BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
FRIDAY, the 3rd day of November, 2017
FIRST APPPEAL No. 21/2016
Ameena, W/o Abdul Wahab,
No.4, New Street, Koundampalayam,
Oulgaret, Puducherry. ………….. Appellant
Vs.
The Manager,
Manakular Motors Pvt. Ltd.,
Authorised Dealers of TATA Motors & Fiat,
Puducherry. ………… Respondent
(On appeal against the order passed in C.C.No.76/2014, dt.10.12.2015 by District Forum, Puducherry)
C.C.No.76/2014
Ameena, W/o Abdul Wahab,
No.4, New Street, Koundampalayam,
Oulgaret, Puducherry. ………….. Complainant
Vs.
The Manager,
Manakular Motors Pvt. Ltd.,
Authorised Dealers of TATA Motors & Fiat,
Puducherry. ………… Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
THIRU. S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Tvl.S.Vimal & K.Ashok Kumar,
Advocates, Puducherry.
FOR THE RESPONDENT:
Exparte
O R D E R
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry, dated 10.12.2015 made in C.C.76/2014..
2. The complainant thereon is the appellant herein and the opposite party before the District Forum is the respondent.
3. The parties are referred in the same position as they have been referred before the District Forum for the sake of convenience.
4. The case of the complainant before the District Forum, in nutshell, is set out herein:
The complainant has purchased a TATA Sumo Grande Dicor GX Diesel engine car bearing Regn.No.PY-01/BQ-8227, Engine No.2.2LDICOR10NYYJ23571 and Chassis No.MAD465015B9N33953 from the opposite party by availing loan from the Axis Bank, Puducherry for a sum of Rs.10,41,741/-. From the date of purchase, the vehicle has a poor mileage and it runs only 4 K.M./litre. There was brake failure and vibration even if the vehicle runs at a speed of 40 K.M./hour. In the free service also, the opposite party did not make any service particularly, in the aspects mentioned above. On 21.08.2013, the complainant handed over the vehicle again for rectifying the same defects. The speedometer reading at the time of handing over of the vehicle was 41,882 K.M. The opposite party without informing and without the knowledge of the complainant used the vehicle for its own purpose by carrying goods. For carrying goods, the rear seat was removed. The speedometer reading was noted as 43,005 KM. The window glass of the vehicle was also damaged and the outside body is fully scratched. During the period of 5 months, the insurance policy was lapsed and knowing fully well about the period of insurance, the opposite party was using the vehicle without insurance cover. The complainant thought that he could sell the vehicle through the opposite party, but, the opposite party did not take any steps. The opposite party quoted the sale price at Rs.3,50,000/-.The complainant thought that it would be heavy loss to her. Therefore, the complainant approached the District Forum.
5. The opposite party remained absent and hence it was set exparte. Later, on the side of the complainant, the complainant herself has been examined as CW1 and through her Exs.C1 to C6 and Ex.C8 were marked. One Mr.Sundar, Mechanic was examined as CW2 and through him Ex.C7 was marked on complainant’s side.
6. Three points were determined by the District Forum and they are set out hereunder:
1. Whether the complainant is a consumer?
2. Whether the Opposite Party attributed deficiency in service?
3. To what relief the complainant is entitled?
7. On the first point, the District Forum Found that the complainant is a consumer and on the second point, the District Forum found that the opposite party has to be attributed for deficiency in service. On the 3rd point, the District Forum directed the opposite party to replace defective vehicle with a new one of the same make and brand to the complainant and to keep the defective vehicle with it; to pay a sum of Rs.20,000/- towards compensation for deficiency in service; and to pay a sum of Rs.5,000/- towards costs of the proceedings.
8. As stated already, the present appeal is laid by the complainant against the said order of the District Forum.
9. The grievance of the complainant on the order of the District Forum is that the District Forum should not have directed the opposite party to replace the defective vehicle with a new one of same make and brand to the complainant and instead it should have ordered the opposite party to pay the value of the vehicle. On the compensation awarded by the District Forum to the complainant for deficiency in service of the opposite party, the grievance of the complainant is that only a sum of Rs.20,000/- was awarded, which is far less than Rs.2.00 lakhs sought by her.
10. We have gone through the pleadings, the evidence of CWs 1 & 2 and the documents Exs.C1 to C8. Also, we heard the learned counsel appearing for the appellant. Though at the stage of condonation of delay filed by the appellant, the opposite party has engaged a counsel to defend the opposite party, later, it did not choose to enter appearance in the appeal, though notice has been served on the opposite party in the present appeal. Therefore, on the material available before us, we are inclined to pass the present order.
11. Admittedly, the complainant seems to have purchased the TATA Sumo Grande Dicor GX Diesel engine car bearing Regn.No.PY-01/BQ-8227, Engine No.2.2LDICOR10NYYJ23571 and Chassis No.MAD465015B9N33953 from the opposite party on 14.03.2012 for a sum of Rs.10,41,741/-, by availing loan from Axis Bank, Puducherry. Finding that the vehicle is giving a poor mileage and that it has got brake failure, vibration even if it runs at a speed of 40 K.M./hour, the complainant has given the vehicle for service to the opposite party. The first service is a free service. Again, the complainant has entrusted the vehicle to the opposite party on 21.08.2013 for rectifying the defects. Even according to the complainant, the speedometer reading at that time was 41,882 K.M.. The vehicle undoubtedly, was used by the complainant from the date of purchase till 21.08.2013, when it was entrusted to the opposite party for rectifying the defects in the vehicle. As stated already, even the complainant has stated that at the time of entrusting the vehicle to the opposite party for rectifying the defects, the speedometer reading was 41,882 KM. It shows that the complainant was using the vehicle for a considerable time and the vehicle had run to a considerable kilometer.
12. However, we can see as per the complaint before the District Forum and also on the evidence and documents of the complainant, the opposite party when the vehicle was entrusted with them for rectifying the defects on 21.08.2013, did not return the vehicle after rectifying the same to the complainant. Instead, the opposite party seems to have used the vehicle for its own purpose. Thus, in our considered view, it is undoubtedly a fault on the part of opposite party. When the complainant has entrusted the vehicle for rectifying the defects, either it should have been made ready after rectifying the defects or should have informed the complainant that the defects could not be rectified. Unfortunately, the opposite party did not do anything as set out. Thus, in our considered view, it is deficiency in service on the part of opposite party.
13. While coming to the order passed by the District Forum directing the opposite party to replace the defective vehicle with a new one of the same make and brand and to keep the defective vehicle with them is concerned, the appellant has raised a ground in the grounds of appeal that the dealership of the opposite party has been terminated by the manufacturer of the vehicle and hence the opposite party cannot replace the defective vehicle with a new one of the same make and brand and to keep the defective vehicle with it. In our considered view, the District Forum should have directed the opposite party to pay the cost of the vehicle to the complainant. Even here, we are not able to direct the opposite party to return the entire sale price of the vehicle to the complainant since, as admitted by the complainant herself, though the car was purchased on 14.03.2012, the complainant was using the vehicle till 21.08.2013, the date on which the vehicle was entrusted to the opposite party for rectifying the defects. Even the complainant has admitted in her complaint that at the time entrusting the vehicle to the opposite party, the speedometer reading was 41,882 KM. Therefore, in our considered view, as already stated, we cannot direct the opposite party to pay the entire cost of the vehicle, as claimed by the complainant. Therefore, in our considered view, the opposite party could be directed to pay to the complainant 75% of the cost of the vehicle.
14. As far as the compensation granted by the District Forum, viz. a sum of Rs.20,000/- is concerned, it is the case of the complainant that the said amount is a meager amount. In our considered view, the opposite party, which has neither rectified the defects in the vehicle nor returned the vehicle to the complainant, has to undoubtedly, pay a just and reasonable compensation to the complainant. It is all the more necessary since the opposite party without handing over the vehicle to the complainant after rectifying the defects, was using the vehicle for its own use. That apart, the opposite party made the complainant to run from pillar to post for getting redressal and finally approached the District Forum claiming the reliefs set out thereunder. Therefore, it would be just and reasonable to award a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation to the complainant for the deficiency in service on the part of opposite party. Further, a sum of Rs.5,000/- has been awarded as cost by the District Forum. In our opinion, the said amount is just and reasonable.
15. The amounts awarded to the complainant have to be settled to the complainant by the opposite party within two months from the date of receipt of this Order, failing which, it shall carry interest at 12 % p.a. from the date of expiration of the said period till the final payment is made.
16. The appeal is, thus, allowed in part as indicated above with a cost of Rs.5,000/- (Rupees Five-Thousand only) in this appeal.
Dated this the 3rd day of November, 2017
(Justice. K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
