, it is crystal clear that there has been no deficiency in service on the part of the answering opposite parties.

13. That the instant complaint is liable to be dismissed under section 26 of the Consumer Protection Act, with costs for being false, frivolous, vexatious and mis-conceived. it is submitted that the complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering opposite parties, which is a company of long standing and high repute and as a ruse to extract money without just cause or valid reason. That this Honorable Forum has no jurisdiction to entertain, try and adjudicate the present complaint. The complainant has raised issues, which involves questions of facts as well as law, and it necessarily requires deposition of evidence and trials and can be appropriately done only by a civil court. Hence, the proper forum, to agitate the alleged grievance, is before the civil court and proceedings under the Consumer Protection Act envisage a summary procedure of complaints of simple nature and the complicated questions of law and facts can be decided only by a civil court. Therefore, the complaint is liable to be dismissed on this score alone. That the preliminary objections, stated herein above, are of vital nature and go to the very root of the case, which may be decided and adjudicated first. However, without prejudice to the preliminary objections stated herein above, the answering opposite parties submit para wise reply to the complaint in seriatim:-

14. PARAWISE REPLY:- There is no merit or basis in the allegations raised in paras. 6 and 7 of the complaint petition. These opposite parties are instructed to state that the alleged complaints with the timing belt and engine of the vehicle having occurred long after the expiry of the warranty for the vehicle, the complainant is not entitled either in law or on facts to state that for the mere reason the vehicle had not completed 1 lakh kms, he was not liable to pay for the repairs to the timing belt, etc. These opposite parties are further instructed the after the repairs the complainant had paid for the same without any demur after being convinced of the repairs and expressing satisfaction over the same. The aforesaid facts would disclose that there has been no deficiency in service on the part of these opposite parties. Hence these opposite parties are in no way liable or responsible to compensate the complainant. Further the complainant is not entitled either in law or on facts to seek any amount towards compensation For the reasons stated above, it is respectfully submitted that the complainant is not entitled either in law or on facts to the reliefs sought for in the complaint.

15. Complainant filed proof affidavit and he is examined as PW1 and Ext.A1 to A3 were marked. Ext.A1 is the photocopy of the Registration Certificate of the vehicle bearing No. KL 12 D 1686, the RC owner is Viji with effect from 19.01.2008. Ext.A2 is owners manual and service book, wherein the owner is Muhammed kutty, date of delivery is 14.01.2008 and said vehicle's periodical service conducted in 5000 km, 10,000 km, 20,000 km, 25,000 km, 30,000 km, 40,000 km, 50,000 km and 65,000 km. Ext.A3 is the Tax invoice given by the opposite party No.1 to the complainant, which shows the date of repair is 17.01.2012 and kilometer is 74,586. In which it can be seen that the timing belt(12327) is changed and the total amount charged is Rs.62,998/-. Ext.X1 is the job card of customer Viji Varghese of vehicle bearing No. KL 12 D 1686, the date of repair was 30.11.2011. Ext.X2 is the Job card for the vehicle bearing No. KL 12 D 1686 dated 10.01.2012 wherein it is noted that Timing Belt (1).

16. Opposite party No.1 filed affidavit and he is examined as OPW1 and Ext.B1 to B3 is marked. Opposite parties No.2 to 4 not adduced any oral evidence. Ext.B1 is the Service History of the vehicle bearing No. KL 12 D 1686 dated 11.11.2014. It shows an accidental repair on 22.03.2011 and on 07.05.2010,980005, vehicle off road helpline charges paid-3083135-calicut, N, invoiced and on 27.01.2010 ACR, accidental repairs, N, accident work and on 17.08.2009 ACR, accidental repairs, N, front lh accident work. On 09.01.2009 053000, timing belt renew(including timing), warranty-3000970- Westhill, N, invoiced. On 29.07.2008 ACR, accidental repairs, N, accident work labour rgicl. On 08.05.2008 ACR, accidental repairs, N, rrlhbupber car painting. On 20.02.2008 ACR accident repair, N, rr bupber painting touch up. Ext.B2 is the Tax Invoice of the vehicle No. KL 12 D 1686 dated 24.08.2012. Ext.B3(1) is Tax Invoice of the vehicle KL 12 D 1686 dated 09.11.2012. Ext.B3(2) is the Tax Invoice dated 17.11.2012. Ext.B3(3) is the Tax Invoice dated 01.06.2013.

17. On perusing the complaint, versions, documents and depositions the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

18. Point No.1:- On considering the above evidence we found that any way as per Ext.A1 page No.139 and 140, it is stated that “ Replace of timing belt between 1,00,000-1,00,500 km. But in somany other items it is specified the kilometer and the period which ever is earlier that means the timing belt will get guarantee for 1,00,000 km. Otherwise the opposite parties could have mentioned the kilometer or the time(period) whichever is earlier. The absence of a specific period we found that the warranty will expire only on attaining the 1 lakh kilometer. As per Ext.A3, the timing belt is broken in 74,586 km. So it is within the guarantee period of 1 lakh kilometer and it also shows that due to the break of timing belt within the warranty period complaint is caused to the engine parts also.

19. So not allowing or paying the repair charge for the repair which is caused due to the breakage of timing belt within the guarantee period is a clear deficiency of service and unfair trade practice. Hence the Point No.1 is found accordingly.

20. Point No.2:- Since the Point No.1 is found against the opposite parties, the opposite parties are jointly and severally liable to pay the repair bill and cost and compensation and the complainant is entitled for the same. The Point No.2 is decided accordingly.

In the result, the complaint is partly allowed and the opposite parties No.1 to 4 are directed to pay Rs.62,998/-(Rupees Sixty Two Thousand Nine Hundred and Ninety Eight) to the complainant which is the bill amount and also directed to pay Rs.2,000/- (Rupees Two Thousand) as compensation and Rs.1,000/- (Rupees One Thousand) as cost of the proceedings. The opposite parties No.1 to 4 are jointly and severally liable to pay the above amounts. The opposite parties are directed to comply the order within one month from the date of receipt of this Order, failing which the complainant is entitled for an interest @12% for whole the amount.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 21^st day of May 2015.

Date of Filing:13.08.2013. PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

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PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Viji Varghese. Complainant.

Witness for the Opposite Parties:-

OPW1. Das. Service Manager, Marina Motors, Kozhikkode.

Exhibits for the complainant:

A1. Copy of Registration Certificate.

A2. Owners Manual.

A3. Tax Invoice.

Exhibits for the opposite parties:-

B1(Series). Service History (18 Nos).

B2(Series). Tax Invoices (2 pages).

B3(Series). Tax Invoices(3Nos).

X1. Job card workshop copy(6 pages).

X2. Job Card (2 pages).

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PRESIDENT, CDRF, WAYANAD.

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