IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 12th day of May, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C. No. 140/2013 (Filed on 05.11.2013)
Between:
Ahammad. O.K.,
Ajmal Manzil,
Vaipur P.O., Pin – 689 588,
Pathanamthitta District. … Complainant.
(By Adv. T.S. Radhakrishnan Nair)
And:
- The Manager,
Nippon Motor Corporation Pvt. Ltd.,
M.C. Road, Nattakom P.O.,
Pin – 686 013.
- The Managing Director,
Toyota Kirloskar Motor Pvt. Ltd.,
Bidadi Industrial Area,
Bidadi P.O., Pin – 562 109,
Ramanagara District.
(By Adv. Frijo. K. Sundaram)
- The Manager,
Nippon Motor Corporation Pvt. Ltd.,
Thukalassery, M.C. Road,
Thiruvalla – 689 101. … Opposite parties.
(By Adv. R. Chandran for Opps. 1 & 3)
ORDER
Smt. K.P. Padmasree (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Brief facts of the case is as follows: Complainant purchased an Etios G.D. car from the first opposite party on 27.07.2012. Second opposite party is the manufacturer and first and third opposite parties are the service centres of the second opposite party. Complainant is entitled to get after sale service from the first opposite party as per the conditions stipulated in the owner’s manual provided by the opposite parties at the time of the purchase of the vehicle.
3. On 26.07.2013 the vehicle was put up for its yearly service with the first opposite party and after servicing the vehicle was handed over to the complainant. But on arrival at the residence of the complainant, he noticed that all the five tyres of the car was replaced by the service personal employed in the service centre attached to the workshop of the first opposite party. The matter reported to the opposite parties immediately on noticing the same. The representatives of the first opposite party inspected the vehicle and realized that the numbers noted in the owner’s manual kept with the complainant and tyre number of the vehicle including the stepney are not matching. According to the complainant, the above said act of the opposite parties is a clear deficiency in service which caused financial loss and mental agony to the complainant. A notice was served to the opposite parties by the complainant demanding to replace the original tyres in the vehicle. But they sent reply notice denying the acts. Hence this complaint for getting the original tyres noted in the owner’s manual along with cost and compensation of Rs. 1,00,000/- under various heads.
4. Opposite parties entered appearance and filed their version.
5. Opposite parties 1 and 3 filed their version jointly with the following contentions: These opposite parties admitted the purchase of Toyota Etios by the complainant. But the allegation of the complainant that at the time of service, the service personal replaced the five tyres is not correct. The allegation that the representative of the first opposite party inspected the vehicle and realized that the numbers noted in the owner’s manual kept with the complainant and tyre number of the vehicle including stepney are not matching is not correct. The numbers noted in the owner’s manual is the make and batch number of the tyres. The said numbers are 23 12, 23 12, 23 12, 24 12 and 24 12. While noting the said numbers in the manual, the person who made the entry has entered it as 23 12 23(ditto), 23(ditto), 24(ditto), 24(ditto). The manual marking of the ditto was ,made as 23 12, 23,, 23,, 24,, 24,, which is purposefully interpreted as 23 12, 23 11, 23 11, 24 11 and 24 11 (the markings intended ditto (,,) interpreted as eleven) by the complainant while the complaint was made by him regarding the change of tyres. This fact as stated above was informed to the complainant at the time of inspection. The service personals of the first opposite party have not removed the original tyres of the vehicle when the vehicle was put up for yearly service on 26.07.2013 as alleged in the petition. The complainant has no cause of action against the opposite parties as alleged.
6. Further, there is no territorial jurisdiction to entertain this complaint before this Hon’ble Forum. The vehicle was purchased from the first opposite party and the service also done by the first opposite party. The complainant is not entitled to file this petition before the Hon’ble Forum for the simple reason that there is a service centre branch within the territorial jurisdiction of this Forum. With the above contentions, opposite parties 1 and 3 prays for the dismissal of the complaint with their cost.
7. Second opposite party filed their version with the following contentions: This complainant is filed before the Forum is without jurisdiction. In the complaint itself it is clear that the cause of action has taken place at Kottayam. The relationship between the first and second opposite parties is principal to principal basis. The second opposite party is not liable for the acts and omissions of the first opposite party, committed during the service of the vehicle. Moreover, the complainant has not made out any act of deficiency in service solely or jointly attributable to second opposite party and therefore the complaint filed by the complainant against second opposite party is liable to be dismissed in limine.
8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint is maintainable and whether it can be allowed or not?
9. The evidence of this complaint consists of the deposition of PW1, DW1, Exts. A1 to A4 and B1. After closure of evidence, both sides were heard.
10. The Point: The allegation of the complaint is that he had purchased an Etios G.D. car from the first opposite party. On 26.07.2013 when the vehicle was put up for yearly service with the first opposite party and after servicing, the complainant noticed that the five tyres of the vehicle were replaced by the service personal employed in the service centre attached to the workshop of the first opposite party. The matter was reported to the opposite parties immediately. They have inspected the vehicle and realized that the numbers noted in the owner’s manual kept with the complainant and tyre number of the vehicle including the stepney are not matching. Complainant sent a notice to opposite parties demanding to replace the original tyres in the vehicle. But they sent reply denying the allegation. The above said act of the opposite parties is a clear deficiency in service, and opposite parties are liable to the complainant.
11. In order to prove the case of the complainant, complainant filed proof affidavit in lieu of his chief examination along with 3 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A4. Ext. A1 is the notice issued by the complainant on 03.09.2013 to the first opposite party. Ext. A2 is the reply notice dated 13.09.2013 issued by the first opposite party’s counsel to the complainant. Ext. A3 is the owner’s manual and warranty booklet of Toyota Motor Corporation issued to the complainant. Ext. A3(a) is the additional information card of Ext. A3. Ext. A4 is the tax invoice issued by the first opposite party in the name o the complainant and it is marked through DW1.
12. On the other hand, the contention of the opposite parties is that there is no territorial jurisdiction to entertain this complaint before the Forum. The vehicle was purchased from the first opposite party and the service was also done by the first opposite party. On getting the complaint from the complainant, opposite parties inspected the vehicle. The allegation that five numbers noted in the owner’s manual and the tyre numbers are not matching is also not correct. The numbers noted in the owner’s manual is the make and batch number of the tyres. The said numbers are 23 12, 23 12, 23 12, 24 12 and 24 12. The manual marking of the ditto was made as 23 12, 23 11, 24”, 24”, 24” which is purposefully interpreted as 23 12, 23 11, 23 11, 24 11 and 24 11 by the complainant while the complainant was made by him regarding the change of tyres. At the time of inspection, the above said fact was informed to the complainant. That the first opposite party has not removed or replaced the original tyres of the complainant’s vehicle with any other tyres as alleged in the complaint. Therefore, there is no deficiency in service from their part.
13. In order to prove the case of the opposite parties, one witness was examined as DW1 on the basis of his proof affidavit and documents produced were marked as Ext. B1. Ext. B1 is the job order issued by the first opposite party in the name of the complainant.
14. On the basis of the facts at hand, evidence adduced and arguments advanced by both sides, we have perused the entire evidence on record. The questions for consideration is whether the complaint preferred by the complainant is maintainable and whether there is any deficiency in service?
15. The first question to be considered whether this Forum has territorial jurisdiction to entertain this complaint? Opposite parties argument is that no part of cause of the action had occurred within the territorial jurisdiction of Pathanamthitta and therefore this Forum could not entertain this complaint. The contention of the opposite parties is that the complainant purchased the vehicle from first opposite party and brought it for service to first opposite party at kottayam. The complainant also admitted the same and there is no pleading in the complaint stating the relationship between the complainant with the third opposite party. The complainant alleged that the third opposite party is the branch office of the first opposite party and nothing was brought into evidence to prove the same. The second opposite party categorically denied the relationship between first opposite party and third opposite party and they stated that the first opposite party have no branch office at Thiruvalla. The opposite parties contended that this Forum have no jurisdiction as the cause of action arosed at Kottayam and the complainant is not entitled to file this complaint before this Forum. The complainant failed to establish the relationship between the complainant and third opposite party or to establish his liability in the said cause of action. The third opposite party cannot be fastened with the liability to bring it within the ambit to attract the provisions of the Act. We have carefully perused the document produced and marked by the complainant as Ext. A1, which is a notice sent by the complainant to first and second opposite parties. It is seen that at the time of issuance of Ext. A1 notice, the third opposite party was not in picture and he was arrayed as an additional party at the time of institution of this complaint, only for creating the territorial jurisdiction of this Forum. In the said matter ‘cause of action’ is – cause of action which gives occasion for and forms the foundation of the suit. In our view, no part of the cause of action arose at Pathanamthitta. In the present case admittedly the booking, purchase as well as the service of the vehicle took place at Kottayam. Thus no part of the cause of action arose in Pathanamthitta District.
16. Secondly, we are dealing with the issue, whether there was any deficiency of service attracting the liability under Consumer Protection Act 1986?
17. There is no dispute with regard to the sale and purchase of vehicle and the relationship between first and second opposite parties with the complainant. On the contrary, the opposite parties raised a contention that there is no relationship with the complainant and third opposite party. On going through the oral testimony and the evidence of the complainant, it can be seen that his only complaint is with regard to the change of tyres. It is pertinent to note that the complainant has no case that the changed tyres are inferior quality or defective to the one which was originally fitted with the car and thereby he caused loss, injury or hardship. His claim is based on the difference in the numbers noted in the tyre with the owner’s manual. In the cross examination also he categorically stated that “എന്റെ പരാതി എന്റെ വാഹനത്തിന്റെ 5 ടയറുകളും സര്വ്വീസ് സെന്ന്റുകാര് മാറി എന്നതാണ്”. On the other hand, the first opposite party categorically stated that there were no change in the tyres and their service personals would not changed the tyres as alleged by the complainant. They further contended that the numbers of the tyres fitted with the car at the time of delivery are 23 12, 23 12, 23 12, 24 12 and 24 12 and while noting the same in the owner’s manual, the person who made the entry as 23 12, 23”, 23”, 24”, 24” which are only ditto and not eleven. The complainant doubted with the marking intended as ditto and interpreted as eleven. The stand of the first opposite party is constant at the very beginning and their contention seems believable also. The complainant has not a case that with an ulterior motive or for a gain, the first opposite party changed the original tyres and fitted defective or inferior quality tyres. In this case, the complainant failed to establish the ulterior intention of the first opposite party in changing the original tyres. The job card and the bill for the servicing on 26.07.2013 is not produced. If it was produced, the works done on that day can be ascertained and whether they have done any works in connection with the tyres also can be ascertained. He also failed to prove that the alleged change of the tyre put him to any actual loss. Hence we cannot find any deficiency in service from the part of the opposite parties. In the circumstances, we find that the complainant has failed to prove his case against the opposite parties. Therefore, this complaint is not allowable.
18. In the result, this complaint is dismissed with no cost.
Declared in the Open Forum on this the 12thday of May,
2014.
(Sd/-)
K.P. Padmasree, (Member)
Sri. Jacob Stephen (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Ahammed.O.K.
Exhibits marked on the side of the complainant:
A1 : Notice issued by the complainant on 03.09.2013 to the
first opposite party.
A2 : Reply notice dated 13.09.2013 issued by the first
opposite party’s counsel to the complainant.
A3 : Owner’s manual and warranty booklet of Toyota Motor
Corporation issued to the complainant.
A3(a): Additional information card of Ext. A3.
A4 : Original bill dated 26.07.2013 issued by the first opposite
party.
Witness examined on the side of the opposite parties:
DW1 : Sreeraj. K.N.
Exhibits marked on the side of the opposite parties:
B1 : Job order issued by the first opposite party in the name of
the complainant.
(By Order)
(Sd/-)
Senior Superintendent
Copy to: (1) Ahammad. O.K., Ajmal Manzil, Vaipur P.O.,
Pin – 689 588, Pathanamthitta District. (2) The Manager, Nippon Motor Corporation Pvt. Ltd.,
M.C. Road, Nattakom P.O., Pin – 686 013.
- The Managing Director,Toyota Kirloskar Motor Pvt. Ltd., Bidadi Industrial Area, Bidadi P.O., Pin – 562 109,
Ramanagara District.
- The Manager, Nippon Motor Corporation Pvt. Ltd.,
Thukalassery, M.C. Road,Thiruvalla – 689 101.
(5) Stock file.
