Complaint filed on: 11.03.2015
Complaint Disposed on:10.03.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.63/2015
DATED THIS THE 10th DAY OF MARCH 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Smt.Nagarathnamma W/o B.R Subramanya,
A/a 45 years, R/o Bhuvanakote,
Uttameshwara Post, Koppa Taluk,
Chikmagalur (D).
(By Sri/Smt. K.S.Sharathchandra, Advocate)
V/s
OPPONENT:
1. M/s. Auto Matrix,
Jyothi Nagar, Near APMC Yard,
Kadur Road, Chikmagalur-2.
2. The Manager,
Auto Matrix, NH-48,
Thanniruhalla, B.M. Road,
Hassan.
3. The Manager,
Tata Motors Limited,
Retiral Section
Shared Services, D-9 Block,
Pimpri, Pune-411018.
(OP No.1 & 2 By Sri/Smt. T.R.Harish, Advocate)
(OP No.3-exparte)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos.1 to 3 alleging unfair trade practice in selling defective Indica car to the complainant. Hence, prays for direction against OP Nos.1 to 3 to replace the new car having no defects along with compensation for Rs.2,00,000/- for loss of income and for unfair trade practice.
2. The brief facts of the complaint is that:
The complainant on 08.08.2013 booked one Indica EV2 LS by paying Rs.5,000/- and after booking the complainant had taken a delivery of the said luxury taxi from Op no.2 on 30.08.2013 by paying an amount of Rs.4,24,611/-. All particulars of the vehicle as given below:
Maker’s Name : Tata Motors Ltd.,
Month & year of manufacture : August, 2013
Type : Saloon
Number of Cylinders : 04
Chasis Number : NAT600435DTG12613
Engine Number : 1.4CRA L08GAY12560
Fuel Used : Diesel
Horse Power : 1405 CC
Make’s Classification : TATA INDICA EV2 LS EVI NA
Wheel base : 2400 MM
Seating Capacity
(including Driver) : 4 plus 1
Unladen Weight : 1135 Kg
Color of the body : JET_SILVER
Gross Weight : 1635 Kg
After purchase of the said vehicle the complainant hypothecated the vehicle with Karnataka Bank, Narve Branch as he had availed the loan from the said Bank for purchase of the vehicle and vehicle was registered in the name of complainant as KA-18/B-3948. The complainant started using the vehicle as a taxi to earn her livelihood. But while using the vehicle the complainant noticed the defect in the vehicle and noticed that the loss of tyre very early and so far, the complainant has changed nearly 16 tyres to the said vehicle within warranty period and the said vehicle was plied only up to 36,000 Kms, the complainant took her vehicle to Op no.1 for service and replacement of the bald tyres on the following dates, i.e., on 26.09.2013, 18.11.2013, 21.01.2014, 11.04.2014, 16.05.2014, 19.09.2014, 19.09.2014, 19.06.2014, 16.05.2014 & 27.11.2014. On these dates the complainant has spent nearly Rs.2,000/- towards repairs, out of above dates only one time the Op had replaced the tyre at free of cost, but on all occasion the complainant had purchased the tyres by paying her own money, the Ops have not explained the reason for loss of tyre worn out on all services. Hence, there is a clear manufacturing defect in the said car, the complainant on all occasions had requested the Ops to know about the reason for worn out of the tyres, but Ops without giving any information had just replaced the tyre and provided service. Hence, Op no.1 to 3 have sold a defective car to the complainant, due to said defects in the car the complainant suffered a financial loss to the tune of Rs.2,00,000/- and complainant was unable to earn her livelihood. Finally the complainant left the car with Ops. The complainant issued legal notice dated 08.12.2014 to first and second Op and also called upon them to replace the vehicle with new one having no defects, even inspite of receipt of the notice Op no.1 to 3 failed to comply the notice, hence, Ops rendered unfair trade practice in selling defective car to the complainant. Hence, prays for direction against OP Nos.1 to 3 to replace the said defective car with new one and compensation for unfair trade practice as prayed above.
3. After service of notice Op no.1 & 2 appeared through their counsel and filed version, Op no.3 even after service of notice not appeared before this forum to answer the allegations, hence, Op no.3 placed exparte.
4. Op no.1 & 2 in their version have contended that the complainant has purchased Indica EV2 LS car from 1st Op at 05.08.2013 by paying Rs.4,24,611/-, it is also true that the vehicle was hypothecated to Karnataka Bank, Narve Branch and complainant also registered the vehicle in his name vide registration No.KA-18/B-3948, but this Op do not know that the complainant had purchased the vehicle for running it on hire basis to earn her livelihood.
The vehicle sold by this Op no.1 & 2 has no manufacturing defect as alleged by complainant. As per the terms and conditions of the warranty the complainant had to produce the vehicle before these Ops or any authorized service centre of the Op no.1 & 2. The warranty has provided service to the vehicle as below:
i) First Service – before completion of 1,000 Kms.
ii) 2nd Service - before completion of 4,000 Kms.
iii) 3rd Service - before completion of 10,000 Kms.
iv) 4th Service - before completion of 20,000 Kms.
And the complainant in order to get the warranty benefits she has to deliver the vehicle for service at authorized service centre of TATA Motors only. Anyhow on 21.01.2014 complainant reported that both front tyres were worn out, after inspection this Ops on the same day had provided wheel balancing and wheel alignment with the schedule service to the satisfaction of the complainant. Hence, it is denied that complainant changed 16 tyres to the said vehicle within warranty period.
Again on 14.04.2015 at the meters of 20,000 Kms, complainant reported the rear tyre wear was high and after inspection the following jobs was done:
- two trailing arms were replaced.
- two tyres of the back side were replaced within the warranty period.
Again complainant complained that the front tyres were worn out and the following jobs were done:
- front shock-observers replaced.
- wheel alignment was done under the warranty.
Again the complainant brought her vehicle for service when it was plied up to 24,250 Kms and also given complaint with respect to the high tyre wear, this Op had provided front knuckle replacement and wheel alignment was done under the warranty as it was within the warranty. Thereafter the vehicle was brought for running repairs (beyond warranty period) and these Ops noticed that the vehicle was run for 31,226 kms as on 19.09.2014, at the time of reporting for service these Ops provided replacement of break pads and provided the service.
On 27.11.2014 the vehicle was brought by complainant and complaint with respect to the tyre wear replacement and break pads. The Ops noticed that the vehicle was upto 37,312 kms and it is also noticed that tyres were not worn out, anyhow the wheel alignment and balancing provided by these Ops under the warranty, at this juncture of time these Ops thoroughly inspected through Works Manager and it was found that in between period the complainant had got the alignment done in a private workshop and also noticed that complainant had not reported the said problem in between 23.06.2014 to 27.11.2014.
The complaint reported by complainant as and on it was brought to these Ops were rectified within the warranty period, further the tyres are not manufactured either by this Op or by manufacturer TATA Motors (Op no.3), the tyres fixed to the said car are original equipments manufactured by Good Year Company, if there is any defects found in the tyres the complainant has to approach the manufacturer of the tyres and the said manufacturer is only answerable to the allegations made by complainant and complainant has not made the manufacturer of the tyres as a party to the proceedings. Hence, the complaint is liable to be dismissed for want of necessary parties.
Op no.1 and 2 further contended that the complainant has made a false allegations that these Ops have provided only one tyre replacement at free of cost, in fact this Ops have replaced the 2 tyres on 14.04.2014. The running of the new tyres depends upon the terrain of the road, usage of the vehicle, wheel alignment and balancing within specified period and type of driving also. Hence, there is no unfair trade practice in selling the vehicle and it is false that the tyres of the complainant’s vehicle was run only for 2,000-3,000 Kms only. The notice issued by complainant was suitably answered through their advocate, in fact the complainant had not taken delivery of the vehicle though all the repairs carried out in terms of the warranty, the car lying with first Op and this Op had issued a legal notice dated 08.05.2015 to take the delivery of the vehicle, but so far complainant had not taken the delivery of the vehicle after repairs, this Op had constrained to keep the vehicle in their custody, hence, complainant is liable to pay parking charges of Rs.100/- per day. As per the established practice this Op can only retain the vehicle up to 15 days from the service/repair, but after 15 days the parking charges has to be payable by complainant. Hence, complainant is liable to pay the said parking charges and there is no any manufacturing defect in the vehicle as alleged in the complaint. Hence, they are not liable to replace the vehicle with new one and prays for dismissal of the complaint.
5. Complainant filed affidavit and marked documents as Ex.P.1 to P.18 Op No.1 & 2 also filed affidavit and filed documents as Ex.R.1 & 2.
6. Heard the arguments.
7. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is unfair trade practice or deficiency in service on the part of OPs.
- Whether complainant entitled for any relief & what Order?
8. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
9. There is no dispute that complainant had purchased Indica EV2 LS from Op no.1 & 2 by paying Rs.4,24,611/- and registered into his name vide registration no.KA-18/B-3948, it is also admitted that after purchase of the vehicle the complainant had brought the vehicle to Ops on 21.01.2014 with complaint of both the tyres worn out, for which the Op no.1 & 2 have provided wheel balancing and wheel alignment. After the said service the vehicle was repeatedly brought to Op no.1 & 2 for repair, the said facts are all admitted by Op No.1 & 2. In order to establish that the complainant had delivered the vehicle for repairs on all occasions had produced nearly 10 tax invoice issued by Op no.1 & 2 marked as Ex.P.6 to establish that she had brought the vehicle for repair with respect to the tyres and the Op No.1 & 2 in their version have admitted that they have replaced 2 tyres on 14.04.2014, the said facts clearly goes to show that complainant had noticed that the tyres were worn out frequently and we noticed that on all occasions the complainant had complaint with respect to the tyre worn out, but Ops No.1 & 2 being a service providers have not given any reason for the worn out of the tyres within a such short period. It is admitted fact that the complainant has replaced the tyres frequently within 30,000-34,000 Kms. The Op had not produced any job cards before this forum to establish that there is no manufacturing defect in the car. We are of the opinion that the complainant has established his allegations with respect to the manufacturing defect in the car by producing the tax invoice issued by Op no.1 & 2, after the establishment of the said allegation the burden shifts on Op no.1 to 3 to establish that the vehicle sold to the complainant has no manufacturing defect, but Ops even inspite of possession of the car with them have not brought before this forum to establish that the car sold to the complainant has no manufacturing defect.
The learned advocate for Op vehemently argued that the complainant had not made efforts to appoint experts to know the condition of the vehicle and submits that the complainant had failed to establish the manufacturing defect. The arguments submitted by learned advocate for Op no.1 and 2 not acceptable, because the burden lies on the Op no.1 to 3 to establish that there is no manufacturing defect on the vehicle, it is admitted and established by complainant that the complainant has replaced the tyres nearly 10 times within a short period (within 30,000-34,000 Kms) after purchase of the vehicle, even the Ops have not made any efforts to establish that there is no manufacturing defect in the vehicle by sending the vehicle for laboratory test. The manufacturer of the vehicle i.e., Op no.3 not appeared before this forum to answer the allegations made by complainant. Hence, it is clear case of unfair trade practice on the part of Op no.1 to 3 in selling defective vehicle to the complainant. Hence, Op no.1 to 3 are liable to replace the vehicle with new one having no manufacturing defects.
The learned advocate for Op further vehemently argued that there is no manufacturing defect in the vehicle, at the same time there may be a defect in the tyre and the said tyres are not manufactured by TATA Motors and complainant had not made manufacturer as the party to this proceedings and submits for dismissal of the complaint. Even said arguments are also not acceptable, because the Op no.1 & 2 being service providers have not produced any documents or job cards to show that tyres having manufacturing defects, on all occasions of service Op no.1 to 3 have just made wheel balancing and wheel alignment and also suggested for replacement of the tyres to complainant. Hence, there is no requirement of bringing the manufacturer of the tyres to the proceedings. It is the clear case of manufacturing defect in the vehicle only.
Further, Ops have contended that the complainant had purchased the said vehicle for the purpose of commercial to earn profits. Hence, the complainant is not a consumer and prays for dismissal of the complaint. But we observed that the complainant had purchased only one vehicle and kept it for taxi to earn her livelihood by keeping one driver, nearly keeping a driver and using the car for taxi does not mean the complainant has purchased the car for commercial purpose. Op failed to establish that she is running a business of tours and travels. Hence, the plea of commercial purpose raised by Op was rejected. Hence, Op no.1 to 3 are liable to replace the defective car with new one and also liable to pay compensation of Rs.10,000/- for unfair trade practice in selling defective vehicle to the complainant along with litigation expenses of Rs.2,000/- to the complainant. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- OP Nos.1 to 3 are directed to replace the Car with new one having no defects and compensation of Rs.10,000/- (Ten thousand Rupees only) for unfair trade practice along with litigation expenses of Rs.2,000/- (Two thousand Rupees only) to the complainant.
- The OP No.1 to 3 are further directed to comply the above order within 30 days from the date of receipt/knowledge of the order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 10th day of March 2017).
(B.U.GEETHA) (H. MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the complainant:
Ex.P.1 - Sales Certificate dtd:02.09.13 issued by Op no.1.
Ex.P.2 - Temporary Registration Certificate.
Ex.P.3 - Tax invoice.
Ex.P.4 - Copy of the Policy.
Ex.P.5 - Letter issued by Op no.2 dtd:24.12.14.
Ex.P.6 - 8 tax invoice towards repair of the vehicle.
Ex.P.7 - Two pro-forma invoice.
Ex.P.8 - Office copy of the legal notice.
Ex.P.9 to 11 - 3 Postal ack. due.
Ex.P.12 - Reply issued by Op no.2.
Ex.P.13 - Receipt issued by Jayalaxmi Tyres for having purchase of the
2 tyres.
Ex.P.14 - Another receipt for having purchase of the tyre dtd:19.07.14.
Ex.P.15 - Receipt dtd:02.08.14 for purchase of the tyres.
Ex.P.16 - Another receipt issued by H.A tyres dtd:10.08.14 for purchase
of the tyres.
Ex.P.17 - Receipt issued by Op no.1 dtd:08.08.13 towards booking of
the Indica Car.
Ex.P.18 - 4 job slips issued by Op no.2 towards repair of the vehicle.
Documents produced on behalf of the OPs:
Ex.R.1 - Letter dtd:08.05.15 issued to complainant.
Ex.R.2 - Service History(3 pages).
Dated:10.03.2017 President
District Consumer Forum,
Chikmagalur.
RMA
