IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 13th day of May, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C. No.77/2013 (Filed on 11.06.2013)
Between
1. Baby Mathew, aged 60 years,
W/o Mathew, residing at 4/475,
Idamurikkal House,
Anikkadu P.O., Mallappally,
Pathanamthitita Dist.
- Binny Mathew, S/o Mathew,
residing at 4/475,
Idamurikkal House,
Anikkadu P.O., Mallappally,
Pathanamthitita Dist. … Complainants.
(By Adv. Muhamed Ansari. N.)
And:
- Tata Motors Ltd., One India Bulls-
Centre, Tower 2A & B,
20th Floor, 841, Senapati Bapat-
Marg, Jupiter Mills Compound,
Elphinstone Road (W),
Mumbai 400 013, represented
By its General Manager.
- The Manager, Kulathunkal Motors,
Toll Junction, Chakkai-Kazhakoottam-
Bye Pass Road, Anayara P.O.,
Thiruvananthapuram 695 029.
- The Show Room Manager,
Kulathunkal Motors, Plamtharayil-
Building, Mazhuvangadu, M.C. Road,
Thukalassery, Thiruvalla,
Pathanamthitta District. … Opposite parties.
(By Adv. V. Krishna Menon & Lalu John).
ORDER
Sri. Jacob Stephen (President):
The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainants’ case is that the second complainant is the son of the first complainant and the second opposite party is the authorized dealer and service centre of the first opposite party and third opposite party is the branch manager of the second opposite party at Thiruvalla. The first complainant purchased a Tata Indigo CS car from the third opposite party and the said car is under the usage and care of the second complainant. The complainants booked the car on 26.09.2012 by paying Rs. 2,000/- as booking charge to the third opposite party who promised to deliver the car on 05.10.2012. The said car was purchased by availing an amount of Rs. 4,83,500/- as loan from HDFC bank. The total price of the car was Rs. 6,13,206/- and the car was delivered only on 07.10.2012. At the time of delivering the car, there was no driver side rear view mirror. When the complainants questioned it, the show room manager requested them to take the vehicle and assured that the mirror will be fixed within two days. After the delivery of the vehicle, the complainants found many other defects such as rubber beeding of the doors were fitted loosely, viper blade was damaged, door alignment was not proper, starting trouble and the speedometer reading was at 280 Kms. All these complaints were reported to the third opposite party who offered to make a thorough check up and assured to rectify the complaints immediately.
3. While so on 11.10.2012, when the complainants and their family members were travelling to Kollam, the car showed engine trouble and stopped its working near Puthoor Junction and thereafter they proceeded their journey. But the engine stopped more than 15 times in the said journey. Thereafter the second complainant informed the matter to the third opposite party who advised him to bring the vehicle to Manappuram Automobiles Workshop for repair. Accordingly they brought the vehicle at the workshop on 12.10.2012. They have done test drive and confirmed all the complaints. But they could not find the exact reason for the engine trouble and they failed to cure the problem. They opined that it may be the problem of the software updating of the vehicle. So, on the same day itself, the complainants informed the matter to the first opposite party through E-mail which was acknowledged by the first opposite party with a soothing reply. Thereafter third opposite party took the vehicle to the workshop of the second opposite party at Thiruvananthapuram and charged Rs. 2,000/- for expenses towards transit. The vehicle was under custody of the second opposite party for more than 15 days. After 15 days, the car was returned to the complainants with an assurance that all the troubles were cured and if anything is found further, the vehicle will be replaced. Believing the words of the opposite parties, complainants took back the car. But after one week, the car engine caused to go off again while running. When the complainants open the bonnet, some rust was noticed inside.
4. On the very next day, when the complainants were travelling in the car with their family members along Idukki Road, the car suddenly got off at a hair pin curve near Cheruthoni and lost the control of the vehicle and they narrowly escaped from another accident. Thereafter they continued their journey by using a hired vehicle. The said incident was reported to the third opposite party and as per their direction, the car was brought to their service station. From there they took the car to the second opposite party’s workshop at Thiruvananthapuram and charged Rs. 2,000/- towards expense for transit. On the very next day, second complainant and his brother-in-law Mr. Roy Thomas met the second opposite party and discussed with the works manager about the complaints. He also admitted the problems. After 2 weeks, the car was returned to the complainants at the office of the third opposite party. At that time, it is found that rust was partially removed and engine complaint was temporarily cured. But the same problem repeated after 3 weeks. Thereafter on April 2013, while the second complainant, his brother-in-law and two other friends were travelling in the car along K.K. Road, Kottayam, when they reached at Madukkani curve near Kanjikkuzhi, the back rest of the driver seat crashed suddenly and it fell back. The second complainant who was driving the car fell back and the broken back rest hit at the knees of his brother-in-law. The second complainant applied the brakes and somehow managed a violent stop. In the said incident, the second complainant and his brother-in-law sustained injuries with severe pain and the second complainant is still bed ridden and required further treatment due to the damage caused to his back bone. This incident was also informed to the third opposite party who made an apology and advised the complainants to bring the car again to Manappuram Automobiles. But the complainants are not amenable as they have lost their confidence over the opposite parties. Thereafter the complainants consulted with a private automobile workshop at Kozhencherry and after a detailed examination, they informed that the trouble is purely due to the grave manufacturing defects, which cannot be repaired in normal case. The delivery of a defective car by the opposite parties is a clear deficiency in service and unfair trade practice which caused financial loss, physical injury and mental agony to the complainants. The complainants are paying Rs. 12,000/- per month as the EMI of the loan without enjoying the pleasure of a new car due to its defects. As the car was in the custody of the opposite parties for more than 15 days. Immediately after its delivery, the registration could not be effected within time which resulted in the payment of Rs. 2,500/- as fine to the R.T. Office. So the opposite parties are liable to the complainants for their unfair trade practice and deficiency in service. Hence this complaint for an order directing the opposite parties to replace the defective car with a new one and for realizing Rs. 96,000/-, the EMI’s paid to the bank along with Rs. 1,10,000/- as compensation under various heads.
5. In this case, first opposite party is exparte.
6. Second and third opposite parties entered appearance and filed a common version with the following main contentions: The allegation of the complainants that there was no driver side rear view mirror at the time of delivery of the car is false. The real fact is that the driver side rear view mirror is broken and it was replaced by the opposite parties immediately and the complainant took the car with full satisfaction. It is admitted that the car was brought at Manapparampil Auto Care on 12.10.2012 for complaints of engine trouble occurred on 11.10.2012. As a gesture of goodwill, the third opposite party took the vehicle on 12.10.2012 itself to the second opposite party’s service centre at Thiruvananthapuram and on the next day itself the Customer Relation Manager from Tata comes and upgradation of the software was done and the engine trouble problem is rectified. This was intimated to the complainant for taking back the car. But the complainant took the vehicle after 15 days and the delay in taking back the car is not a fault of the opposite parties. Further none of the opposite parties charged Rs. 2,000/- towards transit charge as alleged by the complainant. The alleged incident at Cheruthoni and the alleged repairs after the incident at Cheruthoni and the collection of Rs. 2,000/- on that occasion etc. are also false and the opposite parties are not even aware of the said incidents. Actually, the engine trouble shows only once and it was rectified and thereafter there was no engine trouble or any such complaints are brought to the notice of the opposite parties. Thereafter the vehicle brought for first free service on 22.10.2012 at 1306 Kms. at Manapparampil Auto Care and at that time the complainants have not raised any such complaints. These facts are clear from the service history of the car. The incident alleged to have occurred on 02.04.2013 at Kanjikuzhi is false and such an incident was not intimated to the opposite parties. Lastly, on 08.03.2013 the vehicle brought for third free service at 10451 Kms. and then also no such complaints are raised by the complainants. There is no manufacturing defect in the vehicle. Opposite parties are unaware all other allegations made by the complainants and such allegations are raised only for the wrongful gain from the opposite parties. Further there is no unfair trade practice or deficiency in service on the part of the opposite parties. The car delivered by the opposite parties is a new car without any defects or complaints. This complaint is false and frivolous and is filed for getting wrongful gain from the opposite parties and the opposite parties are not liable to the complainants as they have not committed any unfair trade practice or deficiency in service. All allegations that goes against this version is false and hence denied. With the above contentions, answering opposite parties prays for the dismissal of the complaint.
7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral depositions of PWs. 1, 2, and CW1 and Exts. A1 to A8 series and Exts. C1 series. After closure of evidence, both sides were heard.
9. The Point: The complainants’ case is that a Tata Indigo CS car manufactured by the first opposite party was purchased by the complainants from the second opposite party through the third opposite party on 07.10.2012. The complainants noticed various manufacturing defects in the said car from the date of purchase itself and thereafter while driving the car. The complaint of the car was properly intimated to the opposite parties and they have made certain repairs. But the manufacturing defect were not rectified properly so far. Because of the said manufacturing defects, complainants put to various difficulties and sustained financial loss and mental agony. Selling a defective car is an unfair trade practice and the non-rectification of the defects is a deficiency in service and hence opposite parties are liable to the complainants and they prays for allowing the complaint.
10. In order to prove the case of the complainants, second complainant filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, second complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A8 series. One witness was also examined for the complainants as PW2. Ex t. A1 is the new vehicle service order dated 05.10.2012 issued by the second opposite party in the name of the first complainant. Ext. A2 is the tax invoice dated 05.10.2012 for Rs. 5,24,351/- issued by the second opposite party in the name of the first complainant. Ext. A3 is the insurance policy certificate in respect of the car in question. Exts. A4 series (A4 to A4(b) ) are the E-mail correspondences made in between the complainants and the opposite parties in between 12.10.2012 and 18.10.2012. Ext. A5 is a copy of the registration certificate of the car in question. Ext. A6 is a medical certificate dated 20.04.2013 issued from Devi Vilasom Champakkara Ayurveda & Homoeopathic Hospital, Karukachal showing the treatment of the second complainant from 10.04.2013 to 20.04.2013 for sprain of cervical and lumbar spine injury. Ext. A7 is the G.D. entry dated 27.07.2013 issued by the Sub Inspector of Police, Keezhvaipur showing the accident of the car in question occurred on 23.07.2013. Ext. A8 is the tax invoice dated 28.12.2013 for Rs. 1,685/- issued by the M.K. Motors, Kodimatha, Kottayam. Ext. A8(a) is the job card workshop copy in respect of Ext. A8. Ext. A8(b) is the job slip in respect of Ext. A8.
11. On the other hand, the contention of opposite parties 2 and 3 is that the vehicle in question had no manufacturing defect as alleged by the complainant. On 12.12.2012, the vehicle was brought to the authorized workshop of the second and third opposite parties for complaints of engine trouble. The said trouble was due to the minor complaints of the software and that complaint was rectified at the service centre of the second opposite party at Thiruvananthapuram on the next day itself. But the complainant had taken back the vehicle after 15 days though the rectification was informed on 13.12.2012 itself. Thereafter no such problems occurred in the vehicle or the complainant had not reported any complaints of the vehicle. The normal periodical services were done at 1304 Kms. and 10451 Kms. At that time also complainant has not reported any complaints of the vehicle. The delay in registration occurred solely due to the fault of the complainant as he had not taken back the vehicle in time. The various alleged incidents shown in the complaint are not known to the opposite parties or no such complaints were reported by the complainant. Thus they argued that there is no deficiency in service or unfair trade practice from their part as alleged by the complainants.
12. In order to prove the contentions of the opposite parties, they have cross examined PWs.1 and 2 and CW1 and there is no oral or documentary evidence from the part of the opposite parties.
13. Apart from the above evidences an Expert Commissioner appointed by this Forum inspected the vehicle in question twice and filed 2 reports and the Commissioner was examined as CW1 and the Commissioner’s Report are marked as Exts. C1 and C1(a). Ext. C1 is the first inspection report filed by the Commissioner without starting or driving the vehicle as the vehicle was in such a condition at the time of his visit. Ext. C1(a) is the second inspection report of the Commissioner prepared after starting and driving the vehicle.
14. On the basis of the contentions and arguments of the parties, we have perused the available materials on record and found that the parties have no dispute with regard to the sale and purchase of the vehicle in question. The only dispute, according to the complainant, is the vehicle in question is having various manufacturing defects whereas opposite parties’ contention is that the allegation of the complainants is baseless as the vehicle in question is a perfect vehicle having no manufacturing defects.
15. In view of the pleadings of the complainants, it is seen that this complaint filed is against the opposite parties alleging manufacturing defect of the complainant’s vehicle manufactured and sold by the opposite parties. Since the main allegation is the manufacturing defect of the complainant’s car, it is the duty of the complainant to establish his case by adducing cogent evidence for supporting his allegations. But in this case, no such evidence has been adduced by the complainant so as to make a finding in favour of the complainant. Complainant is relying Exts. A1 to A8 series documents for establishing his case. But it is pertinent to note that none of the above said exhibits discloses any manufacturing defects to the complainant’s car. Out of the entire exhibits marked in favour of the complainant, Exts. A8 series are the only documents pertaining to the repairs of the vehicle. That too is the repairs made on 28.12.2013 at 28676 Kms. and the repairs done as per Ext. A8 series is only a minor repair and does not connected with any manufacturing defect of the vehicle. What prevented the complainant from producing the documents in respect of the repairs if any done prior to 28.12.2013 including the owners’ manual of the vehicle? None of the allegation are supported with documentary evidences. Oral allegations cannot be taken in evidence without supporting documentary evidences. So it is clear that the complainant has not adduced any evidence to show that there is manufacturing defect to the complainant’s car.
16. Further, the Expert Commissioner’s Report, Exts. C1 series and the deposition of CW1 also goes to show that there is no manufacturing defect to the vehicle in question at the outset. So we are of the view that the complainant’s allegations regarding the manufacturing defect is not sustainable.
17. The other allegations raised against the opposite parties such as the fine paid to the R.T. Office authorities for the belated registration of the vehicle, charges collected by the opposite parties towards transit expenses, treatment expenses, loan dues etc. are also not proved by the complainant with any cogent documentary evidence and independent evidences. Thus in all respects, the complainant failed to prove his case and hence we find that there is no merit in this case and is liable to be dismissed.
18. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 13th day of May, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainants:
PW1 : Binny.G. Mathew.
PW2 : Varghese Thomas.
Exhibits marked on the side of the complainants:
A1 : new vehicle service order dated 05.10.2012 issued by
the second opposite party in the name of the first
complainant.
A2 : Tax invoice dated 05.10.2012 for Rs. 5,24,351/- issued
by the second opposite party in the name of the first
complainant.
A3 : Insurance policy certificate.
A4 to A4(b) : Correspondences in E-mail made in between the
complainants and the opposite parties in between
12.10.2012 and 18.10.2012.
A5 : Copy of the registration certificate of the car bearing
registration No. KL28A-8127.
A6 : Medical & Fitness Certificate dated 20.04.2013 issued
from Devi Vilasom Ayurveda & Homoeopathic Hospital,
Champakkulam.
A7 : G.D. entry dated 27.07.2013 issued by the Sub Inspector
of Police, Keezhvaipur.
A8 : Tax invoice dated 28.12.2013 for Rs. 1,685/- issued by
the M.K. Motors, Kodimatha, Kottayam.
A8(a): Job card-workshop copy in respect of Ext. A8 issued by
M.K. Motors, Kodimatha, Kottayam.
A8(b): Job slip in respect of Ext. A8 issued by M.K. Motors,
Kodimatha, Kottayam.
Witness examined on the side of the opposite parties : Nil.
Exhibits marked on the side of the opposite parties : Nil.
Court Witness:
CW1 : Vinodkumar.
Court Exhibits:
C1 : First inspection report dated 2308.2013 submitted by Sri.
Vinodkumar, Motor Vehicle Inspector, R.T. Office,
Pathanamthitta.
C1(a): Second inspection report dated 12.11.2013 submitted by
Sri. Vinodkumar, Motor Vehicle Inspector, R.T. Office,
Pathanamthitta.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Baby Mathew, residing at 4/475, Idamurikkal House,
Anikkadu P.O., Mallappally, Pathanamthitita Dist.
(2) Binny Mathew, residing at 4/475, Idamurikkal House,
Anikkadu P.O., Mallappally, Pathanamthitita Dist.
(3) General Manager, Tata Motors Ltd., One India Bulls
Centre, Tower 2A & B, 20th Floor, 841, Senapati Bapat
Marg, Jupiter Mills Compound, Elphinstone Road (W),
Mumbai 400 013.
(4) The Manager, Kulathunkal Motors, Toll Junction, Chakkai
Kazhakoottam, Bye Pass Road, Anayara P.O.,
Thiruvananthapuram 695 029.
(5) The Show Room Manager, Kulathunkal Motors, Plamtharayil
Building, Mazhuvangadu, M.C. Road, Thukalassery, Thiruvalla,
Pathanamthitta District.
(6) The Stock file.
