DATE OF FILING: 24.01.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 25th day of July, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDU SOMAN MEMBER
C.C No. 22/2011
Between
Complainant : K.P.Shameer,
Managing Partner,
M/s. Seemas Wedding Collections,
Pala Road, Thodupuzha,
Idukki District.
(By Adv: K.M.Sanu)
And
Opposite Parties : 1. The Manager,
Mercedez Benz India Private Limited,
E3, MIDC Chakan Phase III, Chakan Industrial Area,
Kuruli & Nikhoje,
Pune – 410501.
(By Adv: C.K.Babu)
2. The Manager,
Sundaram Motors,
Division of T.V Sundaram Iyangar &
Sons Limited,
370, Mettupalayam Road,
Coimbatore.
(By Adv: C.K.Babu)
3. The Manager,
Hot Wheels Tyres,
Muvattupuzha Road,
Thodupuzha.
(Authorised Dealer, Continental Tyres)
(By Adv: S.Praveen)
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant is the Managing Director of M/s.Seemas Wedding Collections, Thodupuzha, having textile show rooms at different places, and now he is residing at his show room at Thodupuzha. The complainant purchased a 'BENZ E 250' car from the 2nd opposite party on 1.10.2010 for Rs.48 lakhs. At the time of purchase, the opposite party offered an unlimited warranty of 300000 Kms for the vehicle and 50000 Kms for the tyre. The vehicle was fitted with "Modi Continental" tyres. The 3rd opposite party is the authorised dealer of the Modi continental tyres at Thodupuzha. The complainant produced the vehicle for all periodical services before the opposite parties and was using the vehicle with reasonable care. After covering 5000 Kms, nearly after one month of its purchase, while the complainant was driving the vehicle to Thodupuzha one of the front tyres blowed when it passed through Bye Pass Road, Thodupuzha and the tyre became useless. The matter was informed to the opposite parties and demanded for replacement of the tyre as per the warranty. But they were not ready to do so. The tyres fitted with the car was inferior in quality. So it damaged below 5000 Kms. The opposite party has duty bound to replace the damaged tyre with free of cost as per the warranty. After the incident the complainant contacted the opposite party and their service procedure M/s.Rajashree Motors, Cochin for a remedy and a complaint was sent through E-mail and thereafter a legal notice was also sent on 29.12.2010. But the opposite party took an adamant stand and denied the warranty. So the complainant suffered much mental agony, hardships and financial loss. The tyre is having a market value of Rs.28,000/-. So this petition is filed for getting replacement of the tyre with cost and compensation.
2. As per the written version filed by the Ist opposite party, it is admitted that the complainant purchased the vehicle from the 2nd opposite party, which has its show room at Coimbatore. Thus neither the Ist opposite party nor the 2nd opposite party has its registered office at Idukki. The complainant purchased his vehicle from the 2nd opposite party at Coimbatore against payment of applicable price. So no cause of action arose at Idukki and this Forum has no jurisdiction to entertain this case.
The components like tyres and batteries, manufacturer passes on the warranty benefit provided by the supplier of these parts. As per clause 3 of the standard warranty terms and conditions, it is written as “what is not covered”- Batteries, music system and tyres have their respective warranties provided directly by the respective manufacturers. The opposite party never gives a warranty of 50000 Kms. for the tyres of the vehicle. No tyre manufacturer gives such a warranty since a tyre may be damaged at any time due to external impact and also it is based on usage/operations related. In the E-mail sent by the complainant to the local dealer, he has admitted that he ran on a cutter which resulted in damage to one of the tyres. So the complainant is guilty of suppression of material fact and has not approached the Forum with clean hands. Without prejudice to the above, the Ist and 2nd opposite parties are jointly offered 50% of the cost of the tyre to the complainant. But the complainant has not agreed the same. So the Ist opposite party is not liable to pay any compensation.
3. As per the written version filed by the 2nd opposite party, it is stated that the complaint did not arise within the jurisdiction of this Forum. The 3rd opposite party is clandestinely arrayed as a party to this litigation for the purpose of getting jurisdiction under this Forum. The complaint is bad for mis-joinder and non-joinder of necessary parties. The manufacturer of the tyre is not made a party to this litigation. The opposite party never assured a warranty of 50000 Kms. for the tyres. Nobody can give such a guarantee since wear and tear of tyres depend on various factors like speed and breaking of the vehicle, condition of the road, air pressure in the tyre etc. The 3rd opposite party has no role in this litigation. The 3rd opposite party is not the authorised dealer of Modi tyres. The allegation of damage of the tyre at Bypass Road, Thodupuzha is stoutly denied. Had it been true, the petitioner would have immediately gone to the 3rd opposite party and would have availed some service. There is no whisper of any such incident in the complaint. Immediately after the incident of damage of the tyre, the complainant reported the matter at Rajashree Motors, Cochin and approached them for service. There he told that the car jumped into a gutter forcefully and consequently the tyre was damaged. However service was extended from Rajashree Motors, Cochin. There the petitioner had no demands for any damage. The demand for damages is an after thought. In the E-mail sent by the complainant he wrote “my car run on a cutter and the car tyre was blowed up, it was not yet touched 5000 Kms. now” and the version cannot be disbelieved. The tyre fitted to the car was of very good quality and is one among the best in the market. The damage was caused due to the negligent drive of the petitioner. The petitioner is making an attempt to shift the liability upon the Ist and 2nd opposite parties for which he is making unsustainable claims. The side wall of the affected tyre had a cut due to external impact. This cut might have caused due to running the car over a cutter or gutter. This damage is due to extraneous factors and so it cannot be attributed to any manufacturing defects and is not subject to any warranty conditions. However as a gesture of customer services the Ist and 2nd opposite parties offered 50% of the cost of the tyre to the complainant. But the complainant is not willing to accept the offer. The complainant has filed this complaint as an experimental. Hence the petition may be dismissed.
4. As per the written version filed by the 3rd opposite party, it is stated that the 3rd opposite party is a total stranger and having no connection whatsoever with the complainant. It is denied that the 3rd opposite party is the authorised dealer of Continental tyres. This opposite party is the authorised dealer of Appollo, J.K and Mitchelin tyres at Thodupuzha and not dealing in the sales or services of modi-continental tyres. Neither the complainant nor anyone else have contacted or approached this opposite party in connection with the said alleged incident. This opposite party neither being the retailer or service provider to the complainant had been unnecessarily dragged into this complaint with ulterior intentions. This opposite party is not in receipt of any legal notice as alleged. The complaint is bad for non-joinder and mis-joinder of parties. This opposite party is vexatiously dragged into this litigation without any bonafides and as such this opposite party is entitled to get compensatory costs from the complainant.
5. The point for consideration is whether there was any deficiency from the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
6. No oral evidence adduced by both the parties. Heard both sides. Exts.P1 to P7(series) marked on the side of the complainant.
7. POINT NO.1 :- The complainant purchased a Mercedes Benz car from the 2nd opposite party on 1.10.2010. Ext.P1 is the copy of the tax invoice for the purchase of the vehicle for an amount of Rs.41,55,638/-. Ext.P2 is the copy of the Certificate of Registration. At the time of purchase of the vehicle the opposite party offered a warranty of 300000 Kms. to the vehicle. Ext.P3 is the copy of the warranty details of the vehicle issued by the 2nd opposite party at the time of purchase of the vehicle. While the complainant was driving the vehicle to Thodupuzha, nearly within one month of the date of purchase of the vehicle, one of the front tyres of the vehicle blowed when it reached at Bypass Road, Thodupuzha and the tyre became useless. At the time of the incident, the vehicle covered only 5000 Kms. So the complainant approached the service procedure of the opposite party M/s.Rajashree Motors, Cochin for remedy. But the opposite party denied the same. So a legal notice was sent to the 2nd opposite party by the complainant dated 29.12.2010, office copy of the same is marked as Ext.P4. The opposite party sent a reply notice accepting the damage of the tyre and offered 50% of the cost of the tyre as a gesture of customer service, which is marked as Ext.P5. Again an E-mail message was sent by the complainant to the opposite party for getting compensation and also stating that the offer of 50% was not acceptable to him. Copy of the same is marked as Ext.P6(series). Again two E-mail replies were sent by the opposite party and offered 50% of the cost of the tyre, copy of which is marked as Ext.P7(series).
As per the complainant, he purchased the vehicle by paying Rs.48 lakhs. At the time of purchase of the vehicle, the opposite party offered a warranty of 300000 Kms. to the vehicle and 50000 Kms to the tyres. But the front tyre of the car was blowed while he was driving the vehicle through Bypass Road, Thodupuzha. As per Ext.P3 warranty conditions produced by the complainant, it is stated that
Vehicles supplied by MB India(Mercedez Benz India Private Limited) are warranted to be free from defects in material and workmanship and are covered under this warranty for a period of 24 months commencing from the date of first registration or date of sales invoice/delivery note – whichever comes earlier - without mileage limitation.
(2)This warranty shall, at the option of MB India, cover and be limited to either repair of goods supplied or replacement of parts which MB India recognizes as defective.
(3)For the parts replaced during such repair, the same warranty applies until the end of the MB India warranty period of the vehicle as stipulated herein.
So the vehicle is having a warranty for a period of 24 months as per the warranty issued by the MB India and the cost of the tyre purchased for the vehicle was Rs.28,000/- and the opposite party is liable to pay Rs.28,000/- as compensation.
As per the opposite party, certain parts of the vehicle are not covered by warranty conditions. As per Ext.P3 warranty conditions produced by the complainant, it is stated that what is not covered. As per Clause 3, batteries, music system and tyres have their respective warranties provided directly by the respective manufacturers/suppliers(please contact MB India authorised workshop for further details). So the warranty of the tyres of the vehicle are not providing directly by MB India Limited and the respective warranties provided directly by the respective manufacturers/suppliers and for further details, the customers can contact MB India Limited. So warranties of the tyres are providing by the manufacturers of the respective parts. As per the written version filed by the 2nd opposite party, the complaint is bad for mis-joinder and non-joinder of necessary parties. The manufacturer of the tyres is not made a party to this litigation.
POINT NO.2 :- The other dispute raised by the opposite parties in their written version is that this Forum is not having jurisdiction to entertain this complaint. The complainant purchased the vehicle from the 2nd opposite party at Coimbatore by payment of applicable price. Neither the Ist opposite party nor the 2nd opposite party has its registered office/Head Office or branch office at Idukki. So no cause of action arose at Idukki and this Forum has no jurisdiction to entertain the case. But as per the complainant, he is having business at Thodupuzha in the name and style M/s.Seemas Wedding Collections and he is residing near his show room at Thodupuzha. While he was driving his vehicle to Thodupuzha and when it reached at Bypass Road, one of the front tyres blowed and became useless. So the cause of action for the dispute arisen at Thodupuzha while he was driving the vehicle through Bypass Road, Thodupuzha. Opposite parties 1 to 3 never challenged these matters anywhere in their written version and the opposite parties never proved that the incident was happened in somewherelse other than at Thodupuzha. The only allegation of the 2nd opposite party is that if the contention of the complainant was true, that it was caused at Thodupuzha, the petitioner would have immediately gone to the 3rd opposite party and would have availed some service. But we think that if any incident like this has been occurred in a vehicle, which is having such a high price, the owner of the vehicle would have communicated with the authorised service centre of the vehicle and not through any other local dealer of the components of the vehicle. So the cause of action would have been arisen at Idukki and the dispute has been arised at the jurisdiction of this Forum.
POINT NO.3 :- Eventhough the complainant never produced the disputed tyre before the Forum, the 2nd opposite party as per the E-mail replies issued to the complainant as Ext.P7(series) and also with the Ext.P5 reply for legal notice issued to the complainant, it is admitted that the said tyre is having some defect and they have offered 50% of the cost of the tyre. So the incident was not challenged or disputed by the opposite parties in their written version or in their reply notices or in anywhere. The complainant purchased the vehicle by paying an amount of Rs.48 lakhs from the 2nd opposite party, Exts.P1 and P2 shows the same. A person who purchases a Mercedez Benz car by paying such a huge amount will be confident with his vehicle while driving. So the opposite party should give a minimum guarantee to the tyres and parts of the vehicle for such a costly vehicle. The complainant was driving the vehicle only through a public road at Thodupuzha and the tyre of the vehicle was blowed while it jumped into a gutter. The opposite party as per their written version disputed that the complainant was misusing the vehicle while driving through a gutter. As per the E-mail sent by the complainant, he admitted that his car run on a cutter. If it was a cutter or gutter, it was not disputed by the opposite party that he was not driving the vehicle through a public road. The opposite party never advertised like that the vehicle is not fit for driving through gutter road. So the denial of the compensation is a deficiency from the part of the opposite party. The tyre of the vehicle blowed within one month from the date of purchase of the vehicle, at that time, the vehicle was covered only 5000 Kms. The opposite party cannot avoid the complainant from giving compensation stating that the manufacturer of the tyre is the party to give compensation. A consumer by paying such a huge amount should get a service from the opposite party who provided the vehicle. The opposite party can recover the amount from their respective manufacturer of each spares and the complainant is not liable for the same. Here the opposite party never considered the complainant to get the compensation from the respective manufacturers, they only offered 50% of the cost of the tyre. So we think that the Ist and 2nd opposite parties should pay the cost of the tyre to the complainant. But the complainant never produced any evidence to show the cost of the tyre. No bill or estimate for the purchase of the new tyre has been produced by the complainant. If the tyre of the vehicle was damaged, the complainant would have purchase a new tyre. So we fix the value of the new tyre as Rs.8,000/-.
The 3rd opposite party is not at all a necessary party to this litigation. There is no complaint or allegation has been arised against the 3rd opposite party in anywhere in the complaint or in the arguments made by the learned counsel for the complainant. The 3rd opposite party himself denied in their written version that they are not the authorised dealer of the continental tyres and they are not doing any sales or service of the modi-continental tyres. The 2nd opposite party also as per the written version submitted that the 3rd opposite party is not the authorised dealer of modi tyres and no role in this litigation. The complainant vexatiously dragged the 3rd opposite party in this litigation and nothing has been proved against the 3rd opposite party anywhere. The 3rd opposite party is not at all dealer of the Ist and 2nd opposite parties and the 3rd opposite party is not having any business office of the Ist and 2nd opposite parties. In the complaint only it is stated that the 3rd opposite party is an authorised dealer of Modi continental tyres at Thodupuzha. That is denied by the opposite party in their written version. But the complainant never produced any evidence to substantiate his litigation. So we think that the 3rd opposite party is unnecessarily dragged into this complaint without any reason. So the complainant is liable to compensate the 3rd opposite party because a vexatious complaint has been filed against the 3rd opposite party, which we fix at Rs.1,000/-.
In the result, the petition allowed. The Ist and 2nd opposite parties are directed to pay Rs. 8,000/- as compensation and Rs.1,000/- as cost of this petition to the complainant within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default. The complainant is directed to pay Rs.1,000/- as compensation to the 3rd opposite party within one month.
Pronounced in the Open Forum on this the 25th day of July, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT.BINDU SOMAN(MEMBER
APPENDIX)
Depositions :
On the side of Complainant :
Nil
On the side of Opposite Parties :
Nil
Exhibits:
On the side of Complainant:
Ext.P1 - Photocopy of Tax Invoice dated 30.09.2010 for
Rs.4,155,638/- issued by the 2nd opposite party
for the purchase of the vehicle
Ext.P2 - Photocopy of R.C Book of the vehicle
Ext.P3 - Photocopy of Warranty details of the vehicle
Ext.P4 - Office copy of the lawyer notice dated 29.12.2010
issued by the complainant to the 2nd opposite party
Ext.P5 - Reply Notice issued by the opposite paty
Ext.P6(series) - E-mail messages sent by the complainant to the Ist
opposite party on 12.12.2010 and on 12.01.2010(2 Nos)
Ext.P7(series) - E-mail replies sent by the Ist opposite party(2 Nos)
On the side of Opposite Parties :
Nil
