Kerala

Idukki

CC/57/2017

Philip Mathew - Complainant(s)

Versus

Tata Motors - Opp.Party(s)

05 May 2023

ORDER

DATE OF FILING : 29.3.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the    5^th   day of   May, 2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.57/2017

Between

Complainant                                          :     Philip Mathew, S/o. Mathew,

                                                                   Thaliyachira House,

                                                                   Rajakumari South, Idukki – 685619.

          (By Adv: K.M. Sanu)

And

Opposite Parties                                     : 1. Tata Motors Ltd.,

                                                                   Represented by its Managing Director,

                                                                   Head Office at : Bombay House,       

                                                                   Homi Mody Street, Fort,

                                                                   Mumbai – 400 001.

                                                                2. The Managing Director,

                                                                   Tata Motors Ltd.,

                                                                   Bombay House,Homi Mody Street, Fort,

                                                                   Mumbai – 400 001.

           (Both by Advs: V. Krishna Menon,

     Sibi Thomas, Surya J., Devi. C. Haridas,  

          Prinsun Philip & Uma Gopinath)

      3. R F Motors (P) Ltd.,

          Represented by the Managing Director,

                                                                   Sky Line Gateway Apartments,

                                                                   Pathadippalam, Kochi – 682 033.

                                                                4. The Managing Director,

                                                                   R F Motors (P) Ltd.,

                                                                   Sky Line Gateway Apartments,

                                                                   Pathadippalam, Kochi – 682 033.

                                                                5.  Tata Motors Finance Ltd.,

                                                                   Nanavati Mahalaya, 3^rd Floor,

                                                                   18 Homi Mody Street, Mumbai – 400 001.

                                                                6.  Tata Motors Finance Ltd.,

                                                                   No.8/311, Velloorkkunam, VRS Plaza,

                                                                   M.C. Road, Muvattupuzha – 686 673.

      (For 5 & 6 By Advs: P. Fazil, Jayasree Manoj,

Jithin Paul Varghese & Priyanka M.P.)

                                        (cont.....2)

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O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Initially it was filed before CDRF at Ernakulam and taken on file as CC 232/13.  Thereafter as per order dated 29.7.2015, Forum at Ernakulam had returned the complaint to complainant for presentation before this Forum, since according to the Forum at Ernakulam, cause of action had arisen at Idukki as the vehicle, which is the subject matter of the dispute here, was delivered within the jurisdiction of this Forum, regardless of the fact that opposite parties 2, 3 and 6 were having their offices within the limit of Ernakulam Forum, vehicle being sold by OP3 and opposite parties 1, 2 and 5 maintaining their offices in Mumbai City, Maharashtra state.  Upon being presented before this Forum, case was taken on file and assigned the present number.  Case of  complainant so disclosed from his complaint is briefly narrated hereunder :

 

          Complainant had purchased a new Tata Aria –Pride car bearing Reg. No. KL-37-A-9414, on 17.3.2012, from 3^rd opposite party which is M/s R.F. Motors Pvt. Ltd., represented by its Managing Director who is arrayed as 4^th opposite party.  Car was manufactured by M/s. Tata Motors Ltd., which is the 1^st opposite party herein represented by its Managing Director arrayed as 2^nd opposite party.  Complainant had paid Rs.3 lakhs towards booking of the vehicle.  He had availed financial assistance from 5^th opposite party, namely, M/s. Tata Motors Finance Ltd., having its Head Office in Mumbai.  6^th  opposite party is Muvattupuzha branch of 5^th opposite party.  Initially no one was shown as representing 1^st opposite party or 2^nd opposite party before this Forum.  Thereafter correct name and address of 1^st and 2^nd opposite parties were incorporated by ammendment upon application by complainant.  According to complainant, opposite parties 1 to 4 were benefited by the loan advanced to complainant by opposite parties 5 and 6.  They are charging exorbitant and excessive interest for the loan.  Opposite parties 1 to 6 are acting together so as to make undue advantage without considering its adverse effect on complainant.

 

          Complainant further submits that after the car had run for about 1500 kms, tyres of the vehicle had shown uneven wear and tear.  Air conditioner of the car was also having complaints. Complainant had taken the car to M/s. Balasankara cars
Theni, which is an authroised service centre of 1^st opposite party, on 28.3.2012.  Service personnel there had assured the complainant that defect of the vehicle will be rectified. At that time, first free service of the vehicle was also done.  Car was delivered to the complainant on the same day and he was informed that  complaint has been rectified.  Believing this, complainant had taken delivery of the vehicle.  Though it was free                                                                                                                    (cont.....3)

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service, M/s. Balasankara cars had charged Rs.720/-.  They informed complainant that defect of air conditioner cannot be rectified, since pipe of air conditioner needs correction.  This can be done only at the authorised service centre of 1^st opposite party at Ernakulam.  However, tyres of the vehicle continued to wear abnormally.  On 29.5.2012, complainant had again taken the car to Balasankara cars at Theni.  He informed them that the defect is till persisting.  Service manager was also convinced that the tyres were showing uneven wear.  After inspection, they informed complainant that there was some difference in alignment of tyres as they had informed him when the vehicle was initially taken to them for rectification of the same defect.  On 2^nd occasion also, they had charged Rs.510/- and informed complainant that the defect has been completely rectified.  However, this was not so.  Tyres continued to show uneven wear and tear.  Air conditioner of the vehicle was not working.  There was complaint with regard to central lock system.  Vehicle was giving very less mileage.  Hence complainant had taken his vehicle to 3^rd opposite party in August 2012.  These defects were noticed by service personnel also.  They had delivered the vehicle back to complainant claiming that defect have been rectified.  However,  defects were not rectified as claimed by them.  When vehicle completed 15000 kms, these complaints become more worse.  On 3.9.2012, complainant had taken the car to 3^rd opposite party for rectifying the same defects.  Service personnel had noted the complaints.  On 18.9.2012, vehicle was again delivered to complainant with an assurance that the entire defects have been rectified.  It was not so.  After using the car for few days, complainant noticed that the defects were not rectified.  Owing to uneven wear and tear of tyres, front tyres of the vehicle had burst.  These were replaced by 3^rd opposite party with  new tyres.  However, new tyres also had a very short life span.  Complainant had repeatedly approached 3^rd opposite party since defects were still persisting.  However, they could not rectify these defects.  On each occasion they used to deliver the vehicle claiming that defects were rectified.  In first week of August 2012, complainant noticed some strange noise emanating from engine / gear box of the vehicle.  Sounds were coming from the under body of the vehicle also.  Complainant was experiencing difficulty in changing gears.  On 4.10.2012, complainant had again taken the vehicle to 3^rd opposite party.  Service Advisor of 3^rd opposite party attended the vehicle.  After driving it, he informed complainant that the gear box was having complaints.  He also informed complainant that it will take some time to rectify the defect of gear box.  He had also noticed dangerous condition of the tyres.  Complainant was told that some of the parts were not readily available and hence vehicle can be delivered only within a week. However, vehicle was not delivered within a week as assured by 3^rd opposite party.  Though 3^rd opposite party was contacted by complainant on several occasions, each time 3^rd opposite party had sought time to deliver the vehicle after rectifying complaints.  Vehicle was retained for more than one month by 3^rd opposite party.  On 5.11.2012, complainant received a phone call from   service advisor informing that vehicle is ready for delivery and that entire defects have been rectified.  On 11.11.2012, complainant had                                                                                                                    (cont.....4)

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gone to the office of 3^rd opposite party for taking delivery.  He took a test drive of the car to know whether defects have been actually rectified or not.  However, to his disappointment, complainant    realized that the defects were not rectified.  He informed the service advisor of 3^rd opposite party accordingly.  However, service advisor claimed that the defects were rectified.  Complainant submits that these defects were owing to manufacturing defect of the car.  He had issued a letter to the service manager of 3^rd opposite party on 11.11.2012, stating that vehicle has serious manufacturing defect and hence it should be substituted by/with a new one.  Complainant also informed that he will not take delivery of  vehicle as the same is having manufacturing defect.  Vehicle is laying in the yard of 3^rd opposite party.  On 16.11.2012, complainant received a notice issued by the Manager (Customer Relation) of 3^rd opposite party asking him to take delivery of the vehicle immediately.  He was informed vide the letter that an amount of Rs.100/- per day will be charged as demurrage, if the vehicle is not taken back.  On 26.11.2012, complainant had sent a reply to the said manager stating that he was not satisfied with the claims made by 3^rd opposite party that the vehicle has been repaired.  He also informed them that the vehicle was having frequent complaints which have arisen immediately after purchase of the same.  he also told the manager of 3^rd opposite party that he is not interested in taking delivery of the vehicle and that he is not liable to pay demurrage as claimed.  On 28.11.2012, complainant had issued a lawyer notice to opposite parties, informing them about the defects of vehicle.  Complainant had demanded replacement with a new vehicle within 10 days after receipt of the notice.  Though the lawyer notice was received by opposite parties, they have not replaced the vehicle.  1^st opposite party sent a reply dated 27.12.2012 stating that they have called for report and will contact complainant soon.  Till date 1^st opposite party had not contacted complainant.  Vehicle was purchased by complainant for personal use in March 2012.  It was driven for 16000 kms.  From the date of purchase, vehicle was not functioning properly.  It has serious manufacturing defects.  Though the vehicle was taken to the service centre of 3^rd opposite party on several occasions, it had also failed to rectify the defects.  Complainant had come to know after enquiries that  model   purchased by him is having serious manufacturing defects.  Complainant was unable to use his vehicle properly due to defects mentioned above.  He had purchased the vehicle upon being attracted by advertisement and brochures of 1^st opposite party with regard to the vehicle.  It was mentioned in the advertisement that the vehicle was having good mileage and performance.  However, the vehicle delivered to complainant was not having good mileage or performance as claimed in advertisement.  Complainant had driven the vehicle only as per the instructions given by 1^st opposite party in service manual book.  He has maintained his vehicle properly.  Service of the vehicle was done at  correct/regular intervals in the authorised service centre of 1^st opposite party.  It was not used in any manner contrary to the instructions given in service manual.  It was exclusively used by complainant for his private purposes.  Complainant is an experienced driver and is having a valid driving licence since 1991 onwards.  He had                                                                                                              (cont....5)

• 5  -

driven many vehicles manufactured by different companies.  He is well aware of the defects and performance of motor cars.  Opposite parties are jointly and severally liable to replace the vehicle.  So also jointly and severally liable to  pay compensation to complainant for the loss suffered by him in purchasing a defective vehicle.  In fact, all the opposite parties have jointly cheated the complainant.  Normally, defect in gear box of the vehicle will occur only after the vehicle have done for more than 99999 kms.  However, in this vehicle, gear box complaint has come when the vehicle has done less than 20000 kms.  Apparently, attempt of opposite parties 1 to 4 is to compel the complainant to pay excess amount to opposite parties 5 and 6.  Complainant therefore prays for a direction against opposite parties to substitute a new defect free car in place of defective one or in the alternate to pay a sum of Rs.17 lakhs towards value of the new vehicle and for loss suffered by complainant.  He also seeks direction against 5^th and 6^th opposite parties not to charge interest or any other charges for the loan availed by complainant from November, 2012 until the new defect free vehicle is handed over to him.  He also seeks a compensation of Rs.2 lakhs from opposite parties 1 to 4 and also for litigation costs from them.

 

          2. Opposite parties have appeared and filed written versions disputing the claim.  Opposite parties 1 and 2 have filed a joint written version.  Their contentions are briefly discussed hereunder :

 

          According to them, complaint is only an abuse of process of law.  It is not maintainable in its present form against 1^st and 2^nd opposite parties.  Complainant has made misconceived and baseless allegations of deficiency in service, gross negligence and unfair trade practice against answering opposite parties without any evidence.  complainant has no case that there was  deficiency in service from the side of answering opposite parties.  Relationship between 1^st and 2^nd opposite parties with 3^rd opposite party is on a principal to principal basis.  They are not liable for any action or omission from the side of 3^rd opposite party. 

 

          Complainant is not a consumer within the meaning of the term as defined under Section 2(1)(d) of the Act.  Vehicle has been put to commercial use.  It has been run at an average of 100 kms per day.  It has no manufacturing defect as claimed by complainant.  Vehicle purchased by complainant is of highest quality.  Complainant had taken delivery of the same after being satisfied of its condition and performance.  Vehicle was delivered after carrying out pre-delivery inspection (PDI) by dealer.  All cars and vehicles manufactured by answering opposite parties are marketed only after prototype of the vehicle is approved by the Automotive Research Association of India (ARAI).  All the vehicles manufactured in the plant of answering opposite parties are put to stringent quality and control checks and test drives by Quality Assurance Department before being despatched for sale.  1^st opposite party is ISO TS/16949                                                                                                                    (cont.....6)

• 6  -

certified, which is international standard for quality systems for all automotive companies.  This international standard specifies requirements for a quality system where an organisation needs to demonstrate its ability to consistently provide products which meet customer satisfaction and confirmation to statutory and regulatory requirements.  After leaving manufacturing  plant, vehicle is subjected to several tests like that of electrical adjustments, dynamometer, brake test, under pit test and performance test before its despatch to market.  Whenever a new vehicle reports to a workshop for scheduled services or repairs, complaints / grievances of customer are recorded in job card, which do not imply admission of any defects in the vehicle, but a mere representation of customer grievances.  Thereafter standard checks are carried out in the workshop and observation is recorded by service advisor on the back side of job card.  After despatch to authorised dealers, they are required to carry out PDI of all new vehicles before selling these to customers.  Vehicle is checked by Quality Inspector and Diagnostic Expert cum Trainer during the pre and post repairs to ensure quality workmanship.  The service advisor of workshop who interfaces with customer is adequately trained to provide proper job explanation of the works carried out and even enables the customer to test drive at the time of delivery.  Vehicles manufactured by answering opposite parties comply with warranty, assurances and specifications with regard to quality and performance of vehicle.  Hence it cannot be said that there could be complaints of deficiency in service against answering opposite parties.

 

          Though manufacturing defect is alleged, there was no expert opinion or report with regard to the same.  As per Section 13(1)(c) of the Act, District Forum is supposed obtain report with regard to the alleged defects from an approved laboratory after analysis or test.  In the present case, there is no such expert report and hence complaint is to be dismissed instantly.  Several decisions of Hon’ble Supreme Court and National Commission are mentioned in the written version with extensive quotes.  We are avoiding repetition of these quotes in this order for the sake of brevity, though we have noted all these.  Opposite parties 1 and 2 deny that the complainant have paid Rs.3 lakhs as advance amount and booked the vehicle.  They also deny allegations that answering opposite parties have benefited out of the loan granted to complainant.  No undue advantage was taken by answering opposite parties along with others without considering its adverse effect upon complainant.  Wild allegations have been made by him against these opposite parties. They have no knowledge with regard to the alleged exorbitant or excessive interest charged for the loan by 5^th and 6^th opposite parties.  It is true that complainant had taken the vehicle to 3^rd opposite party service centre in August 2012, within 4 ½ months from the date of taking delivery.  By this time, the vehicle had covered 13514 kms.  Average running is 100 kms per day. Complainant had voiced concern about wear and tear of both tyres on the front side and also that the Stepney tyre was broken.  Upon inspection, all the 4 tyres were found to have some wear and tear and hence a job card was opened.  Complaint with regard to tyres were rectified by                                                                                                                           (cont....7)

• 7  -

correcting wheel alignment and balancing the shim adjustment and chamber bolt as per specifications.  Stepney tyre was replaced with a brand new tyre.  No amount was charged as the work was done under warranty.  Stepney was replaced only as a mark of goodwill.  Complainant was provided with another car for his personal use.  On 17.8.2012, complainant collected the car.  Complainant had signed and rated the service experience of 3^rd opposite party in customer feedback form showing it as excellent and hence it can be safely presumed that there is no deficiency in service from the side of 3^rdand 4^th opposite parties.  On 3.9.2012, complainant brought the vehicle to the workshop of 3^rd opposite party and again reported that there was uneven wear and tear of tyres.  There was complaint with regard to fuel tank lid lock and also that the vehicle was showing low mileage.  At that time vehicle had run 15094 kms.  3^rd opposite party had replaced fuel tank lid lock, adjusted wheel balancing and standard check was done to ascertain whether the vehicle was running at low mileage.  All repairs were done under warranty and nothing was charged.  Vehicle was returned to complainant after complete service and repairs on 8.9.2012 and again service was rated as excellent, by complainant.  That on both occasions complainant had rated service given by opposite party as excellent.  Hence contentions that defects persisted despite effecting repairs by 3^rd opposite party on both occasions are false.  These opposite parties are not having any knowledge about bursting of tyres.  However, following customer care and utmost satisfaction policy, 3^rd opposite party had replaced front tyres of the vehicle with brand new tyres free of cost.  Allegations that newly replaced tyres had also worn out are false.  After 8.9.2012, complainant had approached 3^rd opposite party only on 4.10.2012 for scheduled service of 15000 kms, when the vehicle had run 16548 kms.  Complainant has not reported about any strange sound emanating from engine / gear box as alleged in the complaint at that time.  He had voiced complaints about moisture in the AC wind shield and also about under body sound from middle of the vehicle.  He had also instructed 3^rd opposite party to do wheel alignment and wheel balancing also.  It is incorrect to say that the service advisor after driving the vehicle had sought for more time for rectifying the complaint.  Service personnel of 3^rd opposite party were able to diagnose the real problem only after a detailed inspection.  Fault was with clutch assembly.  Complainant had only stated about under body sound from the middle side and also to check silencer in the job slip dated 4.10.2012.  Service engineers after detailed inspection and test drive, found that the sound was emanating from clutch assembly.  Some parts of clutch assembly were not readily available with 3^rd opposite party.  These had to be ordered and brought from manufacturers in Pune.  Complainant was informed about this.  A spare car was offered for his personal use by 3^rd opposite party also.  However, he had not preferred to avail this facility.  3^rd opposite party had rectified the complaint immediately upon receipt of parts from Pune.  They had replaced rear tyres with brand new tyres as part of courtesy service.  Wheel alignment and balancing was also done as per instructions in job slip.  All these works were done under warranty.  Complainant was informed about completion of work and asked to take delivery of vehicle. But, on                                                                                                              (cont....8)

- 8  -

12.11.2012 complainant approached 3^rd opposite party and requested the service manager to replace the vehicle with new one.  Service manager informed  complainant that defects have been rectified and had asked him to take a test drive.  Complainant had refused to do so and left without taking delivery.  It is true that the vehicle is lying in the yard of 3^rd opposite party after rectification of defects reported on 4.10.2012.  It was complainant who had informed 3^rd opposite party that he will not take delivery of the vehicle since it has manufacturing defects and had requested for a new vehicle in its place.  Customer relations manager of 3^rd opposite party was constrained to issue a letter to the complainant claiming demurrage charges at the rate of 100/day, since fully rectified vehicle was lying in the workshop for no reason.  Complainant had sent a reply stating that he was not satisfied with the service done by 3^rd opposite party and also that he was not interested in taking delivery of the vehicle and that he is not liable to pay demurrage.  The distance covered by the vehicle discloses that it was not put for personal use but for commercial.  Opposite parties are not aware how the complainant came to a conclusion that the vehicle has manufacturing defects.  Proper service was given by 3^rd opposite party.  Fact that the vehicle had run 16548 kms by itself would show that it has no manufacturing defects as alleged in the complaint.  All other minor defects noted by complainant were also rectified, damaged parts replaced with new ones and other works were done by 3^rd opposite party as requested by complainant.  Contentions that the vehicle is not functioning properly, that it has a serious manufacturing defect and 3^rd opposite party had not rectified the complaint are false.  Contentions that he was deceived by 3^rd opposite party are incorrect.  Further contentions that similar vehicles manufactured by 1^st opposite party are having same defects are also false.  Claim of the complainant that the vehicle was being driven only in accordance with the instructions given in operating manual and it has been regularly serviced are also not correct.  Wear and tear of tyres as well as the clutch were on account of rash driving and non-maintainance of proper tyre pressure by  complainant.  It is again reatriated that there was no deficiency in service from the side of these opposite parties and that best possible service was given to complainant.  Complainant was using the vehicle in high range area and hence usage of clutch was very severe.  Vehicle had covered an average run of 2392 kms per month.  Frequent rash and negligent application of clutch probably is the reason for complaint regarding clutch assembly.  Life span of gear box as well as other parts depends upon nature of use and care.  In July 2013, 5^th and 6^th opposite parties went to 3^rd opposite party service centre seeking compliance of order passed under Section 17 of Arbitration and Conciliation Act, 1996 and thereby to take possession of complainant’s vehicle, on account of default in repayment of loan amount.  Though opposite party had refused to hand over  possession, 5^th and 6^th opposite parties had, with  police assistance taken possession of the car.  It is presently in the custody of 5^th and 6^th opposite parties.  Opposite parties 1 and 2 again contended that there is no deficiency in service or negligence on their part. Allegations are malafide raised.  Vehicle does not have any manufacturing defect. 

                                                                                                                   (cont....9)

• 9  -

Hence complainant is not entitled to seek  replacement of vehicle or in the alternate for it’s price.  Complaint is to be dismissed with compensatory costs.

 

          3. Opposite parties 3 and 4 have filed a joint written version, raising more or less similar contentions.  `

 

          4. Opposite parties 5 and 6 have filed written version jointly.  Their contentions are briefly discussed hereunder :

 

          They have also raised preliminary objections regarding maintainability of the case, raising, more or less, the same contentions addressed by opposite parties 1 to 4.  In addition to these contentions, opposite parties 5 and 6 further submitted that complainant was a chronic defaulter in  repayment of loan instalments.  Default committed by complainant has resulted in addition of delayed payment charges or accrued overdue charges along with balance remaining unpaid.  Complainant has clearly violated the terms of repayment, contained in the agreement.  He has voluntarily applied for loan  after fully knowing about its terms and conditions.  As he had signed the agreement, he is bound by its terms and conditions.  As per clause 3(1) of agreement, complainant had agreed to repay loan instalments as computed by the lender from time to time to be determined from the interest computation date and all other amount due and payable by the borrower to the lender.  He had also acknowledged of having understand the method of computation of interest and instalments.  It is incorrect to say that excess or exorbitant interest is being charged by opposite parties 5 and 6.  Opposite party 5  is a company duly incorporated under Section 45-IA of the RBI Act 1934, as a ‘systematically important’ non-banking finance company having its registered office in Mumbai.  It is widely acclaimed for its reputation and service.  Opposite parties 5 and 6 are doing business in accordance with directives and regulations of RBI.  Complainant as an applicant, approached opposite party for availing finance field assistance to purchase a Tata Aria Pride car. Terms and conditions of loan agreement were explained to complainant by opposite party.  Complainant had, after reading and understanding and agreeing upon the terms, signed the loan agreement which is also a hypothecation agreement  on 24.3.2012, with the answering opposite parties. Car was purchased for Rs.16,20,595/-, which was financed by answering opposite party.  Loan amount was repayable in 5 years along with interest.  Hypothecation is marked in the RC Book of the vehicle also.  Complainant had agreed to pay a total sum of Rs.18,27,000/- towards contract value, subject to terms and conditions of loan agreement.  Contract value amount was to be repaid in 60 equated monthly instalments (EMI) commencing from 15.4.2012 to 15.3.2017.  EMI date was 15^th of every month.  Delay or default in payment was to be met with delayed payment charges / accrued overdue charges.  As on the date of written version, Rs.3,94,889.97/- was due from complainant.  There is no connivance or collusion with other opposite parties to take undue advantage of 

                                                                                                                   (cont....10)

• 10  -

complainant.  No exorbitant or excess interest was charged.  Pleadings to this effect are vague and incorrect.  As per clause 9(a) of loan agreement, complainant was bound to pay all charges due, including delayed payment charges / accrued overdue charges.  Clause 7 also contains similar stipulations.  Opposite parties 5 and 6 deny of having received any notice dated 28.11.2012, purportedly sent by complainant to them.  Opposite parties, being financiers of the vehicle, are not concerned or involved in its manufacturing, sale or service.  They are not liable for any alleged manufacturing defect or deficiency in service purportedly, from the side of other opposite parties.  Complainant is liable to repay loan in accordance with the terms of agreement.  Present complaint is only a tactic adopted by complainant to defraud the answering opposite party by avoiding liability to pay  loan instalments.  As per receipt information maintained by opposite parties 5 and 6, complainant had repaid Rs.1,21,530/- as on 14.6.2013.  On 14.6.2013, overdue instalments totalled to Rs.3,04,770/-, accrued overdue charges is Rs.53,566.12/- all totalling to Rs.3,58,336.12/-.  As per clause 18(a) of the agreement, lender will be entitled to take possession, seize, recover, appoint a receiver / manager, remove the asset by public auction or by private contract at the best available price according to the prevailing market condition.  The allegations of  manufacturing defect and deficiency in service are not at all maintainable against  opposite parties 5 and 6.  Directions sought for against opposite parties 5 and 6 cannot be granted for the aforesaid reasons.  Complaint is to be dismissed with costs.

 

          5. Both sides were given sufficient opportunity to take steps and thereafter case was posted for evidence.  On the side of complainant, he himself was examined as PW1 and Exts.P1 to P15 were marked.  Regional customer care manager of 1^st opposite party was examined as a witness on its side as RW1.  Exts.R1 and R2 series 2 in numbers were marked.  No oral evidence was tendered by other opposite parties.  Evidence was closed.  We have heard the able counsel for complainant and opposite parties 1 and 2.  There was no representation from the side of opposite parties 3 and 4.  It was submitted from the side opposite parties 5 and 6 that no reliefs are prayed for against these parties as per the admission given by the complainant in box.  Hence complaint is to be dismissed as against them.  Now the point which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether the car has any manufacturing defect ?

3)  Whether there was any deficiency in service on the part of opposite parties 3 to 6 ?

4)  Whether complainant is entitled for the relief prayed for ?

5)  Final order and costs ?

 

6. Point Nos.1 to 4 are considered together for the sake of convenience :

 

          Preliminary objection taken by opposite parties is with regard to maintainability of complaint, since according to them complainant is not a consumer as defined under                                                                                                                 (cont....11)

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section 2(1)(d) of the Act.  They are mainly relying upon evidence of complainant himself in this regard which takes in his admission also of the fact that the vehicle had during the short period when it was in the possession of complainant, run an average  distance of 100 per day.  This would indicate that the vehicle was being used commercially. 

 

          We find force in these contentions. Circumstances proven, when analysed in the light of principles contained in S.114 of Evidence Act, though The Act is not applicable as such, are instruments which can be relied upon to uncover the truth. These are summary proceedings, yet manner of appreciation of evidence is not streamlined by the Act, though manner of procedure is regulated.  Neither in the complaint or in the proof affidavit filed by him, complainant has mentioned his vocation. In other words complaint and affidavit are silent as to how complainant is earning his livelihood.  In the proof affidavit, complainant has only stated that he being the complainant in this case so named above, is swearing this affidavit upon oath.  In the address of complainant in cause title of complaint, we notice that his father’s name, house name, age and address in Rajakumari South is given, but his vocation or profession has not been mentioned.  Though the complainant has stated in the complaint that the vehicle is being used by him personally  for his private use, these averments are not at all convincing in the light of evidence tendered by him. During his cross examination by opposite parties 1 and 2, complainant has admitted of owning a car and jeep apart from the vehicle in question. That he is residing in Rajakumari town.  That his cardamom plantation is only 1 ½ km away from his house.  That he is using jeep for carrying loads.  He has also admitted that he has possessed the vehicle in question only for a short span of 4 months and more and by this time the vehicle had covered 16548 kms.  Running was 100 kms. by average per day.  At this juncture, it would be apposite to refer to the documents produced and proved by complainant.  Exts.P13 is an invoice issued by M/s. Balasankara cars, authorised dealer of 1^st opposite party, approached by complainant initially.  According to complainant, he had taken the vehicle, after its purchase on 17.3.2012, to Balasankara cars, on 28.3.2012, with complaints of uneven wear and tear of tyres. However as per Ext.P13 invoice,  vehicle was brought there on 28.3.2012, for the initial free service.  Though total amount charged was Rs.720/- for wheel alignment, balancing and labour charges connected with the same.  For  free servicing, no charges are seen raised.  It is pertinent to note that the vehicle was purchased and taken delivery on 17.3.2012.  Ext.P13 is dated 28.3.2012.  On 28.3.2012, the vehicle is shown to have run 1598 kms.  Average running for one day after taking delivery is 159.8 kms.  Ext.P12 is 2^nd tax invoice issued by Balasankara cars dated 29.5.2012.  This is 2 months after Ext.P13, which is dated 28.3.2012.  As per Ext.P12, vehicle is shown to have covered 8939 kms.  During 2 months, the vehicle had covered 7341 kms.  Average running per day is 122.32 kms.  Ext.P11 is copy of job slip dated 4.10.2012 issued by 3^rd opposite party.  Odometer reading as per Ext.P11 is 16584.  Until 4.10.2012, vehicle was used by                                                                                                                             (cont....12)

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complainant from 17.3.2012, which would be a period of 6 months and 17 days.  Average running per kilometre would come to 84 kms to be exact.  It is clear that the vehicle was being run extensively from the date of taking delivery.  Such extensive use could not be, in the common  course of ordinary events, private or personal.  Complainant has admitted that he is owning a jeep which he is using for carrying loads apart from the car which is probably for his private or personal purposes. He has a cardamom plantation also. Visits to dealership outside the State would imply that vehicle was being run across the border in neighbouring state also, since seeing dealer across the border would be only coupled with other trips. Ordinarily complainant would have taken the vehicle to O.P.3’s  workshop for initial repairs and maintenance since it was a new one. Complainant has not stated the reasons for running the  vehicle extensively and purpose of such journeys. In all probabilities, the vehicle herein was also being used by  complainant for carrying loads of cardamom inside and outside the State as well. Vehicle in question is a passenger car which is not meant for carrying loads. This  would also imply that the vehicle was being used for commercial purposes.  As mentioned earlier complainant has not mentioned his job, profession or vocation. It was the bounden duty of the complainant to disclose what was his vocation or means of livelihood, in the complaint or atleast in the proof affidavit.  He has not done so.  Though he had a car for his personal use, he had again opted to purchase the present vehicle which is a passenger vehicle, a large one in the category of MUV which was not meant for carrying loads. That being so, we are of the view that the facts mentioned above  being decisive and material, purpose of plying the vehicle is to be presumed as commercial, in the absence of reliable evidence from the side of complainant that vehicle was used only for his private purposes, especially, considering the extensive distance covered by the vehicle on a day to day basis.  Complainant has not succeeded in proving that the vehicle was purchased by him for his private or personal use.  On the other hand, circumstances which have emerged in evidence tendered by the complainant himself during cross examination, coupled with non-disclosure of his  job, profession or vocation in the complaint and proof affidavit would prove to more than a degree of probability that the vehicle is being used for commercial purposes.  Therefore, we find that complainant cannot be considered as a consumer as defined under Section 2(1)(d) of the Act.  Therefore, we cannot  give the benefit of  explanation given under the provision.  Complaint  cannot be maintained either before this Forum. 

 

Next contention taken is of manufacturing defect.  Main defect attributed to the vehicle is of uneven wear and tear of front tyres.  According to complainant, tyres were repeatedly replaced due to uneven wear and tear and this was owing to the manufacturing defect of the vehicle.  Complainant is relying upon Exts.P11 to 15 in this regard along with Ext.R1 produced by 1^st opposite party.  In the written versions filed by opposite parties 1 to 4, they have admitted of having replaced tyres repeatedly owing to wear and tear. However they contend that as warranty was not over they had consented                                                                                                                 (cont....13)

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to replace worn out tyres under warranty. They would contend that only customer satisfaction was considered and hence no charges were levied from complainant.  We find it difficult to believe this  for the reason that ordinarily no manufacturer or dealer will agree to replace costly components like tyres, if these are not covered by warranty.  We find nothing in the records that the replacement of tyres was done as a gesture of goodwill  or customer satisfaction. Yet we are of the view that more evidence is required from the side of complainant to prove that uneven wear and tear of tyres is owing to manufacturing defect. 

 

As rightly pointed out by opposite parties 1 to 4, there was no attempt from complainant to obtain an expert report with regard to the vehicle at the inception of the case itself.  This complaint was filed before the Forum at Ernakulam on 22.3.2013.  Complainant had filed IA 44/2014 for expert commission before that Forum only on 16.1.2014.  At this juncture, it is pertinent to note that opposite parties 3 and 4 have filed written version as earlier as on 3.9.2013, contending that the vehicle has been repossessed by opposite parties 5 and 6, in July 2013, on the basis of an order passed under Section 17 of Arbitration and Conciliation Act of 1996. This could be only for the purpose of auction / sale of vehicle by opposite parties 5 and 6 to realise overdue loan instalments.  On the application filed for appointment of an expert for inspection of vehicle, Ernakulam Forum has passed an order appointing the expert on 11.2.2014 itself.  However, expert had sent a report on 27.8.2014 that on the proposed date and time of inspection, which was  26.8.2014, 10.30 am, inspection could not be carried out due to absence of complainant and non-availability of vehicle as such.  There is no expert opinion with regard to the alleged manufacturing defect.  Opposite parties 1 and 2 are also relying upon Ext.R2 series of delivery notes signed by complainant to prove that there was no deficiency in service from the side of opposite parties 3 and 4.  However, we find that these delivery notes are printed forms where there is no space for expressing personal opinion of customer with regard to the service rendered.  Obviously, he had signed on the dotted line in  delivery note for the purpose of taking possession of vehicle and the printed opinion in it that the service was excellent could not be pinned upon him.

 

          But, as mentioned earlier, we find that the vehicle was used extensively, running a distance of 83 kms/day, while it was being possessed by complainant for a short span of 4 months and more.  It was being plied in high range area as mentioned in earlier paragraphs.  Probability is that it was put to commercial use viz., carrying of loads.  These probabilities would go against complainant’s case that the vehicle was being used in accordance with the instructions given by 1^st opposite party in its operation manual. It is a passenger car and if used for carrying loads there is every possibility of it’s components like tyres, front end assembly being put to extreme use. Circumstances which emerge from the evidence tendered would probablise that the vehicle was being                                                                                                                    (cont.....14)

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plied in high range area for commercial purposes like carrying loads extensively.  Manner of driving, area where vehicle is plied etc would also reflect in the wear and tear of components of the vehicle.  Yet another complaint  voiced by complainant is with regard to strange sound emanating from the bottom part of  vehicle.  Though the complainant would associate the sound with faulty gear system and contend that he was not able to shift gears smoothly, opposite parties 1 and 2 have pleaded that the noise was owing to fault in clutch assembly.  When the fault in clutch assembly is considered along with the uneven wear and tear of tyres probability of the vehicle being used commercially as mentioned earlier becomes more stronger.  Unless there is an expert report with regard to front end assembly of the vehicle, front chassis and connecting components,  wear and tear of the tyres cannot be attributed to the manufacturing defect of the vehicle.

 

We also notice that moistening of the wind shield owing to improper functioning of air conditioner is also mentioned by complainant.  These are minor complaints which according to opposite parties were attended to by service personnel of opposite parties 3 and 4.  Moistening of window glasses, especially front windshield during rainy seasons when air conditioner is on is a common phenomenon for which there are                          provision to blow hot air  given in the control panel of the car itself.  It cannot be considered as a manufacturing defect of the vehicle.  That apart complainant himself has admitted during his cross examination that he had seen the vehicle being plied in Adimali shortly before his examination in this case. Ext.R1 would disclose that the vehicle is currently in use as per 1^st page of Ext.R1, last service of the vehicle was on 8.6.2022.  It had covered 45725 kms.  Considering all these factors, in particular, lack of expert opinion, we are of the view that the complainant has not succeeded in proving that the car was defective.  So also, there is no evidence sufficient to prove that there was deficiency in service from the side of opposite parties 3 and 4.  We find no fault with the advertisement or brochures with regard to mileage and performance of the car as there is no expert evidence to prove otherwise.  Moreover, none of those brochures or advertisements were submitted before this Forum by complainant.  Neither had he chosen to summon those for perusal.  Manufacturing defect, deficiency in service and misleading advertisement so alleged remain unproved.  Yet another contention taken is of opposite parties 1 to 4  colluding together with opposite parties 5 and 6 to make unlawful gains  from complainant.  It is a far-fetched allegation devoid of any specification or proof.  Complainant does not say what is the exorbitant charge levied from him by opposite parties 5 and 6.  He has not prayed for any relief against opposite parties 5 and 6 in this regard.   The only prayer sought against opposite parties 5 and 6 in the complaint is to restrain them from collecting interest and other charges until the vehicle is replaced by a new one.  It is only sought for as an auxiliary prayer to the main relief which is the first one.

 

                                                                                                                    (cont....15)

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To put it shortly, none of the allegations have been proved.  Hence we find that complainant is not entitled for the reliefs claimed in the complaint.  Point Nos.1 to 4 are answered accordingly. 

 

7.  Point No.5 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.  Parties shall take back extra copies, without delay. 

 

                             Pronounced by this Commission on this the  5^th  day of May, 2023

 

 

                                                                                                Sd/-

    SRI. C. SURESHKUMAR, PRESIDENT

 

 

                             Sd/-

 SMT. ASAMOL P., MEMBER

 

 

                        Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                             (cont....16)

 

• 16  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Philip Mathew.

On the side of the Opposite Party :

RW1        -  Shaji Valasseri.

Exhibits :

On the side of the Complainant :

Ext.P1      -   Copy of lawyer notice issued by complainant.

Ext.P2      -   Copy of letter given by opposite party.

Ext.P3      -   Copy of reply to Ext.P2.

Ext.P4      -   Reply to Ext.P1.

Ext.P5      -  Copy of RC of the vehicle.
Ext.P6      -  Job slip dated 15.3.2012.

Ext.P7- P10 -  Proof of delivery cards issued from EMS Speed Post – 4 Nos.

Ext.P11    -  Job slip dated 4.10.2012.

Ext.P12    -  Tax invoice dated 29.5.2012.

Ext.P13    -  Tax invoice dated 28.3.2012.

Ext.P14    -  Copy of letter issued by complainant to opposite party.

Ext.P15    -  Copy of policy.

On the side of the Opposite Party :

Ext.R1     -  Service history of the vehicle.

Ext.R2     - Service history of the vehicle.

Ext.R2(a) – Copy of customer satisfaction / delivery note.

 

 

                                                                                      Forwarded by Order,

 

 

 

                                                                                  ASSISTANT REGISTRAR