IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   24^th      Day of  January  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

     Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                                                    CC.65/17

Biju.S                                                                   :         Complainant

S/o Surendran

Chundodu Puthen Veedu

Maniyar P.O, Ashtamangalam, Punalur.

[By Adv.Bijeesh S.Pillai]

V/s

1. The Authorised Person                       :         Opposite parties

Mahindra and Mahindra Ltd.

5^th Floor,Dr.G.M.Bhosale Marg,

Worli, Mumbai-400018.

[By Adv.P.Sudhakaran& Adv.Raju K.Mathews]

     2.  The Authorised Person

T.V.Sundaram Iyengar&Sons Private Limited.

T.C/55/1337 to 1342, N.H.Neeramankara,

Kaimanam P.O, Thiruvananthapuram-695040.

3. The Branch Manager

T.V.Sundaram Iyengar and Sons Pvt.Ltd.

Branch Office, Door No.8/337

Musaliyar Complex, 2^nd Mile Stone, Kilikolloor P.O

Kollam-691004.

4. The Branch Manager

T.V.Sundaram Iyengar and Sons Pvt.Ltd.

Branch Office, Chemanthoor, Punalur-691305.

[By Adv.Sabor Alexander]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          1. This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.

          2. The averments in the complaint in short are as follows:-

          The complainant purchased a brand new Bolero 4WD Pickup manufactured by the 1^st opposite party from the 4^th opposite party which is the branch office of the 2^nd opposite party.  The complainant booked the above vehicle through 3^rd opposite party and the vehicle was delivered through the 4^th opposite party on its inaugural ceremony.  The said vehicle was purchased by the complainant for earning his livelihood.  The sale representative of the 3^rd opposite party made the complainant to believe that their new showroom is to be setup at Punalur, hence they provide several benefits to the purchasers for the above vehicle.  At that time the authorized persons of the 3^rd opposite party assured an offer of Rs.8500/- from the total price of vehicle in the eve of their inauguration of  Punalur showroom.  By believing the above representation and assurance the complainant booked the above vehicle on 18.07.2016 by paying an advance of  Rs.1000/- for which they issued an Order Form.  The 3^rd opposite party issued a Quotation/Performa Invoice to the complainant on 05.08.2016.  As per the said document the price of the vehicle is at Rs.6,38,275/-, Insurance amount is at Rs.28,325/-, Temporary registration charges is Rs.1250/-, 5 years Road Tax comes at Rs.16100/-, Registration charges is Rs.3000/-, yellow painting works charge is Rs.2800/- and the total of the above would come to  Rs.6,89,750/-.  The  complainant availed a vehicle loan of Rs.6,32,700/- from Syndicate bank, Tholicode Branch, Punalur.  On 11.08.2016 the above said bank issued a cheque of Rs.6,32,700/- in favour of T.V.Sundaram Iyengar & Sons Pvt.Ltd. payable at Kollam.  The complainant also paid an amount of  Rs.48500/- by cash on 11.08.2016 at the office of the 3^rd opposite party.  Thus a total amount of Rs.6,82,200/- was paid by the complainant as per invoice.  But on 17.08.2016 the 4^th opposite party issued a Delivery Note to the complainant stating that the vehicle cost comes only Rs.6,25,000/- and in the insurance certificate the actual amount paid toward insurance company is Rs.27,813/- and in the tax receipt the amount shown is  Rs.15,600/-.  The total amount in the invoice dated 05.08.2016 is only Rs.6,75,463/-.   But the opposite parties received an amount of Rs.6,82,200/- from the complainant.  Hence the opposite parties had unlawfully received an excess amount of Rs.6737/- from the complainant as per the invoice.  At the time of booking the 3^rd opposite party assured that they will provide a price discount of  Rs.8500/- in the eve of  inauguration of new showroom at Chemmanthoor, Punalur.  The complainant was the 1^st customer of the Punalur showroom inauguration.  But the opposite parties haven’t given any discount to the complainant.  Moreover they had extorted an additional amount of Rs.6737/- from the complainant.

          3. The complainant is a layman having lack of knowledge in the automotive filed.  The said vehicle was delivered on the eve of inauguration of 4^th opposite party.  At the time of delivery of the vehicle the complainant noticed that the vehicle has been used and its odometer shown the reading that 1000 KM and the hairs seen in the fresh rubber tyres were lost.  The above fact was informed to the 4^th opposite party and they replied that the vehicle run from the manufacturing unit by road.  After that the complainant got information from some reliable source that the vehicle was sold to some other person and later he return  the same to 3^rd opposite party.  After one month of the delivery of the said vehicle it happened to sustain some major repairs and that was cured by the 3^rd opposite party’s expenses.  Thereafter also the vehicle involved in frequent breakdowns.  Now the said vehicle run only 4000km and its two tyres were seen defective  and the overall performance of the said vehicle is so undesirable to use.  The service book of the said vehicle was delivered to the complainant only after three months of the delivery of the vehicle.  The opposite parties are  liable to repay the excess amount of  Rs.6737/-  unlawfully received by the 3^rd opposite party from the complainant and to disburse the agreed price discount of Rs.8500/- to the complainant and to replace the vehicle delivered to the complainant on 17.08.2016 with a brand new one or else an amount of Rs.2,00,000/- to the complainant as compensation for the novelty value of the brand new vehicle.  The complainant sent a lawyer notice to the opposite parties on 25.10.2016  seeking to repay the excess amount received from the complainant and to replace the vehicle delivered to the complainant with a brand new one.  The opposite parties 1 to 3 sent reply notice through advocate denying all the allegations raised by the complainant in his notice.  The acts of the opposite parties amounts to deficiency in service and unfair trade practice.  The grievances of the complainant is so far not redressed.  Hence the complaint.

          4. Opposite parties No.1 to 4 resisted the allegations in the complaint.  1^st opposite party filed version of its own and Opposite parties No.2 to 4 filed a joint version.  The main contentions of  opposite party No.1 to4 in the 2 set of versions are more or less same which in short are as follows.  The complaint is not maintainable either in law or on facts.  The opposite parties denies all the allegation stated in the complaint as incorrect.  According to them the complaint is bad for misjoinder of parties and is liable to be  dismissed inlimine on that count.  The complainant is not  a consumer as defined u/s 2(1)(d) of Consumer Protection Act 1986.  The transaction between the 1^st opposite party and opposite party No.2 to 4 are principal to principal basis.  Opposite parties No.2 to4 places bulk orders for vehicles and 1^st opposite party used to supply vehicle in large numbers and the 1^st opposite party manufacturer does not know about the ultimate buyer  of any vehicle.  The 1^st opposite party  never had  any transactions with the complainant and  therefore there is no privity of contract between the complainant and 1^st opposite party.  Therefore the complaint is to be dismissed inlimine. 

          5. However the opposite party No.1 to4 would admit that the complainant has purchased Bolero 4WD Pickup vehicle from the 2^nd opposite party and he is entitled to a warranty for 2 years for 60000 kms.  The allegation that an amount of Rs.6737/- was  unlawfully received as excess amount from the complainant is incorrect.

          6. In view of the above pleadings the points that arise for consideration are:-

1. Whether the complainant is a consumer as defined u/s 2(1)(d) of the Consumer Protection Act 1986?
2. Whether the complainant is entitled to get replace the vehicle or in the alternative entitled to get Rs.2,00,000/- as compensation for the novelty of a brand new vehicle?
3. Whether the complainant is entitled to get the interest, discount and costs as claimed in the complaint?
4. Whether the complainant is entitled to get compensation for mental agony, physical harassment and financial loss claimed to have been sustained by the complaint in the deal?
5. Relief  and costs.

7. Evidence on the side of  the complainant consists of the oral evidence of PW1 and Ext.P1 to P13 documents.  No oral evidence has been adduced on the side of the opposite parties  got marked Ext.D1 &D2 documents.

8.  Both sides have filed notes of arguments.

9.  Heard the counsel for the complainant.  Opposite parties counsel not turned up and argued on the merit of their contentions, though sufficient opportunity was granted. 

Point No.1

          10.  There is no dispute with regard to the fact that the complainant has purchased one Bolero 4WD Pickup van from the 3^rd opposite party and taken delivery of the vehicle from the newly inaugurated branch office of 2^nd opposite party and obtained Ext.P6 series delivery note dated 17.08.2016.  According to the opposite parties the complainant would not come within the purview of  consumer as defined u/s 2(1)(d) of the Consumer Protection Act.  In view of the materials available on record we find no merit in the above contention.  The complainant would allege in paragraph 2 of the complaint that he has purchased the vehicle for the purpose of  earning his livelihood. It is true that the complainant has not pleaded that he purchased the vehicle for earning his livelihood by self employment.  The evidence available on record would indicate that he is a driver by profession and he has been plying the vehicle for earning his livelihood.  On going through Ext.P10 lawyer notice it is clear that the intention of the complainant in purchasing the vehicle was to use it as a good vehicle for which he arranged to paint the vehicle with yellow colour, spending money from his pocket.  PW1 during cross examination has deposed that the said vehicle was used to transport articles belongs to the public and by utilizing the income he has been maintaining the vehicle  and also use the remaining for his own needs.  The vehicle involved is a  goods carriage vehicle permitted to use for hire or reward to the general public.  So the use permitted is commercial use which can be driven in public road only by a person holding valid license to drive the goods vehicle. PW1 would admit in page No.7 of the complaint that he was engaged in driving autorickshaw.  But he was not having any badge to drive commercial vehicle.  However the evidence of PW1 would go to show  that he has been driving the vehicle for earning his livelihood.  It is further to be pointed out that while driving the goods autorickshaw, Punalur police has registered petty and imposed fine for driving goods vehicle without having badge.  Receipt dated 03.01.2018 indicating the complainant has paid fine for driving the said vehicle without badge is  marked as Ext.P2.  As the complainant is having Ext.P1 driving license and also paid fine for driving the goods vehicle without badge.  Not having any badge itself would not indicate that he was not for earning his livelihood especially when he paid fine as per Ext.P2 fine receipt.  In the circumstances it is crystal clear that the complainant has been using the goods vehicle for earning his livelihood.  Therefore it is clear that even though the vehicle is a goods carriage vehicle the complainant has seen plying the same for earning his lively hood.  Hence the complainant would come within the purview of  consumer.  The point answered accordingly.

Point No.2

          11. The specific prayer (A relief) sought for in the complaint is to replace the vehicle Mahindra and Mahindra Bolero 4 WD pickup purchased by the complainant on 17.08.2016 with a brand new one or in the alternative to pay an amount of Rs.2,00,000/- as novelty value of the brand new vehicle. The complainant would claim replacement/substitution of the vehicle at a highly belated stage on two fold grounds.  The 1^st ground is that it was not a brand new vehicle at the time of delivery as it was already covered 1000 km as per the reading shown in odometer.  The 2^nd ground shown in the complaint is that after 1 month of the delivery of the said vehicle some major repairs occurred to the vehicle and that was cured by 3^rd opposite party’s expenses and thereafter the vehicle involved in frequent breakdowns.  However the complainant would admit that the vehicle run 4000 kms (as on the date of filing the complaint) and the two tyres were seen defective and overall performance of the said vehicle is so undesirable to use.  However the complainant has not pleaded  and proved what were the defects for the vehicle including tyres whether there was any manufacturing defect for the vehicle so as to claim substitution of a new vehicle.  Anyhow it is clear that the vehicle has been in use at the time of filing the complaint and thereafter.

          12. Though the complainant would claim that at the time of delivery of the vehicle he noticed that it was a used vehicle and odometer  found  reading 1000km  and the hairs seen in the fresh rubber tyres were lost.  However the complainant has not produced any reliable materials to prove that the odometer reading was 1000 as on the date of delivery of the vehicle.  It is to be pointed out that Ext.D2 document would clearly indicate that the odometer reading noted as on the date of delivery is  only 216 km.  It is clear from the averments in paragraph 8 itself that he has brought  the above fact to the 4^th opposite party then and there and they replied  that the vehicle came running from manufacturing unit by road.  If that be so there is every chance of odometer showing that some reading and also disappearing the freshness of the tyres as contented by the opposite party.

          13. Though the complainant would allege in paragraph 8 of the complaint that  he got information from some reliable  source that previously the vehicle was sold to some other person and later that purchaser returned  the same to the 3^rd opposite party.  The opposite parties 1 to 4 stoutly denied the above allegation and pointed out that there is no chance of delivering the vehicle to some other person prior to the delivery of the same to the complaint.

          14.  Ext.P9 series MMS Job Sheet would indicate that on 01.08.2017 ie, after 1 year and 2 weeks the odometer reading is shown as 9254 km.  RO bill-tax invoice dated 18.07.18 which is after 2 years of the date of purchase.  The odometer reading is shown as 15628 km.  The above odometer reading would clearly indicate that the complainant has been continuously using  the vehicle.

15. It is true that the hair of the tyres was lost at the time of delivering the vehicle to him.  Even as per Ext.D2 document  the vehicle has run 216 kms which is sufficient enough for not having the hairs of the tyres.  The pre delivery test and the running of the vehicle from the yard of the authorised dealer to the retail dealer at via Kollam, Punalur will definitely cause the loss of hairs of the tyres.  There is absolutely no evidence to show that the reading of the odometer was 1000kms as on the date of delivery.  Generally in the document given at the time of delivering the vehicle the odometer reading is being shown by the agency who sells it and there is every chance of having such a document in the hands of the  complainant.  But he has not produced the same.  Though the complainant would claim that he was noticed the odometer reading as 1000km at the time of taking delivery he has taken the same by fully knowing the fact that it has already run 1000kms.  Now the complainant has turned round and would allege that the vehicle was already sold to somebody else and it is a second sale to him.  There is no chance of  such an earlier sale  according to the opposite parties as once  the vehicle is sold and delivered to a person a  temporary registration is mandatory to ply the same through public road and from the year 2012 onwards all entries relating to temporary registration are done online.  In such circumstances a vehicle once got temporary registration cannot obtain a temporary registration again.  But in this case it is clear that the vehicle purchased by the complainant was obtained temporary registration after it was sold to the complainant. In view of the materials discussed above it is clear that there is no merit in the claim of the complainant that the vehicle purchased by him is a second hand vehicle which has already run 1000km as on the date of purchasing the vehicle by him.   

          16.  Yet another allegation of the complainant is that after one month of the delivery of the vehicle there occurred some major repair work.  But what was the defect is not pleaded and proved.  However even according to the complainant the defects were rectified by 3^rd opposite party free of costs.  According to the complainant there after the vehicle involved in frequent breakdown and hence it was undesirable to use.  What was the reason for breakdown nor the date/dates of breakdown etc. are not specifically pleaded and proved.  However Ext.P9 series documents produced by the complainant would clearly indicate that the vehicle had run 15628 km within 2 years and in such circumstances there is every chance of having occurring some minor repair works due to wear and tear especially when the vehicle is a goods carriage vehicle.  It is also brought out in evidence that opposite parties No.2 to 4 have promptly attended to all his complaints and repaired the vehicle and made it as road worthy. Hence there is no deficiency in service on account of not carrying out the repair works within the warranty period.

          17.  The main grievance of the complainant is that though the complainant intended to purchase a new vehicle the 3^rd opposite party has delivered a used vehicle at the cost of a brand new one which is unfair trade practice on the part of the opposite parties.  However the complainant in the notes of argument in paragraph 17  has not pressed the replacement of a new vehicle  by taking back the old one as it is impracticable.  The complainant would press only the alternative prayer which is compensation for novelty value.  But in view of the reasons stated under paragraph 12 to 16 above we hold that the vehicle sought to the complainant was a brand new vehicle and the odometer reading found was 216 km only and not 1000km as claimed by the complainant.  Admittedly the vehicle was purchased on 17.08.2016.  It is brought out in evidence that he was using the vehicle throughout till the date of filing the complaint on 16.03.2017 after using the vehicle for more than 6 months.  Now about 5 years have  elapsed after the date of purchase.  Even now  the vehicle is admittedly in the possession and use of the complainant.  In the circumstances it is highly unfair to replace the vehicle at present even if it is proved that at the time of delivery of the vehicle the odometer reading was 1000km  and therefore it was not a brand new vehicle.  We find no merit in the above claim of the complainant and he is not entitled to get the vehicle replaced nor any compensation for novelty value.  The point answered against the complainant accordingly.

Point No.3

18. The complainant further claims to return Rs.6737/- received in excess of the price shown in the quotation and also to pay the agreed discount of Rs.8500/-.  According to the complainant as per Ext.P3 order form he booked a brand new Bolero 4WD pickup goods carriage vehicle by attracting the offer made by the 3^rd opposite party and  later on 05.08.2016 the 3^rd opposite party has issued Ext.P4 quotation/Performa invoice for Rs.6,89,750/- indicating the price of the above vehicle.  Out of which the value of the vehicle shown was  Rs.6,38,275/-.  The remaining amount consists of insurance charge Rs.28325/-, temporary registration charges Rs.3000/- and cost of yellow colour painting works Rs.2800/-.  The complainant on 11.08.2016 issued cheque for Rs.6,32,700/- in favour of TVS Pvt.Ltd. payable and on the same day paid Rs.48500/- by cash at the office  of the 3^rd opposite party including advance Rs.1000/-.  The complainant altogether paid Rs.6,82,200/- as per Ext.P2 invoice.  But on 17.08.2016 the 4^th opposite party issued Ext.P6 series delivery note to the complainant indicating costs Rs.6,25,000/- only and the actual amount shown as insurance charge in Ext.P12 insurance certificate is only Rs.27,813/- and  road tax is only Rs.14287/-.  But the opposite parties received an amount of Rs.6,82,200/- and thereby caused an unlawful loss of  Rs.6737/- (6,89,780-6,82,200) to the complainant.  The difference in tax and insurance of the vehicle amounts to Rs.6737/-.  The further allegation of the complainant is that at the time of  booking the vehicle the 3^rd opposite party assured that they will provide a price discount of Rs.8500/- due to the inauguration of new showroom at Chemmanthoor, Punalur.   But the opposite parties have not given any such discount to the complainant, though he obtained Ext.P6 delivery note  from 4^th opposite party showroom at Punalur.

19. In view of the materials discussed above we are of the view that the complainant is entitled to get Rs.6737/- being the excess amount collected towards tax and insurance in respect of the vehicle purchased by the complainant and also the price discount of  Rs.8500/- assured by the 3^rd opposite party while purchasing the vehicle on the inauguration of the showroom at Chemmanthoor, Punalur with reasonable interest.  The point answered accordingly.

Point No.4

          20.  In view of the materials discussed above it is crystal clear that the 3^rd and 4^th opposite party have collected excess charge towards tax and insurance and also not paid the inaugural  discount offered by the 3^rd opposite party.  Therefore the complainant has sustained much mental agony apart from financial loss.  Hence the complainant is entitled to get reasonable  compensation from 3^rd and 4^th opposite party for their malfeasance, misfeasance and nonfeasance.  Point answered accordingly.

Point No.5

          21. It is brought out in evidence that the 3^rd and 4^th opposite parties had sold the vehicle to the complainant and collected the sale proceeds including excess amount towards tax and insurance and also failed to pay the inaugural offer made by the 3^rd opposite party.  There is no materials to show that the other opposite party No,1 being  the manufacturing company, opposite party No.2 whole sale dealer of the vehicle at the state level have any knowledge regarding the misfeasance, malfeasance and nonfeasance of the 3^rd and 4^th opposite parties nor there is any evidence to show that the 3^rd and 4^th opposite parties have collected excess tax and insurance charges and made inaugural offer with the consent and knowledge of the opposite parties No.1&2. No manufacturing defect is alleged and proved in this case. In the circumstances opposite party No.1&2 cannot be saddled with the responsibility of repayment of excess amount collected towards insurance and tax or the nonpayment of  inaugural offer made by opposite party No.3&4 and have also any express or implied role in causing any mental agony to the complainant.  Therefore opposite party No.1&2 stands exonerated from liability.

          In the result complaint stands allowed in part in the following terms.

1. The prayer to substitute a new vehicle or the alternative prayer to pay Rs.2,00,000/- as compensation for novelty value of  the vehicle stands dismissed.
2. The 3^rd and 4^th opposite parties are directed to pay Rs.6737/- being the excess amount collected by way of tax and insurance and Rs.8500/- being the price discount offered in connection with inauguration of 4^th opposite party  showroom at Chemmanthoor, Punalur with interest @ 6% p.a from the date of complaint.
3. The 3^rd and 4^th opposite parties are also directed to pay Rs.10,000/- as compensation for mental agony sustained by the complainant with interest @6% p.a.
4. The 3^rd  and 4^th  opposite parties are directed to pay costs Rs.5000/- to the complainant.

The 3^rd and 4^th opposite parties are  directed to comply with the direction number (b) to (d) within 45 days from today failing which the complainant is entitled to recover Rs.6737+8500+10000=25237/-  with interest @9% p.a along with costs ordered from the 3^rd and 4^th opposite parties jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  24^th  day of  January  2022.

E.M.Muhammed Ibrahim:Sd/-

          S.Sandhya Rani:Sd/

          Forwarded/by Order

           Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Biju.S

Documents marked for the  complainant

Ext P1 :       True copy of driving licence.

Ext P2:        Petty imposed by Punalur  SI for Rs.500/-

Ext.P3 :       Order form dated 18.07.2016.

Ext.P4:        Copy of Quotation/Performa invoice dated 05.08.2016.

Ext.P5:        Copy of DD dated 11.08.2016 for Rs.6,32,700/-.

Ext.P6 series:   Delivery note(2 in Nos.)

Ext.P7 :       Form 19(Register to be maintained by the holder of trade certificate dated 17.08.2016).

Ext.P8:         Acknowledgment copy

Ext.P9 series :       MMS job sheet, RO bill and Manual repair order form.  

Ext.P10:       Lawyer notice.

Ext.P11:       Postal receipts.

Ext.P12:      Copy of motor insurance certificate cum policy schedule.

Ext.P13:      Copy of RC Book.

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1:       Tax invoice.

Ext.D2:       Copy of transaction details(Mahindra Dealer world)

                                                                        E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

Senior Superintendent