Delhi

North East

CC/49/2016

Mr. Vipin Kr. Gupta - Complainant(s)

Versus

The Area Manager TVS Motor Company Limited - Opp.Party(s)

11 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.49/16

 

In the matter of:

 

	Mr. Vipin Kumar Gupta C-74, West Gorakh Park Extn. DDA Colony, New Zafrabad, Shahdara-110032.	Complainant
	Versus
	The Area Manager, TVS Motor Company Ltd K-23, First Floor, Lajpat Nagar-II, New Delhi-110024.   The Sales Manager, Binsar Automobiles, 954-E, 100 Ft. Road, Babarpur Extn. Shahdara, Delhi-32.   The Workshop Manager Binsar Automobiles 954-E, 100 Ft. Road, Babarpur Extn. Shahdara, Delhi-32.	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

05.02.2016 08.05.2018 11.05.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that the complainant had purchased TVS Jupiter Scooter Chasis No. MD626BG41E1H50130 registration No. DL 5S AM 2120 from OP2 for a sum of Rs. 51,500/- only paid in cash by the complainant to OP2 vide cash receipt No. 27168 dated 07.09.2014. As per the owner’s manual the above vehicle was under warranty for two years from date of purchase or 24,000 Kms whichever is earlier and as per warranty terms and conditions, in case of defects, the OP1, OP2 and OP3 and OP2 being manufacturer and service centre were obliged to repair or replace free of cost all parts of vehicle excluding items of normal maintenance and normal service or wear and tear items. In addition to normal warranty, the complainant was also entitled to extended warranty of three years against the payment of Rs. 640/- made by the complainant to the OP1 on 08.09.2014 for the same. The complainant has further stated that he regularly got the said scooter serviced at the OP3 and lastly had produced the said vehicle for sixth paid service on 12.12.2015 by which date the said vehicle had completed just 15 months and 13,336 KM and had paid Rs. 620/- to OP3 towards the service charge and change of oil. At the time of delivery of the vehicle, OP3 as per clause 27 of the free service manual, had notified the complainant that the said vehicle was test driven and reported smooth functioning of all controls and parts thereof with no need of replacement of any part required neither by noticing any problem nor any periodic replacement needed. However, the complainant has stated that just 5 days after the said servicing, on 17.12.2015, the complainant was driving from his residence to Krishna Nagar when suddenly the rear wheel of the scooter got jammed and the vehicle ignition got switched off on its own and the complainant was unable to move it or start it and had to load it on a rickshaw and take to OP3 workshop where he was told that the clutch part of the vehicle had failed and it was a case of normal wear and tear and therefore repair was not covered under warranty and chargeable and gave an estimate of Rs. 3,000/- to the complainant towards replacement of 5-6 parts verbally but refused to give a written estimate. When the complainant questioned the OP3 on charging for a part which was covered under warranty, the OP3 officials misbehaved with the complainant and the sales manager of OP2 and one Mr. Sanchet Kumar for OP1 and Mr. Himanshu for OP3 intervened to dissipate the situation and Mr. Himanshu, workshop manager of OP3 issued a letter on 17.12.2015 stating that the clutch part for which the complainant is demanding repair under warranty for normal wear and tear is actually not covered under warranty and as per service manual, this part should be replaced after every 12,000 Kms whereas the scooter of the complainant had already covered 13,500 Kms and further informed the complainant that clutch part is replaceable on payment basis and not covered under warranty and approximate expenses for that work was Rs. 3,000/-. The complainant had opposed the unjustified ground of OPs to charge for the clutch repair on grounds that as per limitation of warranty in the owner’s manual, normal wear and tear items include parts that are insignificant to functioning of vehicle or petty items and clutch cannot be a normal wear and tear part for which the OPs were demanding Rs. 3,000/-. Further the complainant stated that as per the periodic maintenance schedule of owner’s manual the clutch shoe was required to be replaced after 24,000 Kms whereas the OP3 vide letter dated 17.12.2015 had given in writing to the complainant that clutch part was to be replaced after 12,000 Kms and was therefore trying to mislead the complainant by intentionally referring the clutch as a normal wear and tear part not covered under extended warranty. The complainant further stated that the vehicle was last serviced on 12.12.2015 when the OP3 had not informed the complainant of any such defect pertaining to clutch in the said vehicle and on the contrary had delivered the same to him certifying smooth functioning. The complainant also relied upon the extended warranty guide whereby clause 6 at page 6 under the Head Transmission were covered several clutch related parts under extended warranty despite which OP3 stated that clutch part was replaceable and not covered under warranty. Lastly the complainant had to get the said scooter repaired from outside on 04.01.2016 at Talwar Auto parts and got clutch shoe and clutch belt replaced for a total sum of Rs. 1,700/- paid in cash. Therefore the complainant vide the present complaint has prayed for issuance for directions to the OPs to pay a sum of Rs. 1,800/- (Rs. 1700- being cost of parts and 100/- for labor), Rs, 150/- towards carriage charges of scooter by rickshaw to workshop of OP3 by the complainant, Rs. 2,500/- towards loss of one day salary as the complainant could not go to office, Rs. 750/- towards cost of litigation, refund of Rs. 640/- paid by the complainant to the OP1 towards extended warranty and written apology by the OPs to the complainant for causing inconvenience and mental agony.

Complainant has filed purchase receipt of the scooter from OP2, service invoice towards sixth service @ Rs. 620/- paid to OP3, copy of service instructions, periodic maintenance schedule, letter dated 17.12.2015 to complainant from OP3, limitation of warranty and service schedule, notice dated 18.12.2015 from complainant to OPs and invoice No. 522 dated 04.01.2016 for Rs. 1700/- towards clutch shoe and clutch belt repair.

2. Notice was issued to the OPs. OP1 did not appear despite service on 04.03.2016 and was proceeded against ex-parte vide order dated 18.04.2016. OP2 and OP3 appeared on 16.03.2016 when they were handed over copy of complaint alongwith annexures for filing reply on 18.04.2016 however they did not file reply on the said date stating that they were ready to settle the matter and were therefore given last opportunity by Forum to file written statement on 09.05.2016 on which date too OP2 and OP3 did not file written statement and instead filed the same on 24.05.2016 which actually was worded as version filed by first opposite party. After a delay of 21 days whereas the maximum permissible limit of 45 days as per the statutory mandate under CPA expired on 03.05.2016 (from 16.03.2016 when the copy of complaint alongwith annexures was received by counsel of OP2 and OP3). The Hon’ble Supreme Court in New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage Pvt Ltd I (2016) CPJ 1(SC) = ix (2015) SLT 692 = Civil Appeal Nos. 10941-10942 of 2013 has opined that the statutory period of 45 days prescribed in the act for filing the written version cannot be extended under any circumstances, and the consumer fora would be well advised to be extra careful in recording its satisfaction regarding service of notice on the OP. The Hon’ble NCDRC in Country Colonisers Pvt Ltd vs Sunil Goel I (2017) CPJ 270 (NC) had also given its observations on the above mentioned landmark judgment passed by the Apex Court. Further the Hon’ble National Commission in Dr. Rabindra Nath Jana vs Alpana Bera Sasmal and Ors. II (2017) CPJ 170 (NC) has held that consumer fora has no jurisdiction to extend the period of the limitation of 30 days provided under section 13 (2) (a) of CPA beyond a further period of 15 days.  Therefore, in light of law settled and as per clear directions laid under section 13 (1) (a) read with section 13 (2) (a) of CPA, we strike the defence of the OP2 and OP3 off the records in the present case i.e. its written statement. 
3. Since we have already struck off the defence of OP1, we shall not deal with the rejoinder filed by the complainant to the written statement filed by OP1 (adopted by OP2 and OP3) in which the complainant had taken an objection OP1 was not entitled to file any reply, it being declared ex-parte on 18.04.2016. In any case the written statement was time barred.
4. Evidence by way of affidavit was filed by the complainant reiterating his grievance against the OPs and exhibiting the documentary evidence relied upon by the complainant in support of his complaint. The right of OPs to file evidence was close by this Forum vide order dated 29.11.2016 against which the OP2 had preferred Revision Petition No. 93/17 before Hon’ble SCDRC in which the Hon’ble SCDRC, vide order dated 31.10.2017 had dismissed the Revision Petition on grounds of delaying tactics adopted by OP2. In view of the defence of OPs already struck off, this order of Hon’ble State Commission further strengthens the ouster of defence of OPs in the present complaint.
5. Written arguments were filed by the complainant as well as OPs. The complainant reiterated his grievance in the written arguments and argued that as per owner’s manual issued by OP2 to the complainant and extended warranty paid for by the complainant with respect the said scooter, the OPs were under obligation to replace the defective clutch part with new part without any cost to the complainant for the part as well as labor as the clutch part under extended warranty and was replaceable after 24,000 Kms whereas the vehicle of the complainant had run 13,000 Kms when the defect therein arose in December 2015. The complainant further argued that other companies sell clutch shoe and clutch plate for approximately Rs. 450-550/- only for which the OPs were charging excessively and that OPs were trying to interpret the word “without limitation” in clause f of Extended Warranty Exclusion  to their convenience in extended warranty exclusion whereas clutch and clutch related parts were listed in serial no.6 under part transmission of extended warranty and were therefore covered under warranty. The complainant further argued that the mechanic who repaired the vehicle told that the defect occurred therein due to improper service by OP3 service engineers who left some part of clutch system loose resulting in vibration in clutch hub causing damage of clutch system and complainant further stated that OP2 and OP3 were misleading this Forum by offering settlement / compromise but made no efforts in that directions and wasted time of this Forum by prolonging the case which has resulted in harassment, mental agony and financial loss to the complainant who is a government employee and a grade A officer in Central Government Department who has to take leave from office to attend hearings resulting in loss of salary and prayed to this Forum for relief sought.
6. The OPs argued that the complainant has filed a false case as the vehicle of the complainant was properly serviced by employees of the OPs throughout the service period to this satisfaction of the complainant without charging any money. The OPs further argued that the said vehicle in question has run more than 13,500 Kms and the complainant still using it and therefore no defects can be alleged therein. The OPs further argued that the problems in the vehicle are wear and tear problem and do not fall under scheme of extended warranty and the present complaint is nothing but a tactic to pressurize the OPs to provide free service to the complainant and therefore deserves dismissal.
7. We have heard the arguments and rival contentions of both the parties and have thoroughly perused the documentary evidence placed on record by the complainant. The defence of OPs have already been struck off.

On perusal of documents it has been seen that the clutch and the clutch related parts were covered under extended warranty which extended warranty was admitted by the OPs to have been granted to the complainant with respect to the said vehicle on receipt of payment of Rs. 640/- on 07.09.2014 and the extended warranty started on 07.09.2016 and expiring on 06.09.2019 upto 56,000 Kms. Moreover, the periodic maintenance schedule of the OPs clearly stipulated that the clutch shoe was replaceable after 24,000 Kms and therefore the letter dated 17.12.2015 issued to the complainant by OP3 has been falsified on both grounds of the clutch not being covered under warranty as well as replaceable after 12,000 Kms in view of OPs own document pertaining to extended warranty and periodic maintenance schedule contrary to contents of the letter issued by OP3.

We therefore find force and merit in the arguments of the complainant since they are based entirely on the documents and policy of OPs themselves and not figment of imagination, self generated documents or hollow contention of the complainant for the sake of argument. Complainant has established his case in the present complaint of deficiency of service against the OPs acting contrary to their own warranty terms and conditions and periodic maintenance schedule and by not repairing / replacing the clutch despite the same being under extended warranty and the vehicle run less than the KMs prescribed for change of clutch and had to get the same repaired outside by incurring Rs. 1700/- for repair of clutch belt and clutch shoe. We therefore direct all the OPs jointly and severally to pay a sum of Rs. 1700/- to the complainant towards the cost of repair of vehicle alongwith Rs. 500/- towards cost of this complaint. Since the scooter is being used by the complainant and is within the extended warranty which is in operation till 06.09.2019, no refund is being directed there against. Let the order be complied within 30 days from the date of receipt of copy of this order.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.  File be consigned to record room.
10.   Announced on  11.05.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member