Date of Filing 21.02.2023

                                                                                                       Date of Disposal: 19.01.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

CC.No.25/2023

THIS FRIDAY, THE 19^th DAY OF JANUARY 2024

Mr.R.Yogeshwaran,

S/o.Ramadoss Rathinam,

No.1/134(5) Main Road,

Surapattu, Puzhal, Chennai 600 066.                                                    ......Complainant.

                                                                                  //Vs//

1.SBM Motors,

   No.167, Red-Hills Bye Pass High Road,

   Red-Hills, Chennai 600 052.

2.Sri kamakshi Motors,

   Multi Brand Two Wheeler Show Room,

   No.4, Surapet Main Road,

   Vinayagapuram,

   Kolathur, Chennai 600 099.

3.TVS Motor Company Limited,

   ‘Chaitanya’,

   No.12, Kadhar Nawaz Khan Road,

   Nungambakkam, Chennai 600 006.                                              …..Opposite parties.

Counsel for the complainant                                     : M/s.C.N.Raman, Advocate.

Counsel for the 1^st opposite party                            : Ms.S.Thamizharasi, Advocate.

Counsel for the 2^nd opposite party                           : Exparte.

Counsel for the 3^rd opposite party                           :  M/s.M.V.Seshachari, Advocate.

This complaint coming before us on various dates and finally on 29.12.2023 in the presence of M/s.C.N.Raman, counsel for the complainant and Ms.S.Thamizharasi, counsel for the 1^st opposite party and M/s.M.V.Seshachari, counsel for the 3^rd opposite party and 2^nd opposite party was set exparte for non appearance and upon perusing the documents and evidences on both sides this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in selling defective vehicle along with prayer to direct the opposite parties to replace Motorbike by a new one of the same brand or to return the cost of Motorbike Rs.1,20,824/-, to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.10,000/- towards litigation expenses.

Summary of facts culminating into complaint:-

2. It is the case of the complainant that he had purchased one Brand New Motorbike NTORQ DISC 125 model bearing Registration No.TN-18 BK 4417 from the 2^nd opposite party on 06.12.2022 for a sale price of Rs.1,20,824/-.  The 1^st opposite party is the Authorized Service Centre for the said vehicle. The complainant brought the vehicle for 1^st service on 26.12.2022 to the service centre of the 1^st opposite party.  They appeared to have carried out service works and collected cost for Engine Oil and other allied works to the tune of Rs.496/- as applicable and required the complainant to bring the vehicle on 06.04.2023 for 2^nd service.  The complainant took delivery of the vehicle and proceeded towards Chengalpattu to attend Law College on 27.12.2022.  On the way, the vehicle started giving trouble and a jarring sound emanated and finally the vehicle stopped completely and also it could not be started toward return journey.  By towing the vehicle with great difficulty brought the vehicle to the service centre of the 1^st opposite party.  There it was found to the dismay of the complainant that the vehicle was without Engine Oil.  Though the 1^st opposite party had collected for cost of engine oil and assured that the vehicle was in perfect condition, they have miserably failed to carry out the job envisaged.  As a result of their gross failure and negligent in service, the complainant had to suffer extensively.  The 1^st opposite party blighted all his hopes by inefficient and careless service.  The complainant had reported the matter to the manufacturer TVS Company also.  But there was no response.  As such all the opposite parties are responsible for deficiency in service. Thus the complainant had caused a legal notice on 10.01.2023 calling upon them to replace the vehicle by a brand new vehicle or to return the purchase amount of Rs.1,20,824/- along with compensation of Rs.1,00,000/-.  Though the opposite parties have received the notices no positive compliance from them and hence aggrieved by the act of the opposite parties the present complaint was filed before this commission to direct the opposite parties to replace Motorbike by a new one of the same brand or to return the cost of Motorbike Rs.1,20,824/-, to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.10,000/- towards litigation expenses.

The crux of the defence put forth by the 1^st opposite party:-

3. The 1^st opposite party filed version disputing the complaint allegations contending inter alia that the complainant purchased new motor bike NTORQ DISC 125 model bearing Reg.No.TN 18 BK4417 from the 2^nd opposite party on 06.12.2022 for a sale price of Rs.1,20,824/-.  The 1^st opposite party is the Authorized Service Centre for the said vehicle. After purchase the complainant had rode the vehicle for 20 days and brought the vehicle for 1^st service on 28.12.2022.  As per the stipulations, the 1^st opposite party carried out the service and changed the Bore Pristion and the complainant took the delivery of the vehicle on 03.01.2023 without any whisper. Further for engine oil and lubrications-consumables the complainant charged Rs.496/- as per company terms and conditions.  Complainant argued with the 1^st opposite party that he will not pay the lubrications charges.  Hence, in order to avoid further argument, they refunded Rs.106/- to the complainant and duly got the voucher. The 1^st opposite party received the complainant’s vehicle on 28.12.2022 for 1^st service and technicians who are well equipped and qualified examined the vehicle and found that vehicle’s Bore piston was in locked condition.  The vehicle was within warranty period the technicians replaced the defective part i.e., cylinder kit part under warranty basis. The complainant was not charged any amount for replacing the part.  The vehicle was delivered to the complainant on 03.01.2023 and the complainant received the vehicle in a satisfactory condition by acknowledging the same.  Hence, spending of Rs.15,000/- for a span of 4 days is totally false and the vehicle was given to the 1^st opposite party for a regular 1^st service.  Hence, spending Rs.15,000/- unexpectedly does not arise and it is totally false.  The complainant has approached this Commission with mala fide intention and has not come with the clear history of defect of the vehicle which necessities that it has to be replaced with a new vehicle.  The vehicle was on road from 06.12.2022 to 27.12.2022.  The vehicle was given for 1^st service on 28.12.2022 and delivery was taken up in good condition on 03.01.2023.  Again the complainant took the vehicle back on 05.01.2023 to the 1^st opposite party without any complaint and simply requested to replace with a new vehicle. The complainant is not taking back the vehicle from the 1^st opposite party from 06.01.2023 wantonly despite the message and phone calls given by the 1^st opposite party to take back the vehicle in question.  Immediately on 10.01.2023 within a week, the complainant sent a legal notice for replacing the vehicle with other prayer.  Immediately after receipt of legal notice the 1^st opposite party called the complainant but the complainant vigorously threatened the 1^st opposite party to give huge compensation along with replacement of new vehicle.  On 26.12.2022 when the vehicle was given to the 1^st opposite party, the kms shown in the vehicle is 762 in 1^st service from 06.12.2022 to 26.12.2022.  The complainant had driven 762 kms.  On average per day 30 kms had been driven by the complainant.  He again brought the vehicle on 28.12.2022.  The kms shows in the vehicle was 944 kms . In one day he had driven 182kms.  Again the vehicle was delivered to him on 03.01.2023.  The 1^st opposite party warranty is very clear that any defective portion alone will be replaced and not an entire vehicle, hence question of deficiency in service or supply of goods does not arise. Thus the 1^st opposite party sought for the dismissal of the complaint.

The crux of the defence put forth by the 2^nd opposite party:-

4. The 3^rd opposite party filed version disputing the complaint allegations contending inter alia that the consumer complaint filed by the complainant is not maintainable either in law or on facts and the same is liable to be dismissed in limine. That the complainant had purchased the vehicle but it was denied that the vehicle stopped working completely on 27.12.2022.  It was found that engine oil was not there and that is the reason that vehicle had stopped working is also not true and correct.  It is also denied that the complainant is spending Rs.15,000/- per month for the purpose of going to college by hiring vehicles. The complainant’s vehicle was received on 27.12.2022 and it was examined by technicians who found that vehicle piston was in a locked condition.  As the vehicle was within warranty period, the technician replaced the defective part –cylinder kit part under warranty basis.  The complainant was not charged any amount for replacing the defective part.  The vehicle was also delivered to the complainant on 03.01.2023.  The complainant had received the vehicle in satisfactory condition by acknowledging the same. The vehicle was delivered to the complainant in good condition after replacing the defective part under warranty.  Therefore, question of replacement of vehicle does not arise. Thus they sought for the dismissal of the complaint.

5. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A4 were submitted. On the side of 1^st opposite party proof affidavit was filed and documents marked as Ex.B1 & Ex.B2 were submitted. On the side of 3^rd opposite party proof affidavit was filed and documents marked as Ex.B2 to Ex.B5 were submitted.  Though notice was served to the 2^nd opposite party they did not appear before this commission to file any written version and hence the 2^nd opposite party was called absent and set exparte on 06.06.2023 for non appearance and non filing of written version within the mandatory period as per statute.

Points for consideration:-

1)    Whether there is any deficiency in service as alleged by the complainant against the opposite parties has been successfully proved by the complainant with admissible evidence?

2) If so, to what reliefs the complainant is entitled?

Point No.1:-

6. It is the case of the complainant that he had purchased TVS NTORQ DISC 125 model motorbike from 2^nd opposite party on 06.12.2022 for a sum of Rs.1,20,824/-.  On 26.12.2022 he had brought the vehicle for first free service to the 1^st opposite party and the 1^st opposite party had carried out the service and collected Rs.496/- towards Engine Oil and other allied works.  On 27.12.2022 when he was on the way to his College, the vehicle stopped completely.  By towing the vehicle, he brought the same to the service centre of 1^st opposite party.  But to his shock, it was found that the vehicle was without Engine Oil.  The 1^st opposite party collected Rs.496/- from the complainant but failed to carry out the jobs envisaged.  The complainant issued legal notice dated 10.01.2023 to all the opposite parties demanding them to replace the defective vehicle to new one or return the purchase amount of Rs.1,20,824/- in addition to the compensation.  Hence the complaint.

7. To prove the claim, the complainant deposed proof affidavit with 4 documents which were marked as Ex.A1 to Ex.A4.  Ex.A1 is the vehicle purchase invoice, Ex.A2 is the vehicle free service labour invoice, Ex.A3 is the legal notice sent by the complainant and Ex.A4 is the acknowledgement card for proof of delivery.

8. Per contra, the 1^st opposite party contended inter alia that the complainant brought the vehicle on 28.12.2022 to the 1^st opposite party and the 1^st opposite party changed the Bore piston and complainant took the delivery of the vehicle on 03.01.2023 without any demand.  The complainant had driven 1160km on the whole in good condition.  Subsequently the complainant brought the vehicle on 05.01.2023 and thereafter he has not taken the vehicle.  There is no such deficiency in service on the part of opposite parties.

9. The 3^rd opposite party contended inter alia that the vehicle stopped working completely on 27.12.2022 and the same has been examined and found that vehicle piston was in a locked condition.  Therefore 3^rd opposite party replaced the defective parts on warranty basis.  The complainant had taken delivery of the vehicle on 03.01.2023 from 1^st opposite party without any objection.  There is no such deficiency in service and unfair trade practice as alleged by the complainant.

10. To refute the claim of the complainant the 1^st and 3^rd opposite party deposed proof affidavit respectively with five documents which were marked as Ex.B1 to Ex.B5.  Ex.B1 is the authorization letter, Ex.B2 is the copy of extract of the resolution, Ex.B3 is the warranty Book, ExB4 is the annual maintenance service book and Ex.B5 is the job card.

11. We have perused the documents filed by both the parties and heard the arguments of both sides.  Ex.A1 is the vehicle purchase invoice, Ex.A2 is the vehicle free service labour bill for a sum of Rs.496/-, Ex.A3 is the legal notice and Ex.A4 is the acknowledgement cards.

12. On perusal of Ex.A2 it revealed that the vehicle has been serviced on 26.12.2022 and the 1^st opposite party charged Rs.496/- towards oil and labour charges.  The next day i.e., 27.12.2022 when the vehicle was driven by the complainant, it started to give trouble and a jamming sound.  The vehicle stopped completely.  He towed the vehicle to the 1^st opposite party service centre.

13.  It is admitted by 1^st and 3^rd opposite party in their version that the vehicle piston was in locked condition and therefore they changed the piston.  The opposite parties had not informed about the replacement of parts in the vehicle to the complainant.

14. It is the duty of the opposite parties to check the vehicle promptly during the service.  The vehicle was serviced by the opposite parties on 26.12.2022.  On the next day, the vehicle developed certain problems.  Moreover the opposite parties had not given the reasons for developing such defects in the vehicle.  The act of the opposite parties created doubt about the vehicle service carried out by the opposite parties. The opposite parties had not given any reply to the legal notice issued by the complainant.

            15. Ex.C1 is the Surveyor’s Report which states that due to lack of engine oil caused the vehicle’s engine to seize.  He noticed that there is a power loss/pick up in the engine during test drive when compared to brand new vehicle engine performance.  The 1^st and 3^rd opposite party filed their respective objections to the Surveyor’s Report.

16. Moreover the reasons attributed by the opposite parties are not acceptable one.  The opposite parties had not explained the reasons in delay that why the brand new vehicle stopped completely while driving that too on the next day of service.  The opposite parties had not filed any documents to show that the said piston was in locked condition. The complainant who had spent huge amount in purchasing the vehicle definitely suffered a lot of pain and hardship due to stoppage of vehicle in the midway. However the complainant had not substantiated his allegations with documentary evidence that the vehicle is having inherent manufacturing defects.

17. The opposite parties had not chosen to file any expert opinion to substantiate the allegations.  The improper service by the 1^st opposite party caused the defects in the vehicle.  Hence we are of the considered opinion that the opposite parties committed deficiency in service to the complainant. This point is answered accordingly.

Point No.2:-

18. Since we have come to the conclusion that opposite parties committed deficiency in service, the complainant has to be compensated suitably.  We are inclined to award Rs.25,000/- towards compensation for the deficiency in service and pain and sufferings of the complainant and Rs.5,000/- towards litigation expenses. There is no manufacturing defects in the said vehicle and hence the prayer of the complainant to replace the vehicle or to refund the cost of the vehicle could not be granted. The complainant is at liberty to take back the vehicle from the service centre of 1^st opposite party.

In the result, the complaint is partly allowed against the opposite parties 1 to 3 jointly and severally directing them

a) To pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for deficiency in service, pain and sufferings of the complainant;

b) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this 19^th day of January 2024.

      -Sd-                                                                                                                        -Sd- 

 MEMBER-I                                                                                                         PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 3^rd  opposite party-

List of documents filed by the 1^st opposite party:-

Court document:-

     -Sd-                                                                                                                        -Sd-

MEMBER-I                                                                                                          PRESIDENT