Date of Filing : 31.12.2010

  Date of Order : 25.02.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

Dated 25^th day of FEBRUARY 2012

PRESENT

Sri. T. RAJASHEKHARAIAH        ……..                    PRESIDENT

Sri. T.NAGARAJA                           ……..                   MEMBER

Smt. K.G.SHANTALA                      ……..                    MEMBER

Consumer Complaint No. 237 / 2010

Sri. Narasimhappa,

President of Shilpa Vidya Mandira,

New Colony, Venkatagirikote,

Chikkaballapura District.

(By Sri. C.R. Krishnamurthy, Adv.)                        ……. Complainant

V/s.

1. Sudeendra.R.

    Senior Executive Sales,

    Prerana Motors Pvt. Ltd.,

    No. 465/5, M.G. Road,

    Sidlaghatta Road, Chinthamani Town,

    Chikkaballapur District.

2. The Manager,

    Prerana Motors Ltd. (P) Ltd.,

    Commercial Vehicle Division,

    A.No. ISO-2008, Center Work Shop,

    28/D/29, II Phase, Peenya Indl. Area,

    Bangalore – 560 058.

3. The Manager,

    Authorized Dealer for entire range of

    Tata Vehicles Sales Service & Spares,

    Veeni Court No. 132/15, Lalbagh Road,

    Bangalore – 560 027.

4. The Regional Manager,

    Customer Care, Tata Motors Ltd.,

    14^th Floor, Canaberra Towers, UB City,

    24, Vittal Mallya Road,

    Bangalore – 560 001.

5. Sriram Finance Transport Finance,

    No. 174/1, 1^st Floor, Gokul Complex, M.B. Road,

    Kolar.

6. The Managing Director,

    Tata Motors Ltd., 26^th Floor, Center No. 1,

    World Trade Center, Cuffee Parade,

    Mumbai – 400 005.

    Maharashtra State.

    (By Sri. S.R., Adv. for Ops 1 & 2)

    (By Sri. Anantkumar S. Habib, Adv. for OP5)

    (By Sri. B. Kumar, Adv. for Ops 4 & 6)             …… Opposite Parties

ORDER

By Smt. K.G. SHANTALA, MEMBER

This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986 seeking direction against the Ops to deliver new TATA 407 vehicle to the Complainant and pay the expenses incurred by the Complainant for a sum of Rs.4.00 Lakhs along with interest @ 2% P.M. from the date of complaint till its realization with damages and service charges incurred by the Complainant. 

2.       Brief facts of the case are that the Complainant is a Head Master of Shilpa Vidya Mandir.  Complainant contends that he booked TATA 407 from OP1 through Proforma Invoice issued by OP1 dtd. 03.05.2010 the total value of which is Rs.8,72,800/-.  The Complainant deposited Rs.2,00,000/- with OP2 on 19.05.2010 through DD.  For the remaining amount, Complainant obtained finance from OP5.   Ops 1 & 5 colluded and delivered 2^nd hand vehicle.  While delivering the vehicle, OP1 has changed the Chassis and Engine of TATA 410 to this delivered vehicle TATA 407. The said TATA 410 vide Chassis No. MAT-445071108B08429, Engine No. 497SPTC40DZY is a 2^nd hand vehicle and is repainted, the vehicle got punctured on the road on the date of delivery itself which clearly shows that it is old one.  OP5 made insurance in respect of TATA 407 vehicle.  On 03.06.2010, the RTO issued Temporary Registration.  On the same day insurance policy was obtained.  The Ops 1 & 5 did not take the Complainant to RTO office for registration and registered the vehicle bearing No. KA-40/5661 and while delivering the vehicle Ops 1 & 5 have not delivered its accessories to the Complainant.  Immediately after coming to know the said fact, the Complainant complained to the Ops 1 to 3 who never replied nor made any alternative arrangements.  The Complainant left the vehicle with OP2 for repairs who issued letter in respect of required repairs dated 11.10.2010 that “steering wobbling at above 50 kms. speed, break application vehicle pull to left, clutch hard, wiper not working, hand brake not working”  The Complainant requested the Ops 1 to 5 to take back the vehicle and deliver new vehicle, but the Ops 1 to 5 have abused in filthy language.  The Complainant lodged a Complaint before the Police, but the Police have not taken action.  The Complainant staged a protest before the OP1 shop, but OP1 has not responded.  The Complainant has been put to inconvenience, hardship, loss of students and financial loss and loss of reputation / goodwill to the institution.  As such, the Complainant was compelled to file the Complaint seeking justice. 

3.       On service of notices, Ops 1, 2, 4, 5 & 6 appeared through Counsels and OP3 remained exparte. OP1 filed version denying the allegations of the Complainant and contended that the Complainant had consented to take delivery of TATA 410 Model as there was no stock of TATA 407.  Ops 4 & 6 contended that Complainant is not a consumer as defined under section 2(1)(d) of the C.P. Act and that the Complaint did not fall within the definition of consumer dispute and further contended that the vehicle being a new vehicle required mandatory servicing and that the break-down of the vehicle on 14.09.2010 and 04.10.2010 was due to fuel starvation, that the warranty does not cover normal wear & tear of the vehicle or the parts or any damage due to negligent or improper operation or storage.  The Complainant had taken delivery of the vehicle after being satisfied with the condition of the vehicle.  The Complainant has not produced any expert opinion / documentary proof to show that vehicle was 2^nd hand.  The Complainant had taken the vehicle at the cost of LP 407 only and received the discount of Rs.38,000/-.  The Complainant himself had made the final decision to purchase TATA 410 and as such there was no question of Ops handing over 2^nd hand vehicle to the Complainant.  The OP dealer had paid Rs.6,000/- i.e., Rs.1,000/- per day for 6 days to the Complainant as compensation for revenue loss when the vehicle was kept in the workshop for starvation of fuel.  Hence, it is prayed to dismiss the Complaint.

4.       The parties have produced the following documents.

5.       From the complaint averments, affidavits, documents produced by the parties, the points that arise for consideration are as under:

(1)     Whether Complainant proves deficiency of service on the part of Ops?

(2)              If so, to what relief/s the Complainant is entitled to ?

(3)              What Order ?

6.       Our findings on the above points are as under:

          (1)     Point No. 1 - Affirmative

          (2)     Point No. 2 – As per final order

REASONS

7.       Point Nos. 1 & 2 - As evident from Proforma Invoice, the vehicle booked was TATA School Bus with seating capacity of 24+1.  The Receipt issued by OP2 dtd. 19.05.2010 for Rs.2,00,00/- shows that payment was made towards School Bus Model LP 407.  Tax Invoice, Delivery Note and Sale Certificate show that the vehicle delivered was TATA 410.  In the loan-cum-hypothecation deed, Insurance Policy, Temporary RC extract, the vehicle Model is mentioned as TATA 407 New.  If the vehicle delivered is really a new vehicle, it would be accompanied by warranty from the date of delivery of the vehicle.  Several times the vehicle was subjected to repairs.  The fact that cost of TATA 407 vehicle was charged for Model TATA 410 shows that the Ops were eager to dispose off that vehicle to some naive purchaser.  The Complainant expressed his dissatisfaction to the Ops, but to no avail.  In the event of sale of new vehicle, all the documents pertaining to the vehicle are to be handed over at the time of delivery of the vehicle.  When the concerned Ops were giving delivery of the vehicle to the Complainant, there was a duty cast upon the Ops to ensure that the vehicle of the Complainant’s (customer’s) choice was delivered and with all necessary documents in tact.  Since some documents such as Sale Certificate, Tax Invoice, Delivery Note pertain to Model TATA 410 and the other set of vital documents such as Loan-cum-Hypothecation Deed, Insurance Policy and RC pertain to TATA 407 Model (in respect of one and the same vehicle), they ought not to have permitted the release of the vehicle from their Show Room.  If the vehicle delivered was a new vehicle and when the Complainant expressed before the Ops his grievance that the vehicle delivered was second hand vehicle and it was repainted model.  Since any new vehicle is accompanied by warranty, the Ops could have taken steps to facilitate the replacement of the vehicle with a new defect-free vehicle.  The conduct of the Ops casts doubt on their bonafide.  By not observing the mandatory rules while giving delivery of vehicle, the Ops have shown deficiency of service.  By delivering a vehicle other than agreed one, the Ops have adopted unfair trade practice. When the Complainant has booked the vehicle of Model TATA 407, the same vehicle should have been delivered, but OP has delivered the vehicle with Model TATA 410.  The contention of the OP is that as the vehicle of TATA 407 was not available Complainant has agreed to take delivery of TATA 410 and because of it that vehicle was delivered.  In our opinion, there is no material to substantiate this contention of the OP.  If  the Complainant has actually agreed for purchasing the vehicle of Model TATA 410, OP ought to have taken necessary documents from the Complainant stating that Complainant has agreed for change of the Model.  In the absence of any such documentary material, the oral contention of the OP on that point is not acceptable.  It is also pertinent to note that OP has delivered the vehicle of the Model TATA 410 for the price of TATA 407 Model.  OP himself has stated that cost of TATA 410 Model is Rs.38,000/- more than that of TATA 407 Model, but he has delivered TATA 410 at the cost of TATA 407 Model.  In our opinion, if the parties had agreed for selling TATA 410 Model, the OP would not have given the vehicle at a lesser price, than what could not have been charged for that Model.  Hence, we are of the opinion that in the absence of documentary evidence to substantiate the contention of the OP, that the Complainant had agreed to purchase the vehicle of different Model, such contention cannot be accepted.  Hence, we proceed to pass the following:

ORDER

          Complaint is allowed. 

          Ops 1 to 3 are directed to take back the vehicle from the Complainant and deliver new vehicle of his choice i.e., LP 407 Model within 30 days from the date of this order.

          If for any reasons Ops are unable to deliver the new vehicle of LP 407 Model to the Complainant, the OP shall pay the cost of that vehicle to the Complainant i.e., Rs.8,72,800/- within 30 days from the date of this Order.  If the Ops fail to comply the order within 30 days, Complainant will be entitled for interest @ 6% P.A. on the said sum from the date of default until compliance of the Order.  The Complainant shall execute the necessary documents for transfer of the vehicle from the Complainant to the OP1 to 3, while returning the vehicle to the Ops.

Parties to bear their own costs.

          Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 25^th day of February 2012.

T. NAGARAJA                K.G.SHANTALA           T.RAJASHEKHARAIAH

    Member                               Member                           President

SSS