O   R   D   E   R

          This is a complaint filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.Ps. to replace the vehicle with a new one or refund an amount of Rs,3,08,985/- being the price of said vehicle and to pay a sum of Rs.1,000/- per day from 12-7-2011 till the date of payment as compensation for causing financial hardship and inconvenience to the complainant and to pay an amount of Rs.50,000/- towards damages for the harassment and mental agony besides granting costs on the following averments:

          The complainant purchased a vehicle  Tata ACESHT for Rs.3,08,985/- from O.P.1 for the purpose of eking out his livelihood as a self-employment.  The said vehicle was manufactured by 2^nd OP.  The complainant took financial assistance from TATA Finance and has been paying installments amount to his financier.  The above said vehicle is delivered to complainant on 30-4-2011 with a warranty of one year and on 10-7-2011 the vehicle stopped functioning suddenly upon which the complainant apprised the O.P.1 of the fact of non-functioning of the vehicle.  The O.P.1 asked the complainant to handover the vehicle for repair and accordingly on 12-7-2011 the said vehicle was handed over to O.P.1 at Vizianagaram.  Since O.P.1 did not inform the complainant about the repairs of the vehicle he got issued a registered notice on 20-7-2011 to O.P.1 as to whether the vehicle was repaired or not and after receipt of notice the O.P.1 promised to rectify the defects in the vehicle as early as possible.  The O.P.1 made the complainant to move round his premises and no effort was made by him to remove the defects in the vehicle.  The O.P.1 sold the defective vehicle to the complainant and has acted in most negligent manner in getting the vehicle repaired and there by caused hardship to the complainant.  The defect in vehicle is the result of poor workmanship of the O.P.2, for which the complainant has suffered loss and damage.  Both the O.Ps were under obligation to keep the vehicle in perfect working condition for a period of one year from the date of purchase but of no avail.  On account of deficiency in service and negligence on part of the O.Ps the complainant suffered loss and injury due to deprivation, financial hardship, inconvenience and mental agony.  Hence he filed the complaint for the above said reliefs.

          The respondents filed respective counters traversing the material allegations made in the complaint.  In the counter of 1^st respondent, it is averred that the complainant purchased the vehicle from them knowing the terms and conditions of the warranty and took delivery of the same.  As per condition (2) of the warranty at the time of delivery of the vehicle it was made clear to the complainant that the free services shall be done by an authorized dealer of the TATA Motors but for the reasons best known to the complainant he brought the vehicle for the 2^nd service and as per the records he did not render the vehicle for the said service to any of the authorized dealers.  When the complainant brought the vehicle to the workshop of O.P.1 it was reported that the vehicle got starting problem and on primary investigation it was found that due to poor maintenance of the vehicle the defect arose in the vehicle.  The 1^st O.P got the vehicle checked and attended to the repairs and informed the complainant many a time to come and take the vehicle but of no avail.  It is averred that there is no deficiency in service on the part of O.Ps and as there are no bonafieds in the complaint the same merits no consideration and is liable to be dismissed. 

The 2^nd O.P has averred that the complainant has made baseless allegations of manufacturing defects in the vehicle without relying on any expert report from a recognized laboratory and deficiency in service without any documentary evidence in support of the said allegations.  It is averred since the vehicle is under hypothecation, complainant is not the owner of the vehicle and has no right in the same and he being the beneficiary has no locustandi to file the complaint.  It is averred the vehicle was repaired and the complainant was informed about the same but he did not take possession of the same.  It is averred that there is no deficiency in service on the part of O.Ps and no hardship was caused to him and as the complainant himself is at fault for not taking the vehicle back, he is not entitled to get any reliefs as prayed for.  It is averred that there are no bonafieds in the complaint and as such the complaint is liable to be dismissed.

To substantiate complainants case the evidence affidavit of P.W.1 is filed and he got marked Ex.A.1 to A.5.  Per contra the O.Ps filed the affidavit evidence of R.W.1 and did not get any documents marked on their behalf.  Both the parties have filed their respective brief written arguments and their counsel also submitted oral arguments.

          Perused the material placed on record. Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for ?

          Points:-  It is the specific contention of the complainant that he purchased the vehicle from 1^st O.P which had warranty for 1 year and when it developed defect and did not run properly, he produced the same before 1^st O.P to get the defect rectified that the 1^st O.P did not take any interest in repairing the same and as there was manufacturing defect in the vehicle both the O.Ps were called upon to replace the old vehicle with a new one and as the O.Ps did not pay any heed to his words he filed the complaint for the above said reliefs.  As against the above said contention both the O.Ps have taken a plea that there were no mechanical defects in the vehicle and when the complainant brought the vehicle to the work shop of O.P.1 he simply stated that there is starting problem in the vehicle and after rectifying the defects the complainant was informed to take the vehicle but for the reasons best known he did not take the vehicle for all these days and as there is no deficiency in service on the part of O.Ps the complaint is liable to be dismissed.

          As seen from the contents of complaint on 10-7-2011 the vehicle stopped functioning suddenly upon which the complainant took the vehicle to the 1^st O.P and appraised him of the fact of non-functioning of the vehicle and on the request of O.P the vehicle was kept at the work shop of 1^st O.P to get the defects rectified and as nothing is heard from the O.P the complainant got issued the lawyers notice dt.20-7-2011 and after receipt of said notice the O.P.1 promised to rectify the defects as early as possible and though years have elapsed he did not attend to the repairs but made the complainant to move round the O.P.  Though the complainant has taken such a plea he did not disclose as to the nature of defects in the vehicle.  During pendency of this complaint both the parties were directed to take the vehicle to RTO, Vizianagaram to get it tested by MVI.  After the vehicle was produced before the RTO he got tested the vehicle and submitted the report.  As per contents of report submitted by 1^st AMVI on 10-10-2014 he has tested the vehicle bearing No.AP 30 W 4034 and found no manufacturing defects in the vehicle but found some normal lose      sounds due to long standing of vehicle.  The complainant did not raise any objection with regard to the contents of above said report.  Hence, due weight can be given to believe its contents and can safely be concluded that there were no manufacturing defects in the vehicle.  Once it is found that there are no manufacturing defects in the vehicle the 2^nd O.P who is the manufacturer of the vehicle cannot be blamed and no attribution can be made to contend that there is deficiency in service on his part. The complainant filed a memo on 24-11-2014 in the Forum and as seen from its contents since the vehicle is in running condition he took delivery of the same from the 1^st O.P.  If really there were manufacturing defects in the vehicle the complainant would have refused to take the same from the 1^st O.P.  Hence in the above facts and circumstances we are of the considered opinion that there were no manufacturing defects in the vehicle but as the same stopped functioning he brought the vehicle to 1^st O.P and asked them to get the repairs done.  In the counter filed by the 1^st O.P it is averred that after the defects were rectified the complainant was informed about the same and was asked to come and take the vehicle from them.  As per complainant no intimation was given to him by the 1^st O.P. about the rectification of the defects by the O.P and as such he was constrained to file the complaint.  As seen from pleadings of the respective parties the vehicle was brought to the 1^st O.P. to get the defects rectified on 10-7-2011 and as a 1^st O.P. did not attend to the repairs the complainant got issued a registered notice dt.20-7-2011 to the 1^st O.P and Ex.A.3 is the copy of said notice.  As per contents of notice, due to manufacturing defects the engine stopped functioning and the said fact was intimated to OP and on the advice of O.P the vehicle was sent to the show Room on 12-7-2011 and nothing was heard from the O.P till issuance of above said notice.  Ex.A.4 is the acknowledgement, and as seen from its contents the said notice was served on 1^st O.P on 25-7-2011.   For the reasons best known, the 1^st O.P did not give any reply to the said notice.  Though his counsel has contended that O.P has contacted the complainant over phone and as the complainant did not come to them the vehicle was not delivered to him.  The 1^st O.P did not file any document to show that he contacted the complainant over phone.  The 1^st O.P was not prevented from taking the call list of the relevant period of his telephone to show that the complainant was intimated to come and take the vehicle from their shop.  Ex.A.2 is the job sheet and as seen from its contents there was starting problem in the vehicle and the same was delivered to the 1^st O.P on 12-7-2011 to get the defect in the vehicle rectified.  Since the 1^st O.P did not intimate the complainant about rectification of the defects and as he did not give any reply to Ex.A.3 notice we are of the considered opinion that there is deficiency in service on his part.  The complainant claimed a sum of Rs.1,000/- per day from 12-7-2011 to the date of payment as compensation for the deprivation, financial hardship and inconvenience.  He did not produce any documents nor adduced any cogent evidence to prove that he is earning Rs.1000/- per day on the above said vehicle.  The complainant himself is also at fault as he did not take action by filing complaint in court immediately after issue of Ex.A.3 notice.  When he was convinced that 1^st O.P did not attend to the repairs of the vehicle he ought to have rushed  to the Forum with a complaint seeking the relief to direct the O.Ps to deliver the vehicle and to pay damages.  He has not given any explanation as to why he had to wait till 20-6-2013 for filing a complaint though the 1^st O.P did not give any reply to Ex.A.3 notice which is dated                20-7-2011.  Hence, in the above said facts and circumstances we are of the considered opinion that the complainant was also at fault for not initiating any action against the 1^st O.P after issuance of Ex.A.3 notice.  As the vehicle was kept on use for the considerable length of time and as the 1^st respondent did not give any reply to Ex.A.3 and as he did not produce any cogent evidence to prove that he has contacted the complainant over phone about the repairs made to the vehicle by him, we deem it fit to award a sum of Rs.10,000/- towards damages for causing mental agony and inconvenience to the complainant. 

          In the result, the complaint is partly allowed directing the O.Ps to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation and damages.  The 1^st O.P is further directed to pay a sum of Rs.2,000/- (Rupees two thousand only) towards costs which include advocate fee of Rs.1,000/- (Rupees one thousand only).   The complaint is dismissed against 2^nd O.P but under the circumstances without costs.   The 1^st O.P is directed to comply the order within one month from today.

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 9^th day of December, 2014.

Member                                                           President

CC. 50 of 2013

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1                                                                               

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Invoice issued by O.P. for Rs.3,08,985/-
2. Ex.A.2 Work order sheet by O.P.1 dt.12-7-2011
3. Ex.A.3 Office copy of Registered Lawyer’s Notice dt.20-7-2011
4. Ex.A.4 Acknowledgement
5. Ex.A.5 Warranty Terms and conditions

For O.P:-   NIL                                                            

                                                                                                                                                                                                                            President