By Sri. Jose V. Thannikode, President:
The Complainant filed against the Opposite parties to return back the price of the vehicle and to pay cost and compensation due to the supply of defective vehicle.
2. Brief of complaint:- The Complainant approached the first opposite party after seeing the advertisement of TATA ULTRA 912/39 EX truck and enquired about the same. The first opposite party shown brochures and other materials relating to the above mentioned truck and convinced the complainant that it is low maintenance vehicle. The complainant has purchased the TATA ULTRA 912/39 EX Truck from the opposite party No.1 on 22.05.2014. The complainant availed Finance facility from TATA Motors finance limited to purchase the vehicle. The complainant purchased the vehicle for his livelihood. The vehicle has a warranty for 3 years or 3,00,000 K.M. whichever is earlier for the parts particularly mentioned in the warranty manual. In the first 10,000 K.M. itself there was so many complaints started with regard to brake system, gear system and tyres of the vehicle. The complainant produced the vehicle before the service station at Calicut and service technicians of the opposite party repaired the complaints for the time being by taking somany days. On 24.11.14 the liner of the vehicle was broken due to the mechanical defect and the complainant produced the vehicle for repair. After the service huge shortage of mileage in the tyres was also noticed by the complainant. The complainant could not use the vehicle due to the defects occurred one after another and he produced the vehicle for service on 03.01.15, 05.0l.15, 28.01.15 before the service centre. On 28.01.15 due to excessive tread wear the complainant shown the vehicle in Apollo Tyres Ltd., West Hill Beach area, Calicut. The complainant produced the vehicle on 19.02.15,05.03.15 and 21.4.15 for the reasons of Front Both Side tyre wear, Air break leak, difference in Oil level, Wheel oil leakage, Clutch problem, Oil leak from ront tyre, Brake air leak and excessive tyre wearing etc. The complainant purchased 2 tyres from Popular tyre centre, S.Bathery on 26.02.15 for Rs.26,OOO/-. The complainant couldn't get the mileage for the tyres as promised by the opposite party due to the mechanical defects of the vehicle. The technicians couldn't rectify the problem of breaking system, (regular damage of Brake pad, Brake oil leakage, Brake jam) and tyre wearing inspite of several attempts. The regular complaint of the vehicle put this complainant in heavy loss, mental agony and hardship. The customers of the complainant started to avoid the complainant due to the non-availability of the vehicle in time. The complainant could not remit the installments of the Finance availed from TAT A motors Finance Ltd, of Rs.28900/- per month. 10 installments became due to the finance company because of the above said reason. The Complainant approached the opposite party No.1 several times for a remedy but the opposite party No.1 neither entertained the complainant nor suggested a solution for the problems happened to the vehicle. The opposite party No. 1 told the complainant that he has to consult with the company and only after that he can take a decision and he further said that, they are only dealers of the vehicle and the manufacturer is liable for these sort of complaints. The complainant approached opposite party No. 1 on next days also but he arrogantly avoided the complainant. The complainant has sent a lawyer notice to the opposite parties No.1 &2 on13-05-2015 and the opposite parties accepted the notice and sent reply notice stating untenable contentions and allegations. The averment in the reply notice that the complainant used the vehicle often in over loads, improper driving and in reckless manner. As per the reply notice of the opposite party No.2, the complainant approached the opposite party No.l with all documents but not ended in any result. The complainant is not in a position to use the vehicle now. The transporting business of the complainant became loss and he is struggling for his livelihood. The Opposite parties committed serious deficiency in service and unfair trade practice by selling a defective vehicle to this complainant. The cause of action of the complaint arose on 22.05.2014 when the complainant purchased the vehicle and every day thereafter. Therefore it is humbly prayed that this Hon'ble Forum may be pleased to pass an order directing the opposite parties to:
a. Take back the vehicle from the complainant and replace the vehicle with a new model
having no defect, or
b. Pay a sum of Rs. 4,00,000/- (Rupees Four lakhs only) towards the compensation to
the complainant.
c. Pay an amount of Rs.26000/- as the cost of the tyres purchased by the complainant.
d. Pay an amount of Rs.2,89,000/- as the defaulted installments amount payable to the
Finance Company and Rs. 4500/- as the charges levied by financier from the
complainant.
e. Waive the further amount due and payable by the complainant to the opposite party
No.3 (financier)
f. Pay a sum of Rs.2000/- as the cost of this proceedings and
g. Allow such other and further reliefs which this Hon'ble Forum deems fit to grant
during the pendancy of case.
3. Notices were served to Opposite Parties and 1st and 3rd Opposite parties entered appearance and filed version 2nd Opposite Party's notice served on 17.10.2015. On 09.11.2015 2nd Opposite party represented through one counsel and sought time for version. Hence time allowed till 25.11.2015, on 25.11.2015 also 2nd Opposite Party has not filed version. In the next hearing date ie 01.12.2015 also 2nd Opposite Party not represented and not filed version also. Hence his name called and declared exparte.
4. 1st Opposite Party filed version and denied all the allegation and further stated that the Complaint is not maintainable before the Forum and the 1st Opposite party has not conducted any kind of restrictive trade practice or unfair trade practice or deficiency in service or other illegal activities towards the Complainant and prayed to dismiss the complaint with compensatory cost.
5. 3rd Opposite Party also denied all the allegation in their version and further stated that they are not anyway connected to the Complaint of the vehicle and they are only the financier and they are nothing to do with the Complaint of the vehicle and prayed before the Forum to dismiss the complaint with compensatory cost to the 3rd Opposite parties.
6. Complainant filed proof affidavit of Complainant and stated as stated in the complaint and he is examined as PW1 and Exts.A1 to A19 is marked. Ext.A1 is the copy of Registration certificate of the vehicle. Ext.A2 is the copy of permit of the vehicle. Ext.A3 is the retail invoice of the vehicle. Ext.A4 is the service check list/job order of the vehicle dated 24.11.2014. Ext.A5 is the tax invoice. Ext. A6 in the Job Sheet dated 05.01.2015. The Complaint reported in Ext.A6 is (1) Front wheel brake jam (2) Rear wheel brake jam (3) RH Door Glass tight (4) Hand Brake Check (5) Oil service (6) Driving seat adjustment complaint (7) Diesel tank lock complaint (8) Brake adjustment (9) LH Door nut fix (10) Right wheel bearing. Ext.A7 is the production inspection report given by the Appollo Tyre Ltd dated 28.01.2015 wherein it is noted “Excessive tread wear due to mechanical fault. Ext.A8 is the Proforma Invoice dated 19.02.2015. Ext.A9 is the job sheet issued by the Apco Automobile Ltd., wherein the complaint of tyre is noted as front both side tyre wear (cover) check all tyre wear and check air break leak and check all oil level. Ext.A10 is also job sheet issued by Apco Automobile dated 05.03.2015 where in also the Rear RH wheel oil leakage. Ext.A11 is the bill for tyre dated 26.02.2015 for the same vehicle for one pair tyre for Rs.26,000/-. Ext.A12 is the customer interaction sheet dated 21.04.2015. Ext.A13 is the copy of lawyer notice issued by the Complainant to the Opposite Parties. Ext.A14 is the postal receipt for Ext.A13. Ext.A15 is also postal receipt for Ext.A13. Ext.A16 is the AD card for Ext.A13. Ext.A17 is the AD card for Ext.A13. Ext.A18 is the reply to Ext.A13 lawyer notice. Ext.A19 is the reply to lawyer notice dated 30.05.2015. 1st Opposite party also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 and B2 is marked. Ext.B1 is the reply lawyer notice send by the 1st Opposite Party to the Complainant. Ext.B2 is the postal receipt and Ad cards for Ext.B1.
7. On aver all evaluation of the complaint, version and documents and evidence we have raised the following points for consideration.
1. Whether there is deficiency of service or unfair trade practice from the side of
Opposite Parties.?
2. Relief and cost.
8. Point No.1:- Any way the Complainant purchased a new vehicle having a warranty of 3 years or 300000 km which ever is earlier for the parts mentioned in the warranty card but after 5 months of purchase the vehicle started complaint in various parts of the vehicle and the Complainant entrusted the vehicle to the 1st Opposite party for somany time but it was not cured properly and we feel that some manufacturing defects in the vehicle. The 2nd Opposite Party has not appeared before the Forum and not defended the case. Hence we feel that there is some manufacturing defects in the vehicle. Hence we found that it is a clear case of deficiency of service from the side of 2nd Opposite party. Hence the point No.1 is found accordingly.
9. Point No.2:- Since the point No.1 is found against the 2nd Opposite party he is liable to rectify the defects of the vehicle and also he is liable to pay cost and compensation and the Complainant is entitled for the same.
In the result, complaint is partly allowed and 2nd Opposite Party is directed to replace the defective parts of the vehicle and also directed to pay Rs.50,000/- (Rupees Fifty thousand) only as compensation and Rs.5,000/- (Rupees Five thousand) only as cost of the proceedings within one month from the date of receipt of this order, failing which the Complainant is entitled for an interest at the rate of 12% per annum for whole amount.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 18th day of May 2016.
Date of Filing:06.10.2015
PRESIDENT : Sd/-
MEMBER : Sd/-
/True Copy/
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
PW1. Dhanaja Kumar. Complainant.
Witness for the Opposite Parties:
OPW1 Manoj Kumar N.A Works Manager, Apco Automobiles,
Kozhikode.
Exhibits for the complainant:
A1. Copy of Certificate of Registration.
A2. Copy of National Permit for Goods Carriage. dt:15.07.2014.
A3. Retail Invoice. dt:30.05.2014.
A4. Copy of Service Check list/ Job Order.
A5(2 Page). Tax Invoice.
A6. Job Sheet. dt:05.01.2015.
A7. Product Inspection Report. dt:28.01.2015.
A8. Proforma Invoice.
A9. Copy of Job Sheet. dt:19.02.2015.
A10. Job Sheet. dt:05.03.2015.
A11. Retail Invoice. dt:26.02.2015.
A12. Copy of Customer Interaction Sheet. dt:21.04.2015.
A13. Copy of Lawyer Notice. dt:13.05.2015.
A14. Postal Receipt. dt:13.05.2015.
A15. Postal Receipt. dt:13.05.2015.
A16. Acknowledgment.
A17. Acknowledgment.
A18. Letter. dt:20.05.2015.
A19. Copy of Lawyer Notice. dt:30.05.2015.
Exhibits for the opposite Parties.
B1. Copy of Letter. dt:30.05.2015.
B2(1) Acknowledgment.
B2(2) Postal Receipt. dt:17.06.2015.
