DATE OF FILING : 4.2.2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of March, 2017

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.51/2014

Between

Complainant : Joshi A. Chemparathi,

Chemparathickal House,

Muthalakkodam P.O.,

Thodupuzha, Idukki.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. The Manager,

Datum Motors Pvt. Ltd.,

Market P.O., Muvattupuzha.

(By Adv: K.S. Arundas)

2. The Manager,

Tata Motors,

Pune.

(By Adv: V. Krishana Menon

& Sibi Thomas)

1. 1. 1. 1. 1. 1. 1. 1. 1. 3. The Manager,

                              RF Motors,

Vengalloor, Thodupuzha, Idukki.

(By Adv: Smiju K. Das)

4. The Branch Manager,

United India Insurance Co. Ltd.,

Thodupuzha Branch, Idukki.

(By Adv: K. Pradeepkumar)

1. 1. 1. 1. 1. 1. 1. 1. 1. 5. Faisal, S/o. Hassan Maitheen,

                              Managing Director, Datum Motors,

Peringadakkattu House,

Ruby Manzil,

Edarikkodu, Malappuram.

O R D E R

SRI. S. GOPAKUMAR, PRESIDENT

The case of the complainant is that,

Complainant entrusted his Tata Manza car bearing Reg. No.KL-38A-5296 to the 1^st opposite party on 9.9.2013 for repairing the defect such as the car

(cont.....2)

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emitting over smoke and consumes over engine oil. The vehicle is having extended warranty to the extent of 75000-150000 km. At the time of noticing defects, the odometer reading was 86,281 km. At the time of purchasing the car from 3^rd opposite party, the opposite parties guaranteed warranty upto 1 lakh km, and extended warranty upto 150000 km. For covering extended warranty, complainant paid additional premium also. At the time of entrusting the car to 1^st opposite party, the 1^st opposite party promised that they will repair the car with free of cost, since the car cover extended warranty and return the car within 20 days in showroom condition. Thereafter so many times, complainant approached the 1^st opposite party, but 1^st opposite party was not turned up to return the car after curing the defect. Complainant further submitted that as a business man, the complainant is depending other vehicles for his personal use, by which he forced to pay a huge amount as taxi charges and the 1^st opposite party is bound to compensate the complainant and also bound to return the car by curing the defect at free of cost. Hence the complainant approached this Forum for getting the relief such as to direct 1^st opposite party to return the car in a road worthy condition and also directs the opposite parties to pay an amount of Rs.125000/- as compensation and Rs.4000/- as cost. In the mean while as per the application of complainant, additional opposite parties 3 to 5 were impleaded.

On notice, opposite parties entered appearance and filed detailed version separately.

In their version 1^st opposite party admitted the fact that the complainant entrusted the vehicle with the above said opposite party and also noted the extended warranty. After opening a job card, the 1^st opposite party noticed the defects and the same was communicated to the insurance company (5^th opposite party), when the complainant availed extended warranty. But on inspection, the insurance company denied the full claim. The matter of denial of claim by the additional 5^th opposite party intimated to the complainant forthwith by the 1^st opposite party and also demanded the cost of repairing charges. The 1^st opposite party further contended that, they had not promised to repair the vehicle at free of cost, moreover 1^st opposite party contacted the complainant many times for remitting the repair charges, but the complainant is not turned up. The 1^st opposite party further contended that as there is no consideration paid as promised, the complainant will not come within the purview of consumer. If the complainant remit the repair charges, or comply this, the complainant availed extended warranty sanctioned this claim, 1^st opposite party can repair the vehicle in a short term. Hence there is no deficiency in service from the part of 1^st opposite party. (cont.....3)

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The 2^nd opposite party, in their version, contended that, it is understood that the complainant had entrusted the vehicle with 1^st opposite party for repair on 9.9.2013. The person who brought the car had been informed that, if the necessary repairs are to be carried out under extended warranty, the same can be done only if the company that provided the extended warranty approved the same. But on inspection by the said company, they had for reason best known to them denied the full claim of the complainant and the same was communicated to the complainant by the opposite party, on the same day itself. 2^nd opposite party further submitted that, it is understood that the complainant had been specifically informed by the 1^st opposite party that either agree to remit the entire repair charges, or the company that the complainant availed extended warranty approve the full claim so as to enable the 1^st opposite party for undertake repair. It is learned that the complainant had not agreed to have the repair carried out on payment basis. Hence the 1^st opposite party cannot be held liable for the same.

2^nd opposite party further submitted that, there is no allegations regarding any manufacturing defect in the vehicle and hence the complaint is unnecessarily proceeded against the 2^nd opposite party.

The 3^rd opposite party in their version contended that, the petitioner entrusted the vehicle for the alleged repair with the 1^st opposite party. The 3^rd opposite party is not aware of the facts of the case and the only role of the 3^rd opposite party is that they sold the alleged vehicle to the complainant. The manufacturing company is liable to give warranty.

5^th opposite party is the person who is running the 1^st opposite party workshop now and he repeated the contentions of the 1^st opposite party.

Complainant and his power of attorney holder was examined as PWs1 and 2. Exts.P1 to P8 were marked. Ext.P1 is the copy of RC Book. Ext.P2 is copy of insurance policy for the period from 3.5.2013 to 2.5.2014. Ext.P3 is the policy copy of extended warranty. Ext.P4 is job card dated 9.9.2013. Ext.P5 is power of attorney. From the defence side, Ext.R1 and R2 produced and marked. Ext.R1 is the job card workshop copy. Ext.R2 is copy of legal notice.

Heard both side.

The point that arose 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 ? (cont.....4)

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The POINT :- We have heard in detail and gone through the records. It is an admitted fact that the complainant entrusted his vehicle to the 1^st opposite party for rectifying some major defects, on 9.9.2013. The 1^st opposite party after thorough check up, opened Ext.P4 job card and the defects of the vehicle is noted therein. As per Ext.P4 job card customer copy, defects noted are : “engine oil consumption high. Engine oil getting empty within 5000 km run. Excess smoke on acceleration”. The recommended job works also specifically stated here in. Here the vehicle was entrusted to the 1^st opposite party on 9.9.2013. By perusing Ext.P3 copy of policy for cover note number 48155126, we can see that as per this policy, risk period was 4.5.2012 to 3.5.2014. Risk mileage is 75000 – 150000, the policy sold by RF Motors Pvt. Ltd., Kochi. This policy was issued on the date of sale of the vehicle, that is, on 4.5.2010. It is surprising that non of these documents are challenged by any of these opposite parties. It is also pertinent to note that the opposite parties 3 to 5 are impleaded as additional opposite parties. The 3^rd opposite party is the authorised dealer of Tata Motors. 4^th opposite party is the insurance company who issues Ext.P4 insurance policy and Ext.P5 is the person who is running the authorised workshop of Tata Motors, where the vehicle was entrusted to him and he opened the job card. 1^st and 5^th opposite parties are the one and same person. As per the written reply of 1^st and 5^th opposite parties, it is an admitted fact that the alleged vehicle is having some defect which is noted in Ext.P4 job card and is having extended warranty for a period of two years starting from 4.5.2012 to 3.5.2014 and risk coverage of 75000 kms to 150000 kms. Admittedly, this vehicle shown the defect in this period at a running kilometre of 86281. As per the written version, 1^st and 5^th opposite parties stated that, they informed the matter to the 4^th opposite party, the insurance company and they are not admitted the claim. Hence they are not liable to repair it at free of cost.

Here no evidence is produced by the opposite parties 1 and 5 to convince the Forum that, how they intimated the claim to the 4^th opposite party, insurance company and on what ground they rejected the claim.

Eventhough 1^st and 5^th opposite parties filed detailed reply version, no evidence is adduced by them either orally or documentary to rebut the allegations levelled against them by the complainant. As per Ext.P3, RF Motors sold the extended warranty and this matter also not denied by the 3^rd opposite party, RF Motors, who sold the alleged vehicle.

By going through the evidence adduced by the complainant and his power of attorney, the Forum convinced that the alleged vehicle was detained in the

(cont.....5)

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custody of 1^st opposite party for so many days and as a businessman, the complainant had suffered a lot. In the meantime, 1^st opposite party shut down the workshop and through a legal notice, he informed the matter to the complainant and directed him to take back the vehicle as such condition. This also caused much mental agony to the complainant.

At the time of purchase of the vehicle, the complainant forced to pay an additional premium for extended warranty only on the undue influence and pursuance of 3^rd opposite party the RF Motors, on the strong belief that it will cover the damages of the vehicle within a stipulated period and stipulated running kms. But opposite parties 1 to 3 and 5 handled this case carelessly and negligently. This act of the opposite parties are sheer deficiency in their service and had not been taken any effort to compensate the complainant eventhough he is having valid extended warranty at the time of defect noted in the vehicle. Hence opposite parties are firmly and legally bound to compensate the complainant adequately.

In the view of the above discussion, Forum directs 3^rd and 5^th opposite parties, jointly to pay an amount of Rs.1 lakh as compensation to the complainant and also to pay an amount of Rs.4000/- as litigation cost, within 30 days from the date of receipt of a copy of this order, failing which the amount Rs.1 lakh shall carry 12% interest per annum from date of default, till its realisation.

Pronounced in the Open Forum, on this the 30^th day of March, 2017

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SRI. BENNY. K., MEMBER

(cont.....6)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Joshi A. Chemparathi.

PW2 - Sanish Joy.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - copy of RC Book.

Ext.P2 - copy of insurance policy for the period from 3.5.2013 to 2.5.2014.

Ext.P3 - policy copy of extended warranty.

Ext.P4 - job card dated 9.9.2013.

Ext.P5 - power of attorney.

Ext.P6 - policy schedule cum certificate of insurance.

Ext.P7 - policy contract details.

Ext.P8 - job card.

On the side of the Opposite Party :

Ext.R1 - job card workshop copy.

Ext.R2 - copy of legal notice.

Forwarded by Order,

SENIOR SUPERINTENDENT