Date of filing: 09.07.2013
Date of Disposal: 19.01.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Kumari Y.H.Prameela Reddy, M.L., LL.B., President
Sri S.Niranjan Babu, B.A., B.L., Male Member
Smt. M.Sreelatha, B.A., B.L., Lady Member
Monday, the 19th day of January, 2015
C.C.No.57/2014
Between:
Ambakar Nanjunda Rao,
S/o A.N.Vital Rao,
H.No.21-6-58,
S.Sadlapalli Village,
Hindupur Mandal,
Ananthapuramu District. … Complainant.
Vs.
1. Authorized Signatory,
Meru Automobiles Private Limited,
N.H.7 Pamurai Village, Vadiampet (P),
Anantapur.
2. Authorized Signatory,
Sree Venkateswara Motors,
Authorized For TATA Motors Service Station,
D.No.351-2, Sri Ramulaiah Colony, N.H.7,
Penukonda,
Ananthapuramu District.
3. Authorized Signatory,
Customer Assistance Centre (Commercial Vehicles),
TATA Motors Limited, 20th Floor, Tower-2,
Senapathi Bapat Marg,
Mumbai – 400 013,
Maharashtra. …. Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri H.Nageswara Rao, Advocate for the complainant and Sri B. Sanjay, Advocate for the 1st opposite party and Sri A.Raghavendra, Advocate for the 2nd opposite party and Sri D.Shyam Prasad, Advocate for the 3rd Opposite Party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Smt. M.Sreelatha, B.A., B.L., Lady Member: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite part No.3 to replace the Gear Box and fix up new Gear Box (Approximately Gear Box costs is Rs.35,000/-) further ordered to pay loss of earning of Rs.60,000/- to the complainant and further award costs of Rs.2,000/- being litigation expenses.
2. The brief facts of the complaint are that: - The complainant is the permanent resident of Hindupur town and the 1st opposite party is the Authorized Dealer for commercial vehicles of TATA Motors and the 2nd opposite party is the Authorized Service station for the TATA Motors and the 3rd opposite party is the main service person cum manufacturer of the vehicle. The complainant purchased TATA ACE EX vehicle from the 1st opposite party dt.30.07.2012 and the value of the vehicle is Rs.3,45,687/-. The complainant registered the said vehicle bearing No.AP-02-Y-4889 and the same vehicle was financed by TATA Motors Finance Limited. On 06.11.2012 the complainant given the said vehicle for the first service and general check up to the 2nd opposite party as the 2nd opposite party is the service centre of 3rd opposite party and the vehicle runned upto 10,164 KMs and the complainant paid an amount of Rs.1396 towards service charges. On 07.01.2013 the complainant given the said vehicle for second service at 19,666 KMs and the 2nd opposite party got repaired the vehicle and charged a sum of Rs.1877/- and delivered the vehicle to the complainant. After second service the vehicle started giving trouble i.e., Gear Box problem then the complainant given the said vehicle to 2nd opposite party to rectify the problem in the Gear Box and given a Job Card No.694 dt.04.02.2013. The complainant received the said vehicle only after paying of Rs.1020/- towards charges. The said vehicle started giving same problem at 29686 KMs. The complainant given the vehicle to 2nd opposite party, the 2nd opposite party asked 10 days’ time for rectify the problem. The complainant paid an amount of Rs.14,012/- under bill No.819,820,821 dt.06.03.2013 & 11.03.2013. The complainant took the vehicle and observed that the same problem in the Gear Box then the complainant called to customer care service and the 3rd opposite party received the complaint from the complainant under complaint No.18784906101 dt.27.04.2013 and another complaint No.18808098804 dt.29.04.2013 and as per directions of 3rd opposite party the complainant given the vehicle to 2nd opposite party on 24.04.2013 for service and delivered the vehicle on 29.04.2013 after collecting an amount of Rs.850/- towards service charges. After that the vehicle started giving the same problem only after 35 KMs running then the complainant given the said vehicle for service on 30.04.2013 and the complainant received the call from the 2nd opposite party to take delivery of car, but the complainant is not inclined to take delivery of the vehicle because the problem is not rectified which occurred in Gear Box. The complainant got issued legal notice to the opposite parties 1 & 2 and the 2nd opposite party gave a reply with false allegations and orally informed that the 3rd opposite party is the manufacturer and the 3rd opposite party is the right person to change the Gear Box to the vehicle and the 2nd opposite party says that he is not liable to make good loss of the earnings of Rs.80,000/- occurred to the complainant. The complainant sustained business loss of Rs.80,000/- from the date of purchase of vehicle from the opposite parties till this date as the complainant running milk business from Hindupur to Puttaparthy Ashram daily and the 3rd opposite party is liable to make good loss of Rs.1000/- per day while the said vehicle lying with the 2nd opposite party. The complainant submitted that the 3rd opposite party given warranty to the vehicle as per warranty terms it clearly mentioned in the operator service book delivered to the complainant that as per warranty the TATA ACE vehicles and parts thereof manufactured by us to be free from defect in material and workmanship, subject to the following conditions. The warranty for the vehicle shall be for a period of one year from the date of sale of the vehicle or 36,000 KMs it is running which were occurring earlier. As per the warranty the vehicle purchased on 30.07.2012 and the defect in Gear Box occurred within the warranty period and the complainant is entitled loss of earning and also the Gear Box to the vehicle. Hence, it is prayed that the Hon’ble Forum may be pleased to order the 3rd opposite party to replace the Gear Box and fix up new Gear Box and further ordered to pay loss of earning of Rs.60,000/- and award costs of Rs.2,000/-.
3. The 1st opposite party filed counter stating that the complaint is not maintainable either in law or on fact of the case. All the allegations made in paras 1 t to 6 are does not attract against the 1st opposite party and the same was mentioned by the complainant in his complaint in para No.7. The 1st opposite party stated that the opposite parties 1 & 2 are appointed by the 3rd opposite party and the opposite parties 1 & 2 different dealers and they are running service stations with their men and equipment. The 1st opposite party submitted that the complainant never approached the 1st opposite party for any services as on to day. Entire services made by others and hence the question of liability against the 1st opposite party does not arise. The 1st opposite party prayed this Forum to dismiss the complaint with costs.
4. The 2nd opposite party filed counter stating that the para No.1 of complaint is true and correct and para No.2 of the complaint about the purchase of vehicle from the 1st opposite party on 30.07.2012 for a sum of Rs.3,45,687/- later registered the vehicle bearing No. AP-02-Y-4889 may be true. The 2nd opposite party stated that as per para No.3 the complainant given the vehicle for the first service on 06.11.2012 and the 2nd opposite party is the authorized person to do service to the TATA Motors and vehicle runned upto 10,164 KMs and later the complainant given the said vehicle for second service to 2nd opposite party on 07.01.2013 at 19,666 KMs and charged Rs.18,777/- from the complainant and delivered the same to the complainant is true. The allegation in para No.4 of the complainant that after second service the vehicle starting giving trouble in Gear Box problem and the complainant given the said vehicle to 2nd opposite party to set right the Gear Box problem and given the Job card No.694 dt.04.02.2013 and received the delivery of the vehicle on the same day is not admitted. The 2nd service is not correct the original date of second service is 02.02.2013 but not 04.02.2014. The 2nd opposite party stated that when the problem in the Gear Box, the Gear Box opened by the employees of 2nd opposite party and found defects and the same note down in work order No.694 dt.02.02.2013 as Gear Box wheels seized due to no oil in the Gear Box, Gear wheel teeth were broken synchrocine and kit also gone. After knowing the said facts the complainant decided to change the Gear Box assly at second hand market in Bangalore and signed the work order. The complainant given the vehicle to 2nd opposite party set right the problem dt.05.03.2013 and asked 10 days’ time to rectify the problem under Job Card No.772 and collecting an amount of Rs.14,012/- from the complainant under bill Nos. 819,820 & 821 dt.06.03.2013, 11.03.2013 and 15.03.2013 and the 2nd opposite party delivered the vehicle to the complainant is not correct and the complainant is put to strict proof of the same. The 2nd opposite party stated that the complainant himself admitted in the work order that they run the vehicle without Gear Box oil and the same counter signed by the complainant clearly shows that the repairs happened only due to rash negligent and inexperience driving the Gear Box spoiled and the admission of the complaint in work order clearly shows that their negligence in maintaining the vehicle run by them without pouring the Gear Box oil and the same clinches the case on the part of the complainant. The 2nd opposite party stated that when the problem was not rectified again the complainant given the vehicle to 2nd opposite party under job card No.058 dt.24.04.2013 and they have charged Rs.850/- and deliver the vehicle on the same day. After taking the same the said vehicle runs only 35 KMs and starting the same problem in Gear Box and the vehicle was given for service on 03.04.2013 is not admitted. The 2nd opposite party further denied that the complainant is not inclined to take delivery of the vehicle because the 2nd opposite party has not set right the problem and they are required to fix up new Gear Box then only the complainant will take delivery of the vehicle is baseless and same is put to strict proof of the same . In this regard the complainant issued a legal notice to the opposite parties 1 & 2 and they replied with proper reasons and in the notice they have clearly mentioned that the vehicle met with an accident after second service and the Gear Box spoil in the said accident and the said facts mentioned in the job card which is counter singed by the complainant and the 2nd opposite party stated that whenever any accident occurs the warrantee period given by the 3rd opposite party will automatically lapses as per the terms and conditions on this ground the complaint is liable to be dismissed . The complainant filed the present complaint unnecessarily to harass the 2nd opposite part. As there is no cause of action and there is no negligence or delay on the part of this opposite party and the alleged problems occurred to the vehicle are only with the rash, negligent driving by unqualified drivers and for that the complainant cannot claim damages and liable to be dismissed.
5. Counter filed by the 3rd opposite party stated that the 3rd opposite party is a company duly manufacturer of commercial vehicles and passenger cars and the 1st opposite party is the authorized dealer of the 3rd opposite party and the 2nd opposite party is the authorized service centre of 3rd opposite party. The 3rd opposite party submitted that the 3rd opposite party company is duly incorporated under the provisions of the companies Act, 1913. The 3rd opposite party submitted that the cars and the vehicles manufactured by the opposite party pass through stringent quality checks and road trials before the actual commercial production starts and the cars and vehicles are marked only after being approved by the Automotive Research Association of India (ARAI). The 3rd opposite party submitted that the customers of all cars manufactured by the opposite party are provided services through a large network of around 119 authorized dealers, 245 TATA Authorized Service centers (TASC), 219 TATA Authorized Service Points (TASP) and 222 TATA Authorized Service Outlets (TASO) workshops. The 3rd opposite party as a matter of business practice, does not deal with any customer for sale of the new car or vehicle, hence cannot comment what transpired between the complainant and the 1st opposite party. The 3rd opposite party stated that the complainant himself approached the 1st opposite party and intended to purchase the vehicle and enquired about the same. It is stated that all the vehicle manufactured by the opposite party undergo strict quality checks certified and thereafter dispatched to the dealers across the country. The 3rd opposite party submitted that the vehicle sold at the dealership point also undergoes pre-delivery inspection (PDI) and we satisfied with the condition and performance of the vehicle, it is sold to the consumers and in this case also, the said process ought to have followed by the 1st opposite party. The 3rd opposite party is not having any principal agent relationship with the 1st opposite party. Hence the 3rd opposite party cannot held liable for any act or omission. The 3rd opposite party submitted that on 12.10.2012, the complainant had brought the vehicle to the 2nd opposite party with the vehicle having been driven 5131 KMs for accelerator cable being jammed. The vehicle was repaired by removing and refitting the accelerator cables apart from the brake oil being replaced. The vehicle was returned to the complainant after rectifying the problem in the vehicle. Thereafter on 06.11.2012 the complainant had brought the vehicle to the 2nd opposite party with the vehicle having been driven 10164 KMs for the first free service and for changing engine. The job card was issued by the 2nd opposite party on 09.11.2012 is herewith. The vehicle was serviced and the engine oil was changed apart from the fuel filter element, assy oil filter being replaced. The complainant had to pay Rs.1,396/- towards parts which were not received under warranty. The 3rd opposite party submitted that the complainant had on 08.01.2013 brought the vehicle to 2nd opposite party with the vehicle having been driven 2066 KMs for second scheduled free service along with the complaint of the hub greasing/bearing failures. The 2nd opposite party has issued a job card dt.08.01.2013 to the complainant the said vehicle was serviced and the engine oil was changed, apart from the fuel filter element, assy oil filter being replaced. The vehicle was returned to the complainant after the repairs and servicing. The complainant had to pay Rs.1807/- towards parts which were not covered under warranty. The 3rd opposite party submitted that the complainant had on 18.03.2013 brought the vehicle to 2nd opposite party with the vehicle having been driven 29686 KMs for third scheduled free service along with the complaint of changing oil and gear shifting problems. A copy of the job card dt.18.03.2013 issued by the 2nd opposite party, the complainant had to pay Rs.13,078/- towards parts which were replaced were not covered under warranty. Thereafter the complainant had on 29.04.2013 brought the vehicle to 2nd opposite party with the vehicle having been driven 33215 KMs for the complaint of Gear getting stuck. A copy of the job card issued to the complainant on 29.04.2013 the vehicle was repaired by gb overhauling for which the complainant did not have pay anything towards the repairs and service as per the Tax invoice dt.29.04.2013. Then on 09.05.2013 the complainant brought the vehicle to 2nd opposite party with the vehicle having been driven 33269 KMs for the complaint of gear shifting difficulty and gear getting stuck. The vehicle was repaired to gb overhauling, replacement of synchro kit(1/2 speed), w/o synchrocone, synchrocone ½ speed, ball end b13 and oil seal- main shaft. The 3rd opposite party submitted that the vehicle has been admittedly used for commercial purpose in order to generate profit. As such the complainant cannot claim the status of a consumer under the consumer protection Act,1986 and is not entitled for any relief from this Forum and the complainant has failed to produce any documentary proof along with the complaint to prove that the car in question is being used for his livelihood. Hence the complaint is liable to be dismissed as there is no having proof for being the consumer. The 3rd opposite party submitted that the vehicle in question had a warranty upto one year from the purchase of the vehicle or 36000 KMs. Which is earlier. Therefore the vehicle purchased by the complainant was under warranty till it completed 36,000 KMs the vehicle repaired and there is no problem with the vehicle. There is no cause of action ever arose in favour of the complainant or against the opposite parties. This Forum has no jurisdiction to adjudicate the complaint and the complaint is liable to be dismissed with costs. The 3rd opposite party submitted that the complainant cannot have any grievance against the 3rd opposite party and the complainant has failed to prove any cause of action or prima facie case in the complaint against this opposite party. Therefore this opposite party are fit to be discharged from the proceedings in the absence of any prima facie case. Hence prayed to this Hon’ble Forum that the complaint of the complainant be dismissed with costs.
6. Hear both sides.
7. The counsel for the complainant filed written arguments and stated that the complainant purchased TATA ACE EX vehicle from the 1st opposite party on 30.07.2012 for a sum of Rs.3,45,687/- with the financial assistance of TATA Motors finance. The counsel for the complainant sated in the written arguments that on 06.11.2012 the complainant given the said vehicle for first service and general checkup to 2nd opposite party as the 2nd opposite party is the authorized service to TATA Motors and runned upto 10,164 KMs and paid Rs.1396/- for service and later the 2nd service on 07.01.2013 at 19,666 KMs and charged Rs.1877/- from the complainant and delivered the same. The counsel for the complainant stated that after second service the complainant noticed the problem in the Gear Box and given the said vehicle to 2nd opposite party on 04.02.2013 for rectification of the problem and the same was delivered by the 2nd opposite party. Again the same problem occurred 29686 KMs and the given the vehicle to 2nd opposite party on 05.03.2013 and the 2nd opposite party asked 10 days’ time to set right problem. The 2nd opposite party delivered the vehicle on 15.03.2013 but after running of 2500 KMs the same problem occurred then the complainant called to customer care centre on 27.04.22013 and 29.04.2013. The complainant given the vehicle to 2nd opposite party for service under job car No.58 dt.24.04.2013 and the 2nd opposite party deliver the vehicle on 29.04.2013 after taking the vehicle he runs only 35 KMs once again started the same problem in the Gear Box. Then the complainant resist to take the delivery of the car as the 2nd opposite party not set right the problem and they required new Gear Box as the Gear Box supplied by the 3rd opposite party is defective one and the 3rd opposite party is liable to change the new Gear Box and also liable to pay an amount of Rs.60,000/- as the complainant sustained loss due to the defective Gear Box and also requested to grant costs.
8. The counsel for the 2nd opposite party argued that the complainant is not properly maintaining the vehicle and the service rendered by the 2nd opposite party is not negligible and they served the service at most satisfaction of the complainant. The 2nd opposite party argued that as per the job cards the complainant is no experience in running the car and the complainant not used Gear Box oil and the same admitted by him in the job cards that he run the vehicle without oil in the Gear Box. The 2nd opposite party argued that the vehicle met with an accident in the accident the Gear Box was spoiled and the employees of 2nd opposite party disclosed the same to the complainant about the changing of new Gear Box. Then the complainant expressed his unwillingness and informed that he will get second hand Gear Box at Bangalore and no need of new Gear Box. Hence there is no liability on the part of the 2nd opposite party as they done this service on their best level and Gear Box spoiled only due to improper maintenance by the complainant.
9. The counsel for the 3rd opposite party argued that the complainant is not a consumer under the definition of consumer as the complainant used the vehicle for commercial purpose and the same was mentioned in the complaint that the complainant running milk business and he sustained loss of Rs.60,000/- due to the problem in the Gear Box. It clearly shows that the complainant used the vehicle for commercial purpose, hence he is not a consumer. The 3rd opposite party also argued that the 2nd opposite party served the services to the complainant whenever he went to service at service point of 2nd opposite party. The 3rd opposite party argued that the complainant took second free service and he paid sum amounts at the time of services as the complainant asked extra fitting at the time of service. Then only the opposite party charged amount for extra fittings which were not within warranty parts. The 3rd opposite party argued that the complainant filed the present complaint only to get unlawful gain by saying that there is a manufacturing defect in Gear Box by suppressing the facts before the Forum. The 3rd opposite party stated that the complainant took third service with the 2nd opposite party on 18.03.2013 with vehicle having been driven 29686 KMs for 3rd schedule free services along with the complaint of changing oil and gear shifting problem. Then the 3rd opposite party charged an amount of Rs.13,078/- towards parts which were replaced were not covered under warranty. The complainant again came to 2nd opposite party on 29.04.2013 with a problem that Gear getting struck the 2nd opposite party attended the vehicle and was repaired by gb over oiling for which the complainant did not have pay anything towards the repairs. Then on 09.05.2013 the complainant brought the vehicle to 2nd opposite party having been driven 33269 KMs with a complaint of Gear shifting difficulty and gear getting struck the vehicle was repaired and delivered to the complainant on 09.05.2013. The 3rd opposite party argued that the vehicle at a warranty upto one year from the purchase of the vehicle or 36,000 KMs whichever is earlier. Therefore the vehicle purchased by the complainant was not warranty it is completed 36,000 KMs. The 3rd opposite party argued that the complainant approached this Forum by suppressing the facts and with an ulterior motive to get gain from the opposite parties. Hence the complaint is liable to be dismissed with costs.
10. Basing on the above pleadings, the following points that arise for consideration are:-
i) Whether the complainant is comes under the definition of consumer?
ii) Whether there is any manufacturing defect in Gear Box?
iii) To what relief?
11. In order to prove the case of the complainant, the complainant evidence on affidavit of the complainant has been filed and marked Ex.A1 to A5 documents. On behalf of the 2nd opposite party, the 2nd opposite party filed evidence on affidavit and marked Ex.B1 & B2 documents. On behalf of the 3rd opposite party, the 3rd opposite party filed evidence on affidavit and marked Ex.B3 to B12 documents.
12. The counsel for 3rd opposite party is stressing on the point that the complainant is not a comes under the definition of Consumer as per section 2 (d) of Consumer Protection Act, as the complainant used the disputed vehicle for commercial purpose when we go through the document of both parties and evidences. It is clear that the complainant purchased TATA ACE car from 3rd opposite party on 30.07.2012 for a sum of Rs.3,45,678/- with financial assistance of TATA Motors. As per terms and conditions the complainant had given his car for first service on 06.11.2012 and the second service on 07.01.2013 as per Ex.B1 to B3 and B6. The 3rd opposite party clearly mentioned that in the warranty that if any parts were replace which were not come under the warranty the parts will be charged at the costs of the complainant. So the complainant changed some parts at the time of free service and the 2nd opposite party collected charges for the same as per warranty.
13. The counsel for the complainant argued that after second service there is a problem in Gear Box and the complainant took the vehicle for repair of 2nd opposite party service centre on 05.03.2013 the same was delivered by 2nd opposite party under job card No.772 the case of the complainant that the problem in Gear Box was not rectified and it repeatedly giving trouble. Then the complainant given the vehicle with the 2nd opposite party for repairs under different job cards under Ex.A2 and the 2nd opposite party did not repair in the Gear Box, the complainant facing the same problem till 30.04.2013 then he informed the same to 3rd opposite party who is the manufacturer. But the complainant has not filed any document to show that he informed about the problem in Gear Box to 3rd opposite party on 27.04.2013 and 29.04.2013.
14. The 2nd opposite party counsel stated that when the complainant approached the 2nd opposite party with a Gear Box problem the employees of 2nd opposite party opened the Gear Box and found that the Gear Box was spoiled and the same was mentioned in work order dt.02.02.2013 under Ex.B2. We go through Ex.B2 document it was mentioned that there was a problem in Gear Box wheels seized due to no oil in the Gear Box, Gear wheel teeth were broken, synchrocine and kit also gone. After knowing it the complainant decided to change Gear Box at second hand market in Bangalore it clearly shows that the complainant took the services from 2nd opposite party. The counsel for 3rd opposite party relied a decision reported in 1996 Supreme Court 26810 between M/s Cheema Engineering Services Vs. Rajan Singh when the vehicle used for commercial purpose the burden is on the complainant to prove that the vehicle is used merely for livelihood but not for commercial purpose is totally is on the complainant to prove that the vehicle was used for his livelihood. If he fails to prove that the vehicle is used for livelihood then automatically admitted that the vehicle used for commercial purpose. When we go through the order of the apex court the Hon’ble Supreme Court stated that the burden is on the complainant to prove that the vehicle used for his livelihood and used to live on the earning of that amount by filing cogent evidence in the above case the Hon’ble Supreme Court remanded the matter to record evidence as per law to prove that the complainant used the machinery for his livelihood and not for commercial purpose. The facts of the above case and facts of the present case are not similar. Move over in the above case the Hon’ble apex court remanded the matter to decide about the usage of the vehicle by the complainant. But there is land mark judgment of apex court 1996 Supreme Court reported in (i) CPJ324 (National Commission) between Amjrey Ambience Limited Vs. Alpha Radio’s: wherein the Hon’ble Supreme Court held that: if there is any Mal function during the period of warranty when the manufacture had under taken to keep the machine in good working when it sold for commercial purpose the purchaser shall certainly be a consumer under 2 (1) (d) in respect of service rendered or to be rendered by sellers for proper functioning of the machine during the period of warranty the observations made by the apex court are similar to the facts of the case. The case in hand is within the warranty period as the complainant purchased the vehicle on 30.07.2012 and problem in Gear Box occurred within warranty period i.e., 05.03.2013 and it continued till 30.04.2014. As per the warranty “the period of one year starts from the date of sale or 36,000 KMs of its running which were occurring earlier. As per Ex.B3 to B12 the complainant has not run the car upto 36,000 KMs. Hence the problem occurred within warranty period even if the complainant used the vehicle for commercial purpose he comes under the definition of consumer as per section 2 (d) of Consumer Protection Act. Hence this point is answered accordingly in favour of the complainant and against the opposite parties.
15. The counsel for complainant stated that after second service the complainant noticed about the problem in Gear Box on several times i.e., on 05.03.2013 again 24.04.2013 at last 30.04.2013 but the problem in the Gear Box was not rectified and the complainant is not inclined to deliver the vehicle, as the 2nd opposite party has not set right the problem in required fix up new Gear Box then only the complainant will take delivery of the vehicle and the same was informed through legal notice and false reply was given by the 2nd opposite party.
16. The counsel for the 3rd opposite party argued that there is no manufacturing defect as alleged by the complainant the service centre 2nd opposite party done their service to the complainant whenever he approached the 2nd opposite party. The counsel for the 3rd opposite party argued that the complainant paid the amounts when he intend to change some parts and oil changes then only the 2nd opposite party collected the amounts which were not covered under warranty. The 3rd opposite party argued that the complainant run the vehicle till the warranty period of one year just before the completion of warranty. The 3rd opposite party argued that as per Ex.B2 to B13 it clearly shows that the complainant run the vehicle upto 33,000 KMs. The 3rd opposite party also submitted that the complainant suppressed the third free service availed by him and issuing of job card by the 2nd opposite party. The 3rd opposite party stated that on 18.03.2013 the complainant has replaced number of parts and the 2nd opposite party collected an amount of RS.13,078/- towards parts which were not covered under warranty. The counsel for the 3rd opposite party also submitted that the complainant once again brought the vehicle on 09.05.2013 with a problem with gear shifting difficult and gear getting struck and the 2nd opposite party attend the repairs by gb over oiling etc., and the same was mentioned under Ex.B12. The 3rd opposite party stated that the complainant by suppressing the facts approach this Forum to get unlawful gain, hence the complaint is liable to be dismissed.
17. When we go through the pleadings of the complainant there is no clarity in the complaint whether the 2nd opposite party attended the problems raised by the complainant at the time of giving vehicle for service or not. The complainant simply stated that when the problem occurred in Gear Box vehicle given to 2nd opposite party on 04.02.2013 and delivered to the complainant under job card No.694. The complainant not stated in the complaint that the 2nd opposite party is not rectified the problem on 04.02.2013. The complainant stated that again on 05.03.2013 the problem occurred in Gear Box, 2nd opposite party asked 10 days’ time for repairs and collected Rs.14,012/- under different bill numbers. When we go through the Ex.B1 to B12 the crucial documents under Ex.B8 dt.18.03.2013 the 2nd opposite party has replaced so many parts which were damaged at the time of third free service for this the complainant has not explained in the complaint why the complaint paid that much of amount during warranty period and what is the necessary to replace the new parts within one year. The 2nd opposite party filed Ex.B2 document, the Ex.B2 documents shows that the complainant given the vehicle for repair on 02.02.2013 it is mentioned in Ex.B2 that the Gear Box wheels seized due to no oil in the Gear Box Gear wheel teeth were broken, synchrocine and kit also gone. The 2nd opposite party stated that when the complainant refused to change the new Gear Box and he intended to purchase second hand Gear Box they allowed the complainant as per his wish for replace the same. Accordingly the complainant fixed the second hand Gear Box which was spoiled due to accident. Earlier the 2nd opposite party mentioned in the reply notice dt.23.05.2013 under Ex.A5 that the vehicle was met with an accident due to it the Gear Box was spoiled. We are considering the Ex.B2 document and we are of the opinion that the Gear Box was spoiled due to improper maintenance or may be due to accident, as there is no explanation from the complainant about the Ex.B2. We have also gone through the contents of complaint about the information to 3rd opposite party by the complainant there is ambiguity in the complaint that the complainant stated a complaint was given about the Gear Box problem to the 3rd opposite party on 27.04.2013 and 29.04.2013 to toll free number of 3rd opposite party on the very next line in the complaint, the complainant stated that the complainant given the vehicle to 2nd opposite party for service on 24.04.2013 on the advice of 3rd opposite party how could it be happened when the complaint made on 27.04.2013 and 29.04.2013 to 3rd opposite party and the vehicle given on 24.04.2013 to 2nd opposite party with instructions of 3rd opposite party it should be clarified by the complainant only. As per the complaint the complainant availed only two free services latter problem in Gear Box but when we go through the Ex.B9 to B12. The complainant suppressed the facts before this Forum that he availed third free service on 18.03.2013 under Ex.B7. The complainant also suppressed the fact about receiving of the vehicle on 29.04.2013 as per Ex.B9 the complainant took the delivery of car on same day i.e., 29.04.2013 where as in the complaint it is mentioned that the complainant resisted to take delivery of car. The complainant also suppressed the fact that the complainant again given the vehicle to 2nd opposite party on 09.05.2013 under Ex.B11 with the same problem but the same was not mentioned anywhere in the complaint. These are all amounts to suppressing of material facts. More over as per the complaint the complainant used the vehicle upto warranty time i.e., 33000 KMs. The complainant is not explained how he run the vehicle without proper Gear Box from 19000 KMs to 33000 KMs with in a span of 2 months. It clearly shows that the complainant filed the present complaint only to get unlawful gain as there is no manufacturing defect in the Gear Box and failed to establish defect in Gear Box. The counsel for 3rd opposite party relied a decision reported in 1995 (3) CPR 602 Between RR Gupta Vs. Premier Automobiles Private Limited: The above case the complainant availed 3 free services, after 3rd service he noticed on side of the car was not the same as on the other side, case of the complainant that it is manufacturing defect. The opposite party contended that the car colour was damaged due to accident and within warranty complainant not noticed any defects. The Hon’ble Court held that the complainant availed 3 fee services and complained about oil leakage it was removed. The complainant failed to prove that there was any manufacturing defect in the car, hence, the complaint is liable to be dismissed.
18. The facts of the above case and facts of the case in hand similar and the complainant failed to establish that problem in Gear Box is a manufacturing defect moreover the complainant in the present case also availed three free services before second service he could not notice any problem in the Gear Box. The complainant also failed to get any opinion from expert that the problem in Gear Box is manufacturing defect and there is no whisper in the complaint that the 2nd opposite party not attended the services to the complainant. Hence there is no deficiency of service on the part of the opposite parties. Hence this point is answered accordingly in favour of the opposite parties and against the complainant.
19. In the result the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 19th day of January, 2015.
Sd/- Sd/- Sd/-
LADY MEMBER, PRESIDENT MALE MEMBER
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EVIDENCE ON CHIEF AFFIDAVITS
ON BEHALF OF THE COMPLAINANT:
PW1: Ambakar Nanjunda Rao complainant.
ON BEHALF OF THE OPPOISITE PARTIES
RW1: Thinlay Chukki, Manager (Legal) with TATA Motors Limited, Bombay.
RW2: P.Venkateswara Rao, Authorized person TATA Motors Service Station,
Penukonda (V&M), Ananthapuramu District.
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of Retail invoice dt.30.07.2012 issued by the 1st opposite party
in favour of complainant.
Ex.A2 Photo copy of Cash/Credit bills (Nine) issued by the 2nd opposite party in favour
of complainant.
Ex.A3 Photo copy of proceedings issued by the Deputy Director of Dairy Development
Coop Fed Limited dt.02.02.2013.
Ex.A4 Office copy of the legal notice dt.07.05.2013 got issued by the complainant to the
Opposite Parties 1 & 2.
Ex.A5 Reply notice dt.23.05.2013 got issued by the counsel for 2nd opposite party to the
council of the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY NO.2
Ex.B1 Original Job card and Gate Pass dt.07.01.2013 issued by the 2nd opposite party
in favour of the complainant.
Ex.B2 Original Job card and Gate Pass dt.02.02.2013 issued by the 2nd opposite party
in favour of the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY NO.3
Ex.B3. Job Card dt.09.11.2012 issued by the 2nd opposite party in favour of the
complainant.
Ex.B4 Tax invoice dt.09.11.2012.
Ex.B5 Job Card dt.08.01.2013 issued by the 2nd opposite party in favour of the
complainant.
Ex.B6 Tax Invoice dt.08.01.2013.
Ex.B7 Job Card dt.18.03.2013 issued by the 2nd opposite party in favour of the
complainant.
Ex.B8 Tax Invoice dt.18.03.2013.
Ex.B9 Job Card dt.29.04.2013 issued by the 2nd opposite party in favour of the
complainant.
Ex.B10 Tax Invoice dt.29.04.2013.
Ex.B11 Job Card dt.09.05.2013 issued by the 2nd opposite party in favour of the 05 complainant.
Ex.B12 Tax Invoice dt.09.05.2013.
Sd/- Sd/- Sd/-
LADY MEMBER, PRESIDENT MALE MEMBER
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
