BY ADV. RAVISUSHA, MEMBER.
This complaint filed by the complainant Under Section 12 of the Consumer Protection Act. 1986.
The complainant purchased a motor vehicle of make “Sumo Grade Ex” manufactured by the 1st opp.party from the 2nd opp.party who is the authorized dealer of the 1st opp.party and the delivery of which was taken on 4.8.2008 evidenced by the “New Vehicle Release Order” No.737 dated Nil issued by the 3rd opp.party. The total price of the above vehicle was Rs.7,32,114/- in addition to the same the complainant paid road tax, Insurance, temporary permit, one time cess amount totaling Rs.66,767/- and availed a cash discount of Rs.10,000/- from the 2nd opp.party. The complainant registered the said vehicle with Reg.No.KL-2AB/9572. At the time of sale of the said vehicle the 2nd opp.party had promised the complainant that various accessories of the new vehicle would be provided free of cost at the time of delivery. The 2nd opp.party failed to provide fog lamp and steering grip to the complainant which were offered at the time of sale. The 2nd opp.party undertook to provide the same within one week and the same was noted in the first above mentioned release order. The complainant has not received the said accessories though several months have elapsed. The above act of the 2nd opp.party is a clear unfair trade practice on their part resulting in a loss to the complainant. Immediately after taking delivery of the vehicle the complainant detected certain faults in the closing and opening of the front right door. On the very next day after delivery of the vehicle, i.e. on 5.8.08 the complainant was not able to open the said door as it was jammed and the complainant contacted the 2nd opp.party through telephone and was directed to take the vehicle to the workshop of Focus Motors, Kavanad, Kollam who is the authorized service centre of the 1st opp.party in Kollam. The fault of the front door was rectified and the authorized service personal informed the complainant that it was caused due to the fault in the door pad and replaced the door pad clips. The complainant paid charges for the above repair. But the problem still persist and the complainant found it difficult to open and close the door. The complainant took the vehicle to the 2nd opp.party at Thiruvananthapuram three times for rectifying the above defect . Every time he opened the door, the door pad would give away and the complainant has to refix it every time. The above problem created mental agony to the complainant as he was not able to go out in such a costly car without peace of mind. In addition to the above defect there was a problem with the turn indicator switch. The automatic switch off indicator was not working in the vehicle. The complainant had to manually switch of the indicator after every turn. This defect was also brought to the notice of the 2nd opp.party, who promised to rectify the same at the time of first free service. But the defect in turn indicator switch was not rectified in the first free service. On 14.10.2008 when the complainant was returning from Thiruvananthapuram after a business trip and when he reached the KSRTC Junction, Kollam the vehicle was completely broken down emitting heavy smoke. The complainant immediately contacted the 24 hours helpline of the 2nd opp.party and they directed the service person of Focus Motors, Kollam to the place. The service personal arrived and towed the vehicle of the from the middle of the road to their garage. Thereafter the vehicle was taken away by the 2nd opp.party from Focus Motors, Kollam to their garage in Thiruvananthapuram. It was ascertained that the above breakdown of the vehicle was caused due to the manufacturing defects in the Wiring Harness Front BS-III DICOR, Assy Inner Handle with Linls LH- Offer, Gear Shift Mechanism, and Muffler. The above were replaced/serviced by the 2nd opp.party. On 29.10.2008 the vehicle was delivered to the complainants. Even now the complainant is unable to satisfactorily use the vehicle for his purpose as he s not sure of the reliability of the vehicle during long journey’s More over the vehicle is not giving the mileage as promised by the opp.parties, infact the mileage is very low. There is also problems with the gear shift, driver seat and many major problems in the vehicle . Due to the above major complaints especially the shortage of mileage the complainant suffered huge financial loss. The complainant is a consumer as defined in the Consumer Protection Act and there is deficiency of service on the part of the opp.parties 1 to 3 . Hence filed this complaint.
1st opp.party filed version contending that the com plaint is not maintainable either in law or on facts, that the complainant had purchased the Tata Sumo Grande Ex vehicle for operating it for commercial purposes engaging paid drivers. The complainant hence cannot be treated as a consumer as defined under Section 2 [1] [d] of the Consumer Protection Act, 1986. The complainant petition is therefore liable to be dismissed as not maintainable. The complainant had booked for the Tata Grande Ex vehicle and subsequently taken delivery of the vehicle after personally inspecting the same and being satisfied with the vehicle. The complainant in paras 3 to 5 of the complain were found to be of a minor nature and the same had been rectified to the satisfaction of the complainant/his driver. It is further submitted that authorized service centre of this opp.party had attended to such of those complainants found in the vehicle to the satisfaction of the complainant and he had been given the benefits of the warranty and had been charged only for consumables not wear and tear items which he is liable to pay as per the conditions of warranty. This opp.party is further instructed to state that on 17.10.2008 the complainant having taken his vehicle to the workshop of the 2nd opp.party with certain alleged complaints in the vehicle, the service personnel of the 2nd opp.party had looked into the said complaints and such of those complaints found, being minor in nature were attended to and the vehicle was ready to delivery on 19.10.2008 . Though the complainant had been informed of this fact he had taken delivery only on 29.10.2008 after recording satisfaction over the work done. For the delay on the part of the complainant in taking delivery of the vehicle, this opp.party cannot be held liable or responsible. There is no merit or basis in the allegation of the complainant that his vehicle gives only low mileage. It is submitted that this opp.party had at no point of time stated what would be the mileage that the vehicle would give. This is because the mileage of a vehicle could differ from vehicle to vehicle depending upon the driving habits of the driver of the vehicle, the road conditions , etc. There is also no merit or basis in the allegation that there were problems with the gearshift, driver seat and various other major problems.. Hence the allegation that the complainant suffered heavy monetary loss on account of the alleged complaints in the vehicle is denied as misconceived and without merit. The complainant is not entitled either in law or on facts to any amounts as claimed in the complaint petition. Hence the 1st opp.party prays to dismiss the complaint.
The 2nd and 3rd opp.parties filed a joint version contending that the complaint as filed by the complainant is not maintainable before this forum. The complainant is not a consumer as contemplated under the provisions of the Consumer Protection Act, 1986. Further based on the pleadings in the complaint it is clear that there is no consumer dispute also. Further the complaint is bad for non joinder of necessary party because based on the pleadings M/s. Focus Motors, Kollam is also a necessary part to the proceedings. The complainant purchased the vehicle out of his own free will and accord. The steering grip and fog lamp are items not fixed by the manufacturers in the vehicle at the time of delivery. These are extra items a customer will have to purchase separately and fix it into their vehicle to enjoy the same. But in the instant case the opp.parties as an act of goodwill gratuitously offer it to customers. No money is received by the opp.parties for the said act of goodwill given from the side of the opp.parties to the customers like the complainant. It is not that it was only because of this offer, the vehicle was purchased by the complainant. It is submitted here that at the time the vehicle was delivered to the complainant there was shortage of fog lamp and steering cover in the store hence the opp.party had asked the complainant to bring the vehicle to the service centre of the opp.party within two days and it would take about two hours for installation. The complainant agreed for the same and took the vehicle but he did not bring the vehicle as promised hence the same could not be fixed. This opp.party is even now ready to produce the same before the forum to prove their bonafides in this regard. This opp.party is totally unaware of the pleading in this paragraph relating to jamming of the front right door on 5.8.2008 and its repair by M/s. Focus Motors. All this seems to have been done behind the back of this opp.party. On 30..8..2008 the complainant after 1267 Kms running for first free service had come to the service centre of the opp.party complaining of a door lock problem. On verification it was seen that the complainant had tampered with the door pad of the vehicle hence he was not entitled for warranty but still as a measure of goodwill this opp.party rectified the same by replacing door lock latch of all the doors without receiving any consideration and the complainant after recording of full satisfaction took back the vehicle. The automatic switch off indicator problem which was a minor problem was reported to this opp.party when the complainant brought the vehicle for its free service at 10507 km. It was also duly rectified to the satisfaction of the complainant when he took delivery of the vehicle This opp.party is totally unaware of the pleading in the complaint with respect to the breakdown of the vehicle at Kollam and it being taken to Focuz Motors etc, hence denied. On 17.10.2008 the complainant had brought the vehicle to the service centre of the opp.party at Thiruvananthapuram for repair. Accordingly a Job Slip was issued in this regard and repairs were done accordingly . The vehicle was repaired by 19.10.2008 and from then on this opp.party was contacting the complainant to take delivery of the vehicle but he came to take delivery of the same only on 29.10.2008. The vehicle was taken delivery by the complainant after recording due satisfaction. There is no delay or latches on the part of this opp.party and the claim raised in the said para is unsustainable in law and only to be rejected. There is no manufacturing defect as alleged. Hence prays for the dismissal of the complaint.
Points that would arise for consideration are:
1. Whether the complainant is a consumer?
2. Whether there is deficiency in service on the part of the opp.party?
3. Relief and cost.?
For the complainant PW.1 was examined and marked Exts. P1 to P36
For the opp.parties DW.1 was examined and marked X1
POINTS:
Point No.1 Whether the complainant is a consumer.
The opp.party’s first contention is that the complainant purchased the vehicle for business purpose. So the complainant is not a consumer. According to the complainant he has purchased the vehicle for his personal use. From the complaint it is revealed that the complainant used the vehicle for his traveling purpose and not for using his business purpose. Moreover complainant’s contention is that the vehicle was registered as private owner’s vehicle. From the pleadings and from the evidence it is revelaed that the vehicle was used for complainant’s traveling purpose and also the registration is private owner’s registration. Hence the complainant in this case is a consumer. The point found accordingly.
Point 2 and 3
The complainant’s main case is that the vehicle Sumo brand having NO.KL-2AB/9572 purchased from the 2nd opp.party is having manufacturing defect. For finding out manufacturing defect, the basic document is an expert report. From the forum one Mr. Sivasankara Pillai is appointed as expert for examining the disputed vehicle. The expert commissioner has examined the vehicle and produced the report which is marked as Ext. X1`. None of the opp.parties filed any objection to the expert report. Since no objection has been filed to the Ext. X1 expert report, it can be taken as a conclusive proof for finding out that there is any manufacturing defect of the vehicle. The perusal of Ext. X1 expert report and Exts. P1 to P32 it is seen that the 2nd opp.party delivered the new vehicle to the complainant. On 4.8.2008, and n 29.10.2008 the wiring harness front BS-111 DICOR was changed, serviced the Gear shift Mechanism, changed wiring Harness Door Handle, Silencer Muffler, on 22..11.2008 complete repairing work was done to Break system. On 30..4..2009. Alternator service was done, replaced the RPM meter. On 13.7.2009 shake absorber was exchanged. On 8.9.2009 service were done to seat sliding Mechanism front suspension. In the report portion, the expert opinioned that there is manufacturing defect. The Ext. P1 to P32 also reveals that the above said works were done to the vehicle Opp.parties 2 and 3 contented that the vehicle had brought to the service centre of the opp.party at Thiruvananthapuram on 17.10.2008 for repair. The vehicle was repaired on 19.10.2008 and informed the complainant to take delivery of the vehicle but he came to take delivery of the same only on 29.10.2008. For proving the above said contention, the opp.parties 2 and 3 has not produced any evidence. Hence their contention can not be taken into account . Complainant raised a contention that 2nd opp.party failed to
provide fog lamp and steering grip to complainant which were offered at the time sale. For that point also the opp.party 2 could not produce any material evidence to rebutt the complainant’s case. Since Focus motors is only a service centre and not claimed any relief from them, it is not necessary to implead them as a party in this proceedings.
On considering the entire evidence [oral and documentary] we are of the view that the disputed vehicle has manufacturing defect and other Major defects and there is deficiency in service on the part of the opp.parties Hence the complainant is entitled to get compensation.
The next point to be decided is what is the quantum of compensation entitled to get to the complainant. During cross-examination, the complainant deposed that the vehicle has run up to 60,000 k.m. and at present also he is using the vehicle. From the evidence the complainant proved that the vehicle has continuous repair works. On considering the value of the vehicle, mental agony and monetary loss for repairs works, the complainant is entitled to get Rs.2,00,000/- [Rupees two lakhs] as compensation.
In the result the complaint is allowed. The opp.parties are directed to pay Rs, 2,00,000/ [Rupees two lakhs] as compensation and Rs.10,000/- as cost to the proceedings. This order has to be complied with within one month from the date of receipt of this order.
Dated this the 5th day of October, 2012
List of witnesses for the complainant
PW.1. – Anilraj
List of documents for the complainant
P1. – Copy of RC book
P2. – Release order
P3. – Cash bill dated 5.8.08
P4. – Job slip dated 30.8.2008
P5. - Tax invoice
P6. – Job card of Focus Motors
P7. – Job slip dated 17.10.09
P8. - Tax Invoice
P9. – Jobslip dated 11..11..2008
P10. - Tax invoice dated 22..11..2008
P11. – Job slip dated 3.12.2008
P12. – Bill dated 5.12.2008
P13. – Job slip dated 8.12.2008
P14. – Bill ated 13.12.2008
P15. – Job slip dated 22.12.2008
P16. – Bill dated 27.12.2008
P17. – Job slip dated 25.3.2009
P18. – Bill dated 3..4..2009
P19. – Job slip dated 15.4.2009
P20. – Bill dated 24..4..2009
P21. – Job slip dated 13.7.09
P22. – Bill dated 16..7..2009
P23. – Job slip dated 7.9.2009
P24. – Bill dated 8.9.09
P25. – Job slip dated 31.10.2009
P26. – Bill dated 3.11.2009
P27. – Job slip dated 11.12.2009
P28. – Bill dated 12..12..2009
P29. - Job slip dated 21.12.2009
P30. – Bill dated 21.12.2009
P31. – Service History
P32. – Apology letter
P33. – Tax invoice
P34. – Tax invoice
P35. – Tax invoice
P36. – Tax invoice.
List witnesses for the opp.party
DW.1. – Shaji
List of documents for the opp.party: NIL
X1. – Expert report
