DATE OF FILING : 11.12.2014

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  27th  day of  April, 2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.408/2014

Between

Complainant       :   George Paili,

Ampattil House,    

Peringasseri P.O.,

Kattikkayam, Udumpannoor, Idukki.

(By Adv:  K.M. Sanu)

And

Opposite Parties                                          :   1.  The Manager,

       Popular Mega Motors Ltd.,

       Pala Road, Thodupuzha,

       Thodupuzha P.O., Idukki.  

       (By Adv:  Babichen V. George)

  2.  The Manager,

       Tata Motors Ltd.,

       Pune.  

       (By Adv:  V. Krishna Menon)

  3.  The Manager,

       Tata Motor Finance,

       Velloorkkunnam P.O.,

       Muvattupuzha.

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

Case of the complainant is that,

        Complainant purchased a taxi IRIS vehicle from the authorised dealer of 1st opposite party manufactured by 2nd opposite party in the month of November, 2013.  At the time of purchase, 1st opposite party assured that the vehicle would give a mileage of 33.5 km/ltr and the vehicle is having warranty for a period of one year from the date of purchase or 36000 km whichever is earlier.  The complainant averred that the vehicle was delivered by the 1st opposite party without having its top sealing and side covers.  Seats are not fit for use.  He got only a mileage of below 20 km/ltr instead of 33.5 km/ltr as 

      (cont.....2)

-  2 - 

promised by 1st opposite party.  Within one month of purchase of the vehicle, its  starting shaft showed complaint and if at all it is rectified by the 1st opposite party same problem repeated twice.  While so, its gear system was damaged and for rectifying this defect, complainant entrusted the vehicle to the 1st opposite party 6 times.  Moreover, the engine showed excessive vibration due to that its silencer broken down and the vehicle was not in a position to move within 10 months of its purchase.  The pressure plate of the vehicle got damaged and the complainant noticed rust in different parts of the platform.  The tyre replaced when it run only 14000 km instead of 30000 km tyre life guaranteed by the 2nd opposite party.  

Complainant further stated that he purchased the vehicle with the financial aid of 3rd opposite party and remitting Rs.6850/- as EMI.  At the time of availing the loan, 3rd opposite party has promised that they are charging an amount of Rs.500/- in the EMI as the insurance of the vehicle for a period of five years.  But so far no insurance document is given by the 3rd opposite party to the complainant.  But on enquiry, complainant came to know that the 3rd opposite party remitted insurance amount only once.  But the 3rd opposite party realised an amount of Rs.500/- in each instalment.  It is an unfair trade practice.

The complainant added that the vehicle is having inherent manufacturing defect.  Being a taxi driver and fully depending from the income from this vehicle, the complainant had suffered much mental agony and financial loss due

to the recurring defect of the vehicle.   Complainant further contended that the vehicle which is discussed above, manufactured by 2nd opposite party and sold by 1st opposite party, is having poor and inferior in quality.  Against this, complainant filed this petition alleging deficiency in service and unfair trade practice against 1st and 2nd opposite parties and approached this Forum for getting reliefs such as to direct 1st opposite party to take back the vehicle and provide a new one or else direct them to pay its purchase price and also direct them to pay Rs.25000/- as compensation and Rs.4000/- as damage and also direct 3rd opposite party to deduct the amount which they collected from the complainant as insurance premium, from the balance loan outstanding.  

 

     (cont.....3)

-  3 -

        On notice, opposite parties entered appearance and filed detailed written version.  In their version, 1st opposite party contended that the complaint of less mileage was never reported to the 1st opposite party by the complainant at any point of time.  It appears that such allegation is purposefully raised by the complainant without any basis, so as to create an impression that the vehicle is defective.

Then the allegation regarding  the vehicle delivered to the complainant without top sealing and side covers, opposite parties admitted the said facilities were not provided by the manufacturer and the complainant had purchased the vehicle by knowing the fact that such articles are not part of the standard fittings of the vehicle.  This fact was intimated to the complainant at the time of sale also.  

1st opposite party further contended that the complaint of steering shaft of the vehicle was raised by the complainant to the opposite party for the first time was only on 10.6.2014, that is, after 7 months of the purchase.  On 11.9.2014, the opposite party replaced it with a modified steering shaft under warranty.  Similarly, the complaint of gear shaft was not reported to them.  However, the complainant made a complaint regarding the clutch, but on verification, no defect could be found.  Only on 6.10.2014, the opposite party could notice some complaint for the clutch and same was immediately replaced.

The opposite party further contended that after replacing the steering shaft, no complaint of engine vibration is reported.  Similarly, the complaint regarding premature of tyre replacement is also not reported to the opposite party by the complainant.  The vehicle is having no serious defects either manufacturing or otherwise.  The opposite party further contended that the vehicle was purchased by the complainant during the month of November, 2013 and by November, 2014, the vehicle has completed 37711 km which would clearly indicate that the vehicle was using extensively.  The charges collected by the opposite party were only in respect of those spare parts/works, which were not covered under warranty.  Hence the opposite party does not have any obligation to replace the vehicle or to pay any compensation to the complainant as the opposite party has not committed any unfair trade practice.

  (cont.....4)

-  4  - 

The 2nd opposite party in their reply version, specifically contended that the complainant will not come under the term consumer as defined in section 2(1)(d) of the Consumer Protection Act.  2nd opposite party further contended that the warranty offered on every vehicle manufactured by this opposite party is subject to terms and conditions of warranty as contained in the operator's service book.  Opposite party further contended that the vehicle purchased by the complainant is of the highest quality and the complainant had taken delivery of the vehicle after being satisfied with the conditions of the vehicle and its performance.  Moreover, the vehicle manufactured by the opposite party are marketed only after the prototype of the vehicle are being approved by the Automotive Research Association of India.  Each and every vehicle manufactured at the factory of this opposite party has to undergo stages of chassis frame drop, frame inversion, engine drop, cab/cowl drop and final inspection and vehicle roll out, when the quality inspection at all respective stage checks the history card and inspects to confirm all aggregate and chassis fitments between the earlier stage and subsequent stage are properly made and to record, in the event of any shortcoming, in the history card.  The vehicle as attended by the opposite party dealers/service points  fully comply with the warranties, assurances and specifications provided for it by the manufacturer regarding quality and performance of the vehicle.  Hence there cannot be any complaint or deficiency of service against this opposite party and the complainant deserves to be dismissed with cost.

The 3rd opposite party in their reply version contended that complainant availed a vehicle loan from the opposite party and agreed to remit the EMI without any default.  Out of the total amount, complainant paid only Rs.1,23,246/- till 27.5.2015.  Except the loan transaction, the 3rd opposite party is not aware of any defects of the vehicle which is stated in the complaint.  3rd opposite party further contended that the complainant, except his inability to repay the loan has no grievances against this opposite party.  The relief claimed in the complaint are also against 3rd opposite party is not liable to be granted and the averments against the 3rd opposite is mis-conceived and without any merits and liable to be dismissed with cost.

Evidence  adduced by the complainant by way of proof affidavit and documents.  Complainant produced 4 documents and marked as Exts.P1 to P4.         (cont.....5)

-  5  -

Ext.P1 is the copy of RC Book.  Ext.P2 is the copy of warranty Ext.P3(series) are the job cards and bills.  Ext.P4 is the advertisement. During the pendency of the complaint, one expert commissioner was appointed by the Forum as requested by the complainant.  Expert commissioner, Motor Vehicle Inspector, Regional Transport Office, Idukki filed detailed report and it is marked as Ext.C1.

From the defence side, one Bineesh Cheriyan, Branch Head of 1st opposite party examined as DW1 and Exts.R1 to R37 were marked.  Ext.R1 to R35 are the job cards and bills.  Exts.R36 and R37 are service history.  

        The point for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

The POINT :-The learned counsel for the complainant vehemently argued that from the date of purchase of the vehicle itself, it showed some complaint.  At the time of purchase, 1st opposite party showed the brochure of the vehicle which is printed, published and circulated by the 2nd opposite party.  The authorised person of 1st opposite party made the complainant believe that  they deliver the vehicle as it is seen in the brochure.  But the vehicle is delivered to him without top sealing and side covers, as against what they promised and also promised that the vehicle will get 33.5 km/ltr.  But the vehicle got only below 20 km/ltr in pucca road.  Till the time of filing this complaint, complainant suffered so many hardships due to the recurring defect of the vehicle and the vehicle was entrusted to the 1st opposite party so many times. Still the complaint is persisting.  As a taxi driver, the whole family of the complainant depending the income from this vehicle.  Most of the days, the vehicle kept idle in the workshop of 1st opposite party.  Due to that, the complainant suffered much mental agony and financial loss.  All these things are happened due to the inherent manufacturing defect of the vehicle.  Hence opposite parties are liable to compensate the complainant adequately.

  On the other hand, the learned counsel for opposite parties 1 and 2 argued that the complainant had purchased the above vehicle after fully knowing the facts and the standard vehicle specification accessories  and fitments and 

     (cont.....6)

-  6  -  

physically seeing the vehicle.  Complainant had purchased the vehicle after knowing that top sealing and side covers were not a part of the standard fittings of the vehicle.  Further submitted that all the minor complaints reported  were duly attended by the 1st opposite party to the satisfaction of the complainant.  The complainant had not suffered any difficulty on account of any inherent defect in the said vehicle, as the vehicle was in good condition and the expert noticed no defect in the vehicle.  Hence there is no deficiency in service or unfair trade practice on the part of opposite parties and opposite parties are no way liable to compensate the complainant.

        We have considered the rival contentions and gone through the documents on record and deposition of the witnesses carefully.  

We have given thoughtful consideration to the facts in this case.  It is pertinent to note that the complainant purchased the vehicle from 1st opposite party, the authorised distributor of Tata vehicles in the month of November, 2013 and it was duly registered with No.KL-38D-1923.  Being a taxi driver, the complainant purchased this vehicle  to earn his livelihood.  He happened to purchase the vehicle by attracting  the advertisement Ext.P4, of the vehicle which is circulated by the opposite parties.  In this brochure, it is specifically stated that the vehicle will get 33.1 km/ltr and the photo of the vehicle in the advertisement shows filly covered with rexin. The complainant added that the 1st opposite party delivered the vehicle without having top sealing and side covers and it is against what they showed in the advertisement.

Both sides produced so many documents to establish their version.  As per records produced by 1st opposite party, it is seen that the vehicle was sold in the month of November, 2013. Thereafter on 27.52014, the vehicle was reported for fuel leakage due to fuel pump broken and this defect was cured by the 1st opposite party.  Thereafter on 5.7.2014, the vehicle reported for silencer sound vibrating  and the defect cured and returned the vehicle to the complainant. Likewise so many times the vehicle was entrusted to the opposite party for one or other complaint and in all these times, the 1st opposite party rectified the defect.  The service report and job cards 37 in number are produced and marked from the defence side will clarify the defect of the vehicle.    (cont.....7)

- 7  - 

On further examination, the  expert noticed that the running board of the vehicle is patched at driver's cabin both left and right corners.  Both doors at front side was rusted here and there.    At the same time, we cannot discard the version of the complainant that he entrusted the vehicle so many times within a short period of 10 months and it is  evident from the exhibits which are produced by both sides.  The  complainant  is well satisfied with the work done by the 1st opposite party in each and every time.  No doubt it is very clear and admitted fact that each and  every time the opposite party handled the defects  with  due care and to the satisfaction of the complainant.  It is also  admitted that the complainant  had to suffer a lot by purchasing the vehicle from the 1st opposite party manufactured by the 2nd opposite party.  Then regarding the defects occurred to the vehicle whether it is minor or major is only due to manufacturing defect of the vehicle.  After lodging this complaint also, the complainant entrusted the vehicle to the opposite party several times for curing  various defects.  

From Ext.36 service history, it is seen that the vehicle was reported to the 1st  opposite party either for  periodical service or for curing other major or minor defects for more than 30 times.

By going through the entire evidence in total, we come to a conclusion that, no evidence is produced by the complainant to prove that whether any major engine work was done to the vehicle.  Regarding low mileage  and  not providing top sealing and side covers, no substantiating evidence is produced by the complainant to corroborate his version, moreover, as per  the Ext.C1, the vehicle is having a high mileage at the time of conducting inspection by the expert.  

Since there is no evidence is produced against the 3rd opposite party regarding the realisation of insurance premium alongwith the loan instalments, the prayer against the 3rd opposite party dismissed.

Hence on the basis of the above discussion, the complaint allowed in part.  The Forum directs the 2nd opposite party, the manufacturer, to pay an amount of        (cont.....8)

- 8  - 

Rs.25,000/- as compensation and Rs.5000/- as litigation cost to the complainant, within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest pre annum from the date of default, till its realisation.                            

                     Pronounced in the Open Forum on this the 27th day of  April, 2018

 

Sd/-

              SRI. S. GOPAKUMAR, PRESIDENT

  Sd/-

SRI. BENNY. K., MEMBER 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1              -  George Paily.

On the side of the Opposite Party :

DW1              -  Bineesh Cherian.

Exhibits :

On the side of the Complainant :

Ext.P1            -   copy of RC Book.  

Ext.P2           -  copy of warranty card.  

Ext.P3(series) -  Job cards and bills.

Ext.P4            - advertisement.

Ext.C1          -  Commission Report.

On the side of the Opposite Party :

Exts.R1 to R35 -   job cards and bills.

Exts.R36 & 37  -  service history.

 

 

        Forwarded by Order,

 

 

           SENIOR SUPERINTENDENT