DOF.03.08.2009

DOO.30.05.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

                Present: Sri.K.Gopalan:                  President

 Smt.K.P.Preethakumari:    Member

Dated this, the 30^th  day of May  2012

CC.No.248/2009

Reena Bessy

Cholamattam House,

Chettiyamparmaba.P.O.,

Kelakam                                                        Complainant

 (Rep. by Adv.C.V.Narayanan)

1. Tata Motors,

    Marketing & Customer Support

    Passenger Car Busienss Unit

    8^th floor, Cenmtre Cuffe Parod,

    Mumbai

    Rep.by Adv.M/s.Menon & Menon)

2.Koyenco Auto Private Limited

   Koyanco House,

   West Hill,

   Calicut 673 005.                                           Opposite parties

   (Rep. by Adv.P.G.Anup Narayanan)

3. K.V.R Dream Vehicles Pvt.Ltd.

    P.O.Kizhunna,  Thottada

    Kannur 670 007

    (Rep. by Adv.T.P.Sabu)

O R D E R

Smt.K.P.Preethakumari, Member

          This is a complaint fled under section 12 of consumer protection act for an order directing the opposite parties to deliver a new vehicle without any manufacturing defect or to refund the value of the vehicle  `8,01,063  along with `5,00,000 as compensation.

          The case of the complainant is that she had purchased vehicle NO.KL.58/937 of Tata Safari LX4.2 Dicor from 2^nd opposite party at their branch office at Pallikkunnu. But the vehicle delivered to her have manufacturing defects which are evident from the service history given by 2^nd opposite party to the complainant. So the complainant make several complaints before 2^nd opposite party regarding the defects, they assured that they will either cure the defects or the vehicle would be replaced. But even though the 2^nd opposite party repeated their promise, they have done nothing to fulfill their promise. Subsequently 2nd opposite party was replaced by 3^rd opposite party as the authorized agent and the complainant approached 3^rd opposite party. But they also repeated the same promise finally the complainant compelled to return back the vehicle to 3^rd opposite party requesting to replace, since the opposite parties are unable to rectify the defect. The complainant was compelled to send lawyer notice stating either to settle the issue or to deliver a new vehicle without any manufacturing defect. But they denied the demand. The vehicle was purchased by the complainant from 2^nd opposite party on 16.5.07 for a total sum of `801063 and the opposite parties attitude created much mental agony to the complainant and affected the business and other works of the complainant. Hence the complaint.

          In pursuance to the notice issued by the Forum opposite parties appeared and filed their version

1^st Opposite party filed version contending that the complainant is not a consumer and the complainant has not approached the Forum with clean hands. The complainant has made mis-conceived and baseless allegations of manufacturing defect and deficiency in service without any documentary evidence. The complaint has been filed after the expiry of two years from the date of purchase of the vehicle and hence it is barred by limitation under section 24A of the Act. The complaint is filed after the expiry of the warranty period hence the complaint is liable to be dismissed.

The allegation of manufacturing defects of the vehicle is vague allegation. The jobs carried out  on the vehicle in question  are minor running repairs and the complainant used to take the vehicle for servicing repairs only and did not carryout  the scheduled servicing as per the recommended intervals. The opposite party has been prompt and swift to attend to the alleged problems reported by the complainant under the warranty. In the case of Maruthi Udyog Ltd. Vs.Susheel Kumar Gabgotra and another JT2006(4) SC113, the Hon’ble Supreme court held that the manufacturer cannot be ordered to  replace the car or refund its price merely because some  defect appears which can be rectified or defective part can be replaced under warranty. There has been no defects purchased by the complaint and hence the complaint is liable to be dismissed.

          The complainant has not carried out the periodical maintenance. The complainant used to approach the authorized service centre only when she wanted to have some repairs. Periodic service has to be carryout at authorized service centers after every 5000 kms and engine oil to be replaced after every 10000 kms. As per the records the complainant had got attended to the vehicle to the authorized service centers only on 9.8.07 after 4987 kms and thereafter on 11.12.08 after 30129 kms. The complainant approached the  3^rd opposite party on  5.5.09 for attending certain complaints and the 3^rd opposite party noticed that   turbo charges assembly had worn out  on account of not carrying out timely periodic services and  3^rd opposite party informed the complainant that the said component could be replaced or repaired on payment basis. The complainant refused for the same and insisted for replacement of component free of cost. Since  the complainant  had violated specific conditions of warranty, she was not entitled for replacement of component free of cost. There is no manufacturing defect to the vehicle and hence there is no merit in the claim and hence the complaint is liable to be dismissed.

The 2^nd opposite party also filed version contending that the complaint is not a consumer and hence complaint is not maintainable before the Forum. 2^nd opposite party admits that the complainant purchased the vehicle Tata Safari model vehicle. It is incorrect to say that the vehicle is having manufacturing defect. It is incorrect to say that opposite party assured replacement. There is no occasion to assure promise. The vehicle does not have any such defects incurable. It is also untrue to say that this opposite party repeatedly promised the complainant till 1.12.08 when 2^nd opposite party was replaced by 1st opposite party with 3^rd opposite party.  Immediately after receipt of notice the 2^nd opposite party contacted complainant and convinced true facts. So the complainant is not entitled to any relief and hence the complaint is liable to be dismissed.

The 3^rd opposite party also filed version admitting that they are present  authorized dealer for sales and service of 1^st opposite party, but denied that the 2^nd opposite party delivered a vehicle having manufacturing defects. The complainant entrusted her safari LX vehicle with registration NO.KL.58/9375 with certain complaint and insisted to carry out repairing work free of cost. But since the warranty of the vehicle is over the  3rd opposite party was  not able to do same without cost. 3^rd opposite party denies the averment that 3^rd opposite party assured that the vehicle would be replace when the complainant compelled several times. When the complainant encrusted her safari LX vehicle with certain complaints, the 3^rd opposite party after through check up the technician of 3^rd opposite party informed the complainant about the repairs and approximate expense. But the complainant insisted to carryout the repairing work free of cost. Since the warranty period is over the opposite party was not able to do the same without cost. Thereafter the complainant requested the opposite party few days time to give the work order and take delivery of the same. So the opposite party waited till 14.5.09 as thee was no response from the complainant, the  3^rd opposite party issued reminders to the complainant on 14.5.09 and on 25.5.09 but  there was no response on the part of the complainant. Thereafter 3^rd opposite party received a notice and 3^rd opposite party sent a reply for the same and insisted the complainant to take back the vehicle within 7 days of receipt of notice. Thereafter the complainant came and takes back the vehicle after recording her satisfaction and endorsed the same and paid the repair charges. The complainant suppressed the fact and filed this complaint with ulterior motives to extract huge amount from 3^rd opposite party. The complainant is not entitled for any relief. The vehicle was purchased during 2007 and used the vehicle for commercial purpose and the vehicle was used by the complainant and drivers in an improper manner. There are no manufacturing defects and if the vehicle has any such defects the complainant will not be able to use the same for the 1^st   two years. If any minor repairs and defects occurred to the vehicle the same was due to improper use and unauthorized service from local workshops. The 3^rd opposite party never assured the complainant to deliver a new vehicle so there is no deficiency of service on the part of 3^rd opposite party and hence the complaint is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

1.        Whether the complainant is a consumer and whether the

    complaint   is barred by limitation?

2.     Whether there is any deficiency on the side of opposite parties?

3.    Whether the complainant is entitled to get any relief as prayed in

       the complaint?

4.   Relief and cost.

                    The evidence consists of the oral testimony of PWs1 to 3, CW1, DW1 & DW2 and Exts.A1to A10 and B1 to B5 and C1.

Issue No.1

          The opposite parties 1 and 2 contended that the complainant is not a consumer and the complaint is barred by limitation. The opposite parties contended that the complainant is using the vehicle for commercial purpose. The complainant deposed before the Forum that “ h­n ss{Uhsd sh¨v HmSn-¡m-dnà Fsâ `À¯m-hmWv h­n HmSn-¡mdv”. There is n averment that she is using the vehicle for commercial purpose. More over the opposite parties failed to prove that the complainant is using the vehicle for commercial purpose. So we are of the opinion that complaint is using the vehicle for personal purpose and hence the complainant is a consumer as defined by the consumer protection Act.

          The opposite parties further contended that the complaint is barred by limitation. As per Ext.A1 invoice it is seen that the vehicle was purchased by the complaint on 16.5.07. But Ext.A4 series history reveals that soon after purchase itself the vehicle shown different defects and the defects were not cured and at last on 28.5.09 the complainant issued notice to replace the vehicle since the defects were not cured. So the several facts which are necessary constituent of a cause action may not occur at one and the same time and in such an event complete cause of action can arise only when last of such facts occurs. So in this case cause of action arose during first half of 2009 and the complaint is seen filed on 3.8.09 and hence it is seen that the complaint is filed within the time limit. So we are of the opinion that the complaint is not barred by limitation and hence issue No.1 is found in favour of the complainant.

Issue Nos. 2 to 4

          The further case of the complainant is that the vehicle was delivered to her with manufacturing defect and there after several repairs was done and the defects were not cured and now the vehicle is not in a position to use. In order to prove her case she produced. PW1 to PW3 and CW1 and documents such as Performa invoice, verified copy of RC, defects note, service history three in numbers, job slip, copy of lawyer notice, postal receipts, acknowledgement cards and owners manual etc. To disprove the case opposite parties also examined DW1 and DW2 And documents such as print out of   entire history of the vehicle, job card, letter dt.14.5.09, letter dt.25.5.09, copy of reply notice, etc. Admittedly the complainant purchased a Tata Safari LX 4.2 Dicor from 2^nd opposite party and now 3^rd opposite party is the dealer of 1^st opposite party. As per Ext.A1 dt.16.5.07, the invoice value of the vehicle is `8, 01,063. The service history Ext.A4(1) and Ext.B2 service history shows that the vehicle became break down within two months of purchase and  it has got starting trouble also. As per Ext.A4 the vehicle became break down while it has run 2939kms and A4 shows that the vehicle has so many complaint like Door ratting noisy, dicy lock noise, A/c cooking excessive etc within two months of purchase. The PW2, husband of the complainant deposed that “ ]pXnb h­n-bpsS Xmt¡m tNmZn-¨-t¸mÄ  t#F-d-Wm-Ip-f¯v Head officeemWv Df-f-sX-¶pT  delivery ka-b¯v Xmt¡m Xcm-sa-¶pT ]dªv Fs¶ Xncn¨v hn«n-cp-¶p. ]ntä Znh-kT h­n I®q-cnÂsh-¨mWv   delivery  X¶-Xp. I®q-cn \n¶p delivery X¶-t¸mÄ h­n perfect Bbn-cp-¶n-Ã. Bb-Xn-\m receipt “received the vehicle perfect F¶ `mKT Rm³ H¸n-«p-sIm-Sp-¯nÃ. Service book\p ]pd¯v  scratches D­v F¶p FgpXn taSn-¨n-cp¶p”. So this deposition of the PW2 shows that the vehicle is not in perfect condition on the date of delivery of the vehicle itself. He further  deposed that “AXn-\p-ti-jT Hcp amk-¯n-\p-f-fn h­n HmSn-¡p-¶-Xn-\nsS  engine off Bbn X\nsb \n¶p-t]m-bn. Bb-Xn-\m B h­n ho«n Ib-än-sh¨v  thsd h­n-sb-Sp¯v bm{X sNt¿-­n-h¶p”. This words also substantiate the complainant’s case.

           The opposite parties contended that the defect caused to the vehicle is because of not carrying out periodical service and maintenance. But the Commissioner reported that the vehicle was affective 1^st service on 3.11.07 on 10000kms. from 2^nd opposite party and on 22.1.08 on 15000 kms from 2^nd opposite party and on  31.5.09 on 20000 kms. from 3^rd opposite party.  He further reported that the defects noticed to the vehicle cannot be recorded by service. The Commissioner reported so many defects to the vehicle such as very heavy excessive  smokes coming out from exhaust pipe on acceleration and may be due to none functioning of turbo charges, due to excessive collection of unburnt diesel in combuston chamber or may be due to some defects in fuel injunction. He further noticed that the  vehicle is not heavy sufficient pulling power so as to climb a small steep having 35 degree, the break system  automatically jammed, AC is not working properly and the engine have unusual sound  right from the date of delivery. This along with the deposition of witness and the service records produced by both complainant and opposite parties’ shows that the vehicle was defective right from beginning within the warranty period itself and the opposite parties were unable to rectify these defects even after repeated repairs by opposite party. The Commissioner also reported that defects cannot be rectified by service and could be rectified only by either replacement of the parts or proper and effective repair of the system. But the opposite parties very well proved that they cannot repair the system effectively and properly. More over from the facts and circumstances of the case it is seen that the complainant has used the vehicle with high mental agony and physical hardships. So we are of the opinion that the ends of justice can be meet only either by replacing the vehicle with a new one or to  return back the invoice value of the vehicle with `50,000 as compensation and `2,000 as cost of the proceedings and order passed accordingly. 2^nd opposite party is exonerated from liability since they are not the dealer of 1^st opposite party now.

          In the result, the complaint is allowed directing the opposite parties 1 and 3 to replace the vehicle with a new one or to refund the invoice value of the vehicle and to pay `50,000 (Rupees Fifty thousand only) as compensation and `2000(Rupees Two thousand only) as cost of the proceedings to the complainant with one month from the date of receipt of this order. In default the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                              Sd/-                     Sd/-                           

                         President                    Member

APPENDIX

Exhibits for the complainant

A1.Copy of the proforma invoice issued by OP

A2.Copy of certificate of registration

A3.Copy of defects noted dt.31.5.08

A4. Copy of the service history

A5.Copy of job slip

A6. Copy of lawyer notice sent to Ops

A7. Postal receipts

A8 & A9. Acknowledgement cards

A10.Owner’s manual & service book of the vehicle

Exhibits for the opposite parties:

B1.Copy of the service history of the vehicle

B2. Copy of the job card

B3 & 4.Copy of the letter dt.4.5.09 and 25.5.09 sent to complainant

B5. Copy of the reply notice sent to complainant

Exhibits for the court

C1.Commission report

Witness examined for the complainant

PW1.Complainant

PW2. Bessy C Thomas

PW3. JUoseph

Witness examined for the opposite parties

DW1. Shaji Valasseri

DW2. Savio.E.J

                                                          /forwarded by order/

                                                          Senior Superintendent

Consumer disputes Redressal Forum, Kannur.