BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.42/2012

Dated this the 27^th day of February 2015.

S. Kalaiyarasan, S/o.Soundirarajan

Sidamangalam Main Road,

Ervady Post,

Nagapattinam District and  Taluk                                                  ….       Complainant

    Vs.

1. The General Manager,

    TVS Motor Company Limited,

    Post Box No.4,

    Haritha, Hosur-635 109

    Tamil nadu.

2. The Manager,

    Sakthi Auto Agencies,

    No.113, Thirunallar Road,

    Karaikal.                                                                            ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT           :  Thiru.A.Thirumalvalavan, Advocate.

FOR THE OPPOSITE PARTIES : OP.1 – Exparte

      OP.2 – Thiru.C.Baskaran, Advocate.

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying :

1. To direct the opposite parties to replace the defective TVS Heavy Duty Super XL two wheeler with new.
2. To direct the opposite parties to pay a compensation of Rs.90,000/- to the complainant for the deficiency in service attributed by the opposite parties.
3. To direct the opposite parties to pay Rs.5000/- towards litigation cost.
4. To pass any other order which this Forum deem fit and proper in the circumstances of the case.

2.  The case of the complainant is as follows:

            The complainant is studying in the college.  He has purchased one TVS Heavy Duty Super XL two wheeler vehicle from the second opposite party, which was manufactured by the first opposite party.  The said vehicle was duly registered before the competent authority vide vehicle No.PY-02-L-9819.   As per the warranty terms, he has given his vehicle to the second opposite party for two free services on 18.06.2012 and 18.09.2012.  When he was taking the vehicle from the second opposite party's workshop after second free service, he noticed that at the left side handle bar, the switch was improperly fitted.   He further noticed that the said button was fitted in the handle with the support of piece of paper.   When he enquired about it, the staff of the second opposite party told that the change of switch can be made after getting concurrence from the first opposite party.  On believing the words, he has taken the delivery and while on returning to his home,  the said switch got broken.  Though the complainant reported about the defect in the switch with the second opposite party,  there was no proper response from the second opposite party.  The complainant submitted that the second opposite party wantonly removed the original switch at the time of second service and provided the local switch, which caused mental agony to him.  The vehicle now appeared as old vehicle.  The purpose for which the vehicle was purchased by the complainant is not served.  The complainant had issued a legal notice dated 03.08.2012, for which the second opposite party has given a vexatious reply.  Hence this petition.

3.         The reply version of the second opposite party being adopted by the first opposite party is as follows:

            The second opposite party denied all the allegations made out in the complaint except those that are specifically admitted in the reply version. . In the present complaint, the complainant has alleged false allegations which was not sought in the legal notice dated 03.08.2012 and claimed relief for the same.  For the said legal notice, the opposite parties have given their detailed reply on 21.08.2012.  While reporting before the second opposite party, the complainant has said that the left side hand switch was broken due to his negligent driving and asked for replacement. But in the complaint, he has given contra allegation that the switch got damaged at the time of second free service.  The complainant failed to give the date of second service.  In the reply notice given by the second opposite party, it is replied that though there was no negligent on the part of it, in order to favour the customer, they are ready replace the switch settings at the time of third free service on getting insurance claim and asked the complainant to drop the legal proceedings.  The second party is ready to attend the defects as noticed by the complainant.  In order to get illegal gain, the complainant has filed this present complaint with false allegations.  It is further submitted that the complainant is the resident of  Nagapattinam, Tamil Nadu but while taking delivery of the vehicle from the second opposite party, he has shown his resident address as Karaikal.  In order to avoid paying of tax, the complainant has given a false Karaikal address. The complainant has not produced the damaged switch setting to prove his case. There is no negligent or service deficiency on the part of the second opposite party.  Hence they prayed to dismiss the complaint.  

4.         For the reply version of the second opposite party, the complainant has filed his counter statement with the following averments:

            The complainant denied the allegation that he has claimed false relief which was not sought in the legal notice.  The complainant has given his correct address while purchasing his vehicle.  As required by the second opposite party, the witness from the Karaikal region has signed in the document while taking delivery of the vehicle.  The second party has sold the old vehicle and furthermore, at the time of second free service, they have changed the original switch setting with the local make.  The above activities of the second opposite party reveal that it has indulged in deficiency in service.    The second opposite party has unnecessarily raised the allegation regarding residence of the complainant.   The complainant further denied that he has given wrong address to evade from the tax.  By giving false allegation about the complainant, the second opposite party has created mental agony to the complainant.  The claim sought by the complainant is according to law.  Hence prayed to allow this complaint and order for the relief as sought in the complaint.

5. The following are the objection filed by the second opposite party to the counter statement filed by the complainant:

            The second opposite party denied the allegations made in the counter statement.  The complainant has not mentioned the Act or Section of law under which he has filed his counter statement, hence the counter statement is not maintainable.   As the complainant has not quoted any section of law in the counter statement, the second opposite party prayed to dismiss the counter statement.

6.         On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C9.  No oral or documentary evidence was adduced on the side of the opposite parties

7.         Points for determination are:

1. Whether the complainant is the consumer?
2. Whether any deficiency in service and negligent act attributed by the opposite parties?
3. To what relief the complainant is entitled for?

8.         Point No.1:

            The complainant has purchased a new TVS Heavy Duty Super XL two wheeler from the second opposite party for valid consideration of Rs.31,900/- on 17.05.2012 as per Ex.C1.  The first opposite party is the manufacturer of the said vehicle.  Hence the complainant is the consumer for the opposite parties.

9.         Point No.2:

            We have perused the averments of the complaint and reply version of the second opposite party, Exs.C1 to C9, evidence adduced by the complainant and written arguments filed both the parties.  From the above said material on hand we have ascertained from the pleadings that the left side handle bar switch settings developed cracks, due to mishandling and effect of over-tight given in the fitting by the second opposite party during the second free service.  Further, the complainant alleges that the second opposite party assured to rectify the damage during the third free service.  The complainant does not take the plea that the said vehicle having manufacturing defect.  The second opposite party denied the said allegation and stated that the cracks caused due to the mishandling and the complainant has not possessed the valid driving licence at the time of purchase.  The second opposite party further submitted that the said vehicle having valid insurance and he may claim through that.

10.       Except the pleading, photos and his own deposition, the complainant did not adduce any valid evidence that the said spare was damaged by the second opposite party.  The second opposite party also denied the contention of the complainant.  The second opposite party submitted in Ex.C9 that without prejudice to the claim of the complainant the second opposite party intended to replace the said damaged spares on humanitarian grounds and it will be reimbursed through the insurance coverage by the second opposite party.  The second opposite party has taken the plea that the said vehicle is in road worthy condition till today and it is admitted by the complainant.  But the complainant submitted that he is unable to drive the vehicle during the night time because of the damage in the switches.

11.       From the above discussion it is clear that the switch assemble of the said vehicle is damaged one.  The second opposite party also admitted to replace the same.  Therefore the second opposite party is liable to replace the switch assemble in the vehicle. The delay caused during the period of service by the second opposite party to replace the switch clearly attributes mental agony to the complainant.  Hence the complainant is entitled for the relief.

12.       Point No.3:

            In view of the decision arrived in Point No..2, this complaint is hereby allowed.  The opposite parties are directed to replace the switch assemble in the said vehicle and the opposite parties are directed to pay the compensation of Rs.5000/- for the mental agony suffered by the complainant and the opposite parties are directed to pay a sum of Rs.5000/- as cost of the proceedings.

Dated this the 27^th day of February 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANT S WITNESS:  

CW.1             22.05.2014                Kalaiyarasan

OPPOSITE PARTIES WITNESS:  Nil

COMPLAINANT S EXHIBITS:

OPPOSITE PARTY S EXHIBITS:    Nil

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER