Tamil Nadu

North Chennai

CC/413/2018

D.Pitchaimuthu - Complainant(s)

Versus

TAFE Reach Ltd. - Opp.Party(s)

Deepa Hari Govind

21 Apr 2023

ORDER

Complaint presented on :05.09.2012           

    Date of disposal            :21.04.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                              THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

                                                C.C. No.413/2018

 

DATED FRIDAY THE 21^th  DAY OF APRIL 2023

 

D.Pitchaimuthu,

12/6, Vedachalam Nagar First street,

R.R.Flat, No.6, Kodambakkam,

Chennai-600 024.                                                                 

                                                                                                …..Complainant

 ..Vs..

1.Tata Motors Ltd.,(Passenger Car Business Unit)

Rep.by its Managing Director,

No.24, Homi Mody Street,

Fort, Mumbai-400 001.

 

2. The General Manager,

TAFE Reach Ltd.,

43, Greams Road,

Chennai-600 006.                                                                           …..Opposite Parties

 

 

Counsel for Complainant                          : M/s.Deepa Hari Govind

 

Counsel for 1^st opposite party                     : M/s.Shivakumar & Suresh

Counsel for 2^nd opposite party                     : M/s.K.S.Jayaganeshan

 

 

ORDER

 

TMT. KAVITHA KANNAN, M.E.,    : MEMBER-I

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties to Pay a sum of Rs.200573/- towards the cost of the car and to pay a sum of Rs.100000 towards compensation of mental agony and to pay a sum of Rs.50000/- towards deficiency in service and to pay a sum of Rs.5000/- towards costs.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.236/2012.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.413/2018.

1.THE COMPLAINT IN BRIEF:

          The complainant submit that he was impressed with the attractive Advertisement published by TAFE Reach Ltd., for promoting the sales of TATA Nano 4 Wheller. The Pamphlets issued by the second opposite party through first opposite party given a warranty for four years/60,000 Kms. The complainant states that he had paid the cost of the vehicle and other prizes amounting Rs.2,30,196/- by applying a loan and taken delivery of the vehicle on 28.03.2011. As per owners manual the opposite parties restricted the warranty for 18 months or 24,000 Kms. Quite contrary to the advertisement given in the Pamphlets. Thus the opposite parties has indulged Unfair Trade. The Complainant states that he has completed two free services from the second opposite party. The vehicle was due for service before 28.03.2012. On 27.02.2012 while returning from the Office at Valluvarkottam the engine of the vehicle get failed with Yellow indication above the Km reading followed by beep sound get stopped within feet distance. The complainant's call to the workshop not attended properly and he got advice to bring the vehicle to workshop at his own efforts. The complainant was standing on the road for more than a house which is hardly within 1 km radius of the workshop. The worksheet was prepared on 27.02.2012 and the engine failure was attended by the workshop on 28.02.2012 and delivered back to the complainant on 29.02.2012. The Complainant states that when the vehicle was handed over to the second opposite party on 27.02.2012 the vehicle runs 5171 Kms. It is specifically informed that engine failure. However the service request was typed as running repairs. The job card / Tax invoice never revealed the nature of the work done by the second opposite parties. On the other hand it has been stated that it is standard checks. Thus the opposite parties have deliberately withheld the nature of work. It would amount to deficiency in service. The complainant states that on 01.03.2012 the complainant sent E-mail to the opposite parties he brought to the knowledge of the opposite parties that "The hand note left out by opposite parties, technicians inside the vehicle reads engine coolant over temperature condition/ Fan not working is the cause for break down of the vehicle." No reply has been received by the complainant's so far. The complainant states that on 06.03.2012 the complainant issued E-mail notice to the opposite parties claiming the cost of the vehicle. Further stated that the engine of the vehicle failed within one year.  The complainant stated that the vehicle runs only 6000kms, the vehicle got inherent manufacturing defect. The sale of defective Nano car amount to deficiency in service. Hence this complaint.

2. WRITTEN VERSION OF 1^ST OPPOSITE PARTY IN BRIEF:-

The opposite party denies all the allegations and averments made in the complaint except those that are specifically admitted.  The complaint filed by the complainants was false, frivolous and vexatious and is as such liable to be dismissed.  The 1^st opposite party submitted that the vehicle manufactured by this opposite party are also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for despatch to the authorized dealers on a principal to principal basis for sale of the vehicles. The complainant made baseless allegations of manufacturing defect in the car without relying on any expert report from a recognized and notified laboratory. That the complaint filed by the complain does not fall within the definition of a 'consumer dispute' under the CP Act as there is neither any manufacturing defect proved in the car in question nor any deficiency in service. The further admit that the said car was provided with left front door handle replacement on 04-04-2011, on 04-05-2011  the disputed vehicle had an accidental repair with standard check, full body antirust treatment on paid basis and paint touchup free of cost, further on 18-07-2011 at 1674km there was a complaint of car pulling to one side, bonnet not opening where scheduled service and general checks were carried on  while on 19-09-2011 had complaints that the said vehicle was pulling on one side, A/C cooling insufficient while the job done were speed service, checked A/C system and determined faults and other standard checks done, while on 22-11-2011 retro fitment /updation and general checks while on 28-02-2012 at 5171km for engine check light comes on and for scheduled service done with laptop checks free of cost also on 30-03-2012 at 5446km to check for engine lights  on where also standard checks were carried out by 2nd opposite party, DTC code checked and coolant check done free of cost. That the car purchased by the complainant requires mandatory servicing and replacement of specified components viz. air filter, fuel filter etc. at recommended intervals as mentioned in the owner's manual and service book given at the time of sale, for smooth running and optimum performance. The opposite party states that the complainant had failed and neglected to follow the guidelines given in the owner's manual, as recommended for smooth and maximum performance of the car in question viz. correct operating procedures - do's and don'ts for maintenance and performance of the car. This answering opposite party relies on the terms and conditions of warranty of the car in question, owner's manual and service book and craves leave to refer the relevant extracts of the terms and conditions, limitations, owners service book & user manual at the time of hearing. It may be noted herein that for effective maintenance and smooth running of the car, every customer has to carryout the mandatory recommended services at regular intervals at the authorized service centers/workshops of the opposite party. It is submitted that as per the service schedule of the car in question, the complainant was supposed to bring the subject car at the recommended intervals as mentioned in the owner's manual and service book for carrying out the mandatory free services, however the complainant has not produced any records, so as to show that the complainant had regularly serviced the car, as per the recommended service schedule. Further submitted that the maintenance faults and operational faults noticed by the opposite parties during free servicing as well as on paid service when the complainant was  advised to follow the instructions a manual for smooth and performance of the car. It is submitted that given in maximum performance of the car. It is submitted that as per the clause 1 of the warranty applicable for the subject car, the warranty shall be limited for 18 months from the date of sale of the vehicle or 24,000 owner's service book and kms., whichever is earlier from the date of the sale subject to fulfilment of other terms and conditions of warranty, In this case, the opposite party relies on the clause 5 of the terms & conditions of warranty, It is submitted that the warranty offered on every car, manufactured by the answering opposite party, is subject to the terms & conditions of the warranty as contained in the owner's manual and service book. Further car in question met with an accident and brought at the workshop of opposite party no.2 for accidental repairs on 04.05.2011.Further submitted that the complainant has purchased the car on or around 17.03.2011 from the opposite party dealer and the car in question till 27.02.2013 has run without making any major complaint. There is no deficiency in service on the part of this opposite party. Therefore the complaint is liable to be dismissed.

3. WRITTEN VERSION OF 2^nd  OPPOSITE PARTY IN BRIEF:-

The opposite party denies all the allegations and averments made in the complaint except those that are specifically admitted.  The complaint filed by the complainants was false, frivolous and vexatious and is as such liable to be dismissed.  The 2^nd opposite party submitted that the complainant had taken vehicle with this opposite party is admitted to be true. The averment that the opposite party had restricted is not true because the manual is printed uniformly and the changes made in the warranty are extended by the company and the same is extended to the customers and the same has been done. There was a revision in the warranty period from 24,000 Kms or 18 months to 60,000 kms / or four years. Hence the averment that this opposite party has indulged in unfair trade practice is not true. The same is evidenced from the job card dated 27.2.2013. But the vehicle clutch cover assembly was replaced under warranty after 24 months and the same proves that the warranty has been extended to the customer. The vehicle was brought to this opposite party workshop by this opposite party after this opposite party had got a call. The yellow light flickers not because of the engine problem but even if there is any wiring problem the light may flicker and this is only an indicator to alert the driver and does not necessarily be a engine failure. The vehicle was delivered after the defects were rectified and the complainant had given a satisfaction note during delivery. The complainant has not left the vehicle with this opposite party for engine failure. The complainant had come on 30.3.12 and also on finally on 27.2.13.Even at this visit the complainant had not complained about any engine failure. This opposite party submits that the vehicle was purchased on 28.3.11 and the complainant has not complained about any major defects like engine problem at any point of time while he visited this opposite party even during the accident of the vehicle. There is no deficiency in service on the part of the this opposite party. Therefore the complaint is liable to be dismissed.

4. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency in service or unfair trade practice on the part opposite party as alleged in the complaint?

2. Whether the complainant is entitled for the reliefs prayed in the

    complaint.  If, so to what extent?

The complainant hadfiled proof affidavit, written arguments and documents Ex.A1 to A7 are marked on his side. The opposite parties had filed proof affidavit and documents Ex.B1 was marked.

5. POINT NO :1 :-

The undisputed facts of the case is that the complainant being influenced by the 2^nd opposite party’s pamphlet  advertisement purchased a 4 wheeler TATA NANO car from 2^nd  opposite party paying Rs.2,30,196/- and took delivery on 28-03-2011. The owners manual issued to the complainant during delivery of the disputed vehicle contained the statement of restricted warranty of 18 months or 24,000km which was quite contrary to the advertisement contained in the pamphlet as 4 years or 60,000km, hence the complainant alleges the same as Unfair Trade Practice.He also alleges that after 2 free services when the vehicle was due for its next service on 28-03-2012 when the complainant was returning from his office the vehicle engine failed with yellow indication above the Odometer reading along  by a beep sound which stopped later and the complainant states that he had taken his vehicle to the 2nd opposite party under much hardship and left the vehicle for service with complaints of Engine Failure, while the service request was typed as RUNNING STATUS and STANDARD CHECKS and also that the job card /Tax invoice never revealed the nature of the work which amounts to deficiency of service .The complainant states that his email dated 01-03-2012 and 06-03-2012 to the opposite parties in which the complainant has alleged about a hand note left out by 2nd  opposite party’s technician inside the vehicle which read “engine coolant over temperature condition/fan not working is the cause for breakdown of the vehicle”  were left unresponded by the opposite parties. It is alleged by the complainant  that the engine being the heart of the vehicle if failed within a year of riding constituted to only office use and not involved in any long journey or rough drive loses trust and confidence on the said vehicle. It is also alleged that the car ran only for 6000km and the defective Nano car had manufacturing defects while  all the above defects  occurred during the warranty period.

6. The 1st Opposite denied all averments in the complaint except that the said car was purchased from the 2nd opposite party and specifically states that the  relationship between the 1st opposite party and 2nd opposite party were on a Principal to Principal basis where  they were not liable for the day to day activities of their dealer and their customer, hence cannot be transpired between the complainant and answering opposite party and specifically denies the statement of manufacturing Defect pointed on the disputed vehicle contending  that the complainant has not established the fact that the disputed car suffered a manufacturing defect as no proof of Expert opinion has been filed on the said vehicle. The further admit that the said car was provided with left front door handle replacement on 04-04-2011, on 04-05-2011  the disputed vehicle had an accidental repair with standard check, full body antirust treatment on paid basis and paint touchup free of cost, further on 18-07-2011 at 1674km there was a complaint of car pulling to one side, bonnet not opening where scheduled service and general checks were carried on  while on 19-09-2011 had complaints that the said vehicle was pulling on one side, A/C cooling insufficient while the job done were speed service, checked A/C system and determined faults and other standard checks done, while on 22-11-2011 retro fitment /updation and general checks while on 28-02-2012 at 5171km for engine check light comes on and for scheduled service done with laptop checks free of cost also on 30-03-2012 at 5446km to check for engine lights  on where also standard checks were carried out by 2nd opposite party, DTC code checked and coolant check done free of cost. Admitting  all the above service history the 1st opposite party admits that the 2nd opposite party had resolved all issues and further contended that all repairs alleged by the complainant were running repairs and may not be treated as inherent defects .

7. The 2nd opposite party in his version  denies the averment that the disputed car’s warranty was restricted from 60,000km/4 years to 18 months /24,000km as Terms and Conditions were the company's norms and stands beyond the boundary of 2^nd opposite party. It is stated further by the 2nd opposite party that clutch cover assembly was replaced free off cost after 24 months and same proved that the disputed car enjoyed the extended warranty even after 18 months and further contends that the yellow light flickers may not be only due to engine failure but also due to some wiring issues and just an indication to the driver and not an engine failure which were rectified by the 2nd opposite party and also the complainant gave  a satisfactory note for the same. Further the 2nd opposite party contended that the averment in para4 was false as the disputed car did not suffer an engine failure but was a running repair and the same was rectified at free of cost. The 2nd opposite party denies the reception of any emails sent to the opposite parties on account of the service and they had no knowledge of the same. The 2nd opposite party denies that the complaint did not bring the car for any engine failure and had not complained about any major defects even during the accident repair.

8. The 2nd opposite party’s advertisement pamphlet stating the 4 years/60,000km warranty period is marked as Ex.A1,and also that the price list marked as Ex.A2 read the warranty of the NANO car would be 60,000km or 4 years while the  Warranty-Terms and Conditions marked as Ex.A7 had the initial clause which states that the disputed vehicle would enjoy a warranty period of 18 months/24000km and also the  Delivery note marked as Ex.A3 mentioned that the said car was not allowed for an extended warranty and also neither of the parties submitted a proof of the extended warranty as found from the 2nd opposite party's version for the disputed vehicle and also Ex.B1 shows that the services done on   27-02-2013 was a paid service while the brake fluid, air filter tyre, wheel alignment, Engine oil and coolant were changed and charges were paid for them as found in Ex.B1.  Though the 2^nd opposite party in the written version contended that there was revision in the warranty from 24000kms or 18 months to 60000kms or 4 years there is no notice given to the complainant with regard to the alleged revision of warranty period and further merely because the 2^nd opposite party has changed the clutch plate assembly under warranty as found in Ex.B1 on 27.02.2013 but for other items which were replaced on the same date charges were collected from the complainant which shows that the absence of the extended warranty for the period as originally stated in Ex.A1 and A2 which would clearly amount to unfair trade practice on the part of the opposite parties 1 and 2.  Though the 1^st opposite party alleged that it is not responsible for the alleged warranty period mentioned in Ex.A1 and A2 which was given by the dealer namely 2^nd opposite party but on perusal of Ex.A1,A2 and A7 as well as evidence on record it is found that the reduction of warranty period after purchase of the vehicle as found in service manual was done by both the opposite parties and thereby the prospective customers were falsely induced to believe that the vehicle had warranty period as mentioned in Ex.A1 which amounted to unfair trade practice on the part of both the opposite parties.

9. From the job history Ex.B1 it is found that after purchase of the vehicle the vehicle reported for service at 160kms on 04.04.2011 and standard checks were done and thereafter it came for service on 04.05.2011 at 534kms which is first free service and during which an accident was noticed but the same was suppressed by the complainant in the complaint and further again the vehicle reported for service on 18.07.2011 at 1674kms during the bonnet cable replaced and tyre rotation checked and other standard checks were done at free of cost and again the vehicle reported on 19.09.2011 at 2371 kms for 2^nd free service during which standard checks were done and the vehicle reported for next service on 22.11.2011 at 3647 kms, and thereafter on 28.020.2012 at 5171 kms and on 30.03.2012 at 5446 kms and during those times standard checks were done free of cost by the opposite party and it is found from Ex.B1 at no point of time the complainant reported any engine failure and it is further found that whatever complaint raised by the complainant were only running complaints which were rectified satisfactorily by the opposite parties and the complainant failed to prove any manufacturing defect or defect in the engine as alleged by him in the complaint by adducing any expert evidence and on perusal of Ex.B1 it is found that the vehicle was in good running condition even after two years from the date of purchase and has also completed more than 8000 kms in February 2013 which falsify the averment of the complainant that the vehicle had manufacturing defect and hence the complainant is not entitled to seek for replacement of the vehicle or the cost of the vehicle as claimed in the complaint.  The 1^st  opposite party relied upon a decision reported in Dr.K.Kumar Vs. Dr.A.S.Narayan Rao dated 21.10.2009 NCDRC R.P.No. 3140/2007 and Maruti Udyog Ltd. Vs.Susheel Kumar Gabgotra & anr dated 29.03.2006 SC Appeal (Civil) 3734/2000 and also Tata motors Ltd Vs Antonio Paulo Vaz and anr Civil Appeal 574/2021 and contended that when the vehicle has run for more than two years after its delivery by the dealer and during that period a number of eventualities could have occurred and also the use of the car without proper up keep could have resulted in the under carriage being the corrugated and hence the manufacturer cannot be held liable for the same and therefore contended that the complainant is not entitled to ask for cost of vehicle without proving the manufacturing defect or engine fault in the vehicle.  It is further alleged by the 1^st opposite party that the complainant has not followed the instructions given in the manual regarding maintenance of the vehicle and has not brought the vehicle to the service centre periodically as stated in the service manual further it is found that as per the terms and conditions of the warranty if the vehicle met with an accident then the warranty shall not apply to any repairs or replacement as a result of accident and accordingly the complainant is not entitled to allege deficiency in service on the opposite party for charging in respect of replacement of parts as a result of accident.  On perusal of the entire records it is found that the complainant failed to establish and prove any manufacturing defect or engine fault in the disputed vehicle and hence it is found that there is no deficiency in service on the part of opposite parties but on the other hand as stated earlier there is unfair trade practice on the part of the opposite parties 1 and 2 in falsely stating a larger warranty period in Ex.A1 and A2 and thereafter reducing the warranty period as found in Ex.A7 without the knowledge and any notice to the complainant which amounted to unfair trade practice. Point no. 1 answered accordingly.

10. Point no. 2

Based on findings given in Point No.1 there is unfair trade practice on the  part of both opposite parties 1 and 2 and hence the complainant is entitled for the relief of Rs.100000/- towards compensation on account of unfair trade practice committed upon complainant and Rs.5000/- towards cost of the complainant.  Point No.2 is answered accordingly.

          In the result, the complaint is partly allowed.  The opposite parties 1 and 2 are directed to pay a sum of Rs.1,00,000/-(Rupees One Lakh only) towards compensation for unfair trade practice  committed upon complainant and Rs.5,000/- towards cost of complaint to the complainant within two months from the date of receipt of this order.  The above amount shall be paid to the Complainant within two months of the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order to till the date of payment.

Dictated by the Member I to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 21^st day of  April 2023.

 

MEMBER I                MEMBER – II                                 PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1		Advertisement.
Ex.A2		Advertisement.
Ex.A3	28.03.2011	Delivery challan.
Ex.A4	28.02.2012	Tax invoice.
Ex.A5	01.03.2012	Email notice.
Ex.A6	06.03.2012	Email notice.
Ex.A7		Warranty.

 

 

LIST OF DOCUMENTS FILED BY THE 2^nd OPPOSITE PARTY:

Ex.B1

Service record.

 

MEMBER – I                MEMBER – II                                 PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C.C.No.190/2018, Dated:19.04.2023

Order Pronounced,

      In the result, the complaint is partly allowed.  The opposite party is directed to pay a sum of Rs.2,00,000/-(Rupees Two Lakhs only) towards compensation for deficiency in service and Rs.5,000/- towards cost of complaint to the complainant within two months from the date of receipt of this order.  The above amount shall be paid to the Complainant within two months of the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order to till the date of payment.

         The opposite party is also directed to undertake repair and rectify the following works within a period of two months from the date of receipt of copy of this order :

i) Arresting leaks &water seepage occurring in roof ceiling during rains in South West Bed Room (Master bed room), Kitchen and Common Toilet.

ii) Painting of the safety grills in the balcony, entrance gate and ladder fixed in the water tank.

iii) Cracks in North and West side walls in South West Bed Room, North west bed room, Hall, balcony and staircase walls.

iv) Applying wall putty and painting in the complainant's flat.            

v) Plastering over loft top in South West Bed Room.

vi) Complete the plastering and painting work in both Open to Sky areas.

vii) Painting on West side of the building.

viii) Rectify the portion of vitrified tile flooring laid in the hall which was peeled.

ix) Power supply for three electrical points in Hall.

x) Complete the External Plastering in West side of the building.

xi) The pillar supporting entrance gate has to be demolished and a new pillar has to be constructed.

xii) Arrest the leaks occur in base slab of Over Head Water Tank in terrace floor.

xiii) Providing compound wall in the premises to separate the building from adjacent properties & Road.

xiv) Handing over the documents related to the construction and completion of Flat along with EB card.