Date of Filing       :  01.02.2018

                                                                                        Date of Disposal  :  08.07.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

KANCHIPURAM DISTRICT @ CHENGALPATTU

PRESENT: THIRU.   U.KASIPANDIAN, B.A., M.L.,       .….  PRESIDENT

                   THIRU.M.JAWAHAR, B.A. L.L.M.,                …..  MEMBER-I  

CC.No.16/2018

THIS FRIDAY THE 8^th DAY OF JULY 2022

Mrs.Kalaiselvi,

W/o.Raghunath Arumugham,

No.123, Kakkanji Street,

Kollacherry, Kundrathur,

Chennai – 600 069.                                                                        ….. Complainant

                                                                           //Vs.//

1. The Manager,

TVS Motor Company,

Jayalakshi Estates, Vth floor,

No.8, Haddows Road,

Chennai  – 600 006.

2. The Authorised Signatory,

L..A. Moto, Authorized Main Dealer

for TVS Motor Co. Ltd.,

No.4/61, Kundrathur Mangadu Main Road,

Kollacherry, Kundrathur,

Chennai – 600 069. 

3. The Works Manager,

M/s.Kothari Automotive,

No.191. Pammal Main Road,

Near Rettai Pillaiyar Koil Street,

Pammal, Chennai – 600 075                                                      …..  Opposite parties

Date of filing  : 01.02.2018

Counsel for the complainant                             :  M/s.R.Sasikumar, Advocates.

Counsel for the 1^st opposite party                    :  M/s.S.Rajmakesh, Advocates.

Counsel for the 2^nd opposite party                   :  Ex-parte. (dt.13.06.2018)

Counsel for the 3^rd opposite party                   :  Party in person

This complaint having came up for final hearing before us on 04.07.2022 in the presence of M/s.R.Sasikumar, Advocates,  for the complainant, M/s.S.Rajmakesh, Advocates for the 1^st opposite party,  the 2^nd opposite party was called absent and set ex-parte on 13.06.2018 and the 3^rd opposite party presence in person and hearing the arguments of both side and having perused the documents and evidences of both side, this Commission delivered the following:

 ORDER

PRONOUNCED BY THIRU. U.KASIPANDIAN, PRESIDENT.

1.       This complaint is filed by the complainant under Sec.12 of Consumer protection Act, 1986, against the opposite parties  seeking directions a) directing the opposite parties 1 & 2 to replace the new vehicle TVS Jubiter Scooter, in the place of  TN-85-E-3296 purchased by the complainant from the 2^nd opposite party, under Receipt Nos.1439 and 1440 dated 20.05.2017, and also to direct the opposite parties 1 to 3 to pay a compensation of  Rs.5,00,000/- for damages, sufferings, to the complainant because of his deficiency in service by all the opposite parties and also to direct the opposite parties to pay the costs of this proceedings.

2.         Brief averments  in the complaint are as follows:-

            The complainant has purchased a two wheeler namely TVS Jubiter Scooter from the 2^nd opposite party – vide vehicle bearing Reg.No.TN-85-E-3296 on 20.05.2017 for a sum of Rs.67,000/-. The vehicle was used only for two weeks that is up to 6.6.17 and that on 6.6.17, when the complainant was proceeding in that vehicle it was suddenly stopped 3 times in the middle of the road. The complainant contacted nearby Mechanic and informed that it is a new vehicle purchased 15 days back and in the meantime the mechanic told that the stoppage was due to fuse issue in the vehicle. The said mechanic has also informed that it is a new vehicle and till expiry of the warranty, to contact the dealer immediately. The complainant had contacted the 1^st opposite party on 6.6.17 itself and informed the problem occurred in the tow wheeler. The 2^nd opposite party directed the complainant to leave the vehicle with the 3^rd opposite party and assured that they will rectify the faults. Accordingly the vehicle was left with their custody. The complaint No. of the said vehicle is 88552. On 12.06.2017 received a phone call from the 3^rd opposite party and informed that he will get the spare parts for the said vehicle only on 14.06.2017 and on receipt of the same, fix the same in the vehicle and deliver the same. The 3^rd opposite party again called the complainant, that he did not replace the entire wiring and that the vehicle will be kept under observation. The complainant required from the 1^st opposite party, that the spare parts which are replaced are genuine and that this will not create any problem till warranty period. On 24.06.2017 the 3^rd opposite party called the complainant and informed that the vehicle is ready for delivery at the show room. 0n 10.07.2017 the complainants husband received the Gmail from the 3^rd opposite party and informed the vehicle is ready for delivery. Under such circumstance, the complainant has not taken delivery for the vehicle. The said vehicle is still in the show room. On 14.07.2017 the 2^nd opposite partys representative has informed in his mail that the 2^nd opposite party is an un-authorized outlet of TVS vehicle. So they could not give assurances for the spare parts of the vehicle. The complainant trusted the 2^nd opposite party as per receipts No.1439 & 1440 they have specifically mentioned that they are Authorized Main Dealer for TVS Co. Ltd., while so, how the 1^st opposite party who is the Manufacturer of the TVS vehicles, allowed the 2^nd Opposite Party to sell the TVS Bike through an unauthorized outlet and how the 3^rd Opposite party got TVS bike for service from the 2^nd opposite party. The complainant issued legal notice dt.11.07.2017 to the 1^st opposite party, to replace the said vehicle with a genuine vehicle and also to pay a compensation of Rs.5 lakhs. But there is no reply from the 1^st opposite party. Thus the act of all the opposite parties amount to deficiency in service and the complainant seeks compensation and replacement of new vehicle in the place of defective vehicle. Hence this complaint.

3.         The brief contention of written version of the 1^st opposite party is as follows:-.

            The 1^st opposite party is a manufacturer of powered two-wheeler and other automotive products. The two-wheeler manufactured by the 1^st opposite party are sold on principal-to-principal basis to its various dealers across the country. The 3^rd opposite party is one such dealer. The 2^nd opposite party is not an authorized dealer of the 1^st opposite party. The 1^st opposite party has ceased all its operations with the 2^nd opposite party on and from 31.03.2017 vide a Non Renewal letter dt.6.1.17. Also, the dealers are independent parties and not the agents of the 1^st opposite party. The 1^st opposite party further submits that the complainant has miserably failed to disclose any cause of action as against the 1^st opposite party. The complainant did not allege anything either in general or specific as regards the nature of any manufacturing defects in the vehicle. Hence the complaint against the 1^st opposite party is frivolous and the complainant is not at all entitled for any relief. It is submitted that in the present complaint, there is no role as far as the 1^st opposite party is concerned in this case. The role of the 1^st opposite party arise only in case of manufacturing defect, in which case only defective components shall be replaced free of cost during the warranty period.  The 1^st opposite party submits that it is only a manufacturer of the vehicle. The 1^st opposite party does not provide service and for the service, the complainant has to avail the same from the authorized service centers/dealers i.e. the 3^rd opposite party. The 1^st opposite party furnishes owners user manual along with the vehicle, in which, the user of the motor vehicle is guided through various information such as features in the vehicle model, riding tips, maintenance instructions, warranty and services, technical specification of the vehicle, general information etc., through the owners manual, the owner of the two-wheeler is provided by the 1^st opposite party with warranty for a specified period on the stipulated terms and conditions and the owner accepts such warranty. The complainant had approached the 1^st opposite party through an email on 12.06.2017 alleging some issues of the vehicle stopping and asking for replacing the vehicle. Subsequent to the complaint, the 1^st opposite party based on enquiry came to understand that the complainant had purchased a TVS Jupiter Vehicle on 20.05.2017. The 1^st opposite party immediately followed up with the complainant and requested to bring her vehicle to the 3^rd opposite partys workshop which is the Authorized Main Dealer of the 1^st opposite party and instructed the 3^rd opposite party to examine the complaints with the vehicle and technicians of the 3^rd opposite party exhaustively inspected the vehicle and observed that there was a minor issue with the adjustment of wiring in the vehicle. The technicians of the service centre of the 1^st opposite party had duly attended the vehicle and repaired the minor problem with the wiring by replacing it without any charges even though the same is not covered under the warranty. The complainant was also intimated of the same and was explained that the electrical writing is only a wear and tear item and the issue is not connected with the engine or main component of the vehicle. However, still the complainant had refused to take the vehicle and without even coming to the service centre of the 1^st opposite party for examining whether the problem was a minor one or not, the complainant remained adamant that the vehicle be replaced with a new one. The 3^rd opposite party through phone calls and letters to seek the complainant to collect the vehicle went unsuccessfully and from 14.06.2017 to till the date, the vehicle is still with the 3^rd opposite party. The letter dt.21.07.2017 sent by the 1^st opposite party to the complainant. Therefore, without even inspecting the vehicle, the complainants notice calling for to seek replacement of vehicle is illegal and unlawful.

4.         The 2^nd opposite party was called absent and set ex-parte dt.13.06.2018.

5.         The brief contention of written version of the 3^rd opposite party is as follows:-.

            The 3^rd opposite party is the authorised dealer of the 1^st opposite party. The complainant was several times asked to take delivery of the vehicle. The customer was also approached by us to his residence for door delivery of the vehicle, but he denied taking the same. The vehicle has been holding space in the service centre hindering them day to day work. The parking charges are applied from the day the vehicle is taken (if vehicle is not taken delivery by customer after its ready) in on a daily charge of Rs.20/-. The total days the vehicle inside service centre 279 days (till 19 March, 2018) Total amount Rs.5580/-.  The 3^rd opposite party prayed to direct the complainant to take the delivery and to pay the parking charges.

6. In order to prove the case, on the side of the complainant and 1^st & 3^rd opposite parties, the proof affidavit submitted as their evidence and Ex.A1 to Ex.A7, Ex.B1 to Ex.B4 & Ex.B5 to Ex.B9 were marked respectively.  Written argument of both sides filed and also heard oral argument.

7.         At this juncture, the point for consideration before this Commission are:-

(1) Whether the complainant is a consumer?

(2) Whether the complaint is filed within stipulated time?

(3) Whether this Commission does have jurisdiction to try this complaint?

(4) Whether substandard fuse and wiring problem is an essential and major issue in the vehicle or not?

(5)Whether the Opposite parties are liable for any act of deficiency in service or defect in the goods sold or any unfair trade practice?

(6) Whether the complainant is entitled to compensation and costs of the proceedings?

(7) To what other reliefs, the complainant is entitled?

8.         Point No.1 to 3:-                  The fact that the complainant has purchased TVS Jupiter vehicle from the 2^nd opposite party vide Ex-A1 dated 20.5.2017 which is not denied by the Opposite parties.  Hence, the complainant is a consumer within the ambit of the Consumer Protection Act.  A perusal of Ex-A1 reveals that the 2^nd Opposite Party is the authorised dealer of the 1^st Opposite Party. The complaint has been filed on 7.1.2018 in respect of the vehicle purchased on 20.5.2017 alleging deficiency in service and/or defect in goods and/or unfair trade practice. Hence the complaint is field within the time. The 2^nd and 3^rd Opposite parties are carrying on the business within the territorial limits of this Commission. The complainant is also residing within the territorial limits of this commission and this   Hence, these points are answered accordingly.

9.         Point No. 4 to 7:-     The complainant alleges that the vehicle bearing brand name TVS Jupiter from the 2^nd opposite party under the trust reposed in the 1^st opposite party. But the vehicle did not perform up to the mark and under gone break down, within a short time of fifteen days from the date of purchase. The Complainant further contented that the vehicle stopped in the middle of the road and consequently, the complainant faced threat to her life from other motorists. The counsel for Complainant while arguing the case, submits that such frequent stoppage of vehicle within a short span made his client to lose trust in the manufacturer. When the vehicle was taken to the dealer 2^nd opposite party, the complainant felt another shock that the 2^nd opposite party was not an authorized dealer of 1^st opposite party and as a result the complainant was constrained to believe that the vehicle sold to her was a spurious one. Hence her family members refused to take the vehicle. Further  nowhere in the version or Proof affidavit the 1^st Opposite Party stated that the parts replaced after receiving complaint from the complainant are genuine and originals.

10.       The 1^st opposite party admits the fact that the 2^nd opposite party was not an authorized dealer. When the 2^nd opposite party was not an authorized dealer, it is the duty of the 1^st opposite party to explain how the 2^nd opposite party sold the vehicle to the complainant? Whether the subject vehicle has been manufactured by the 1^st opposite party or not, because spurious goods are pervading in the country. One could not sell a vehicle in a secret manner. The 2^nd Opposite party should have sold the vehicle to the complainant from a conspicuous place.The 2^nd opposite party also issued Ex-A1 which states that the 2^nd Opposite party is the authorised dealer of the 1^st Opposite party. And when a person or entity which is not authorized by the 1^st Opposite party, deal with the goods of the 1^st opposite party,  the 1^st opposite party should have furnished the details of the legal action taken against the 2^nd opposite party. The Counsel for the complainant further submitted that the 1^st opposite party did not take any action against the 2^nd opposite party and such act of the 1^st opposite party deepened the suspicion upon the vehicle to think that the vehicle is original or spurious.

11.       The counsel further submitted that the 1^st opposite party admittedly directed the complainant to send the vehicle to 3^rd opposite party, but failed to take any action against the 2^nd opposite party leads to believe that the 1^st opposite party is selling spurious and/or inferior quality vehicle through 2^nd opposite party.

12.       The Counsel for complainant further submits that even assuming that the 1^st opposite party terminated the dealership of the 2^nd opposite party, the 1^st Opposite party should have taken back the unsold socks from the 2^nd Opposite party. No where in the version or proof affidavit, the 1^st opposite party contents that they have taken back the unsold stock from the 2^nd opposite party. Therefore it is proved that the 1^st and 2^nd Opposite party entered into to a conspiracy to sell inferior quality goods/vehicles to consumers which is unfair and hence the complainant refused to take back the inferior quality vehicle sold by 2^nd Opposite party.

13.       Per contra, the counsel for 1^st opposite party submitted that once the vehicle is sold, the responsibility of the 1^st opposite party ends and the consumer should contact authorized service dealers. Hence the 1^st opposite party contents that it is not liable for any after sale defect, or deficiency in relation to the vehicles manufactured and sold by them. They are responsible only if there is manufacturing defect. The 1^st Opposite party in para 13 of their version states as follow:

Issues regarding service of the vehicle are governed by the contract inter se between the dealer and the complainant. 

In the instant case the 1^st opposite party do not whisper about the vehicles sold through unauthorized dealers. The 1^st opposite party  argued that the owner of the two wheeler is provided warranty  for a specified period on the stipulated terms and condition and the owner accepts such warranty. The 1^st opposite party  relying upon the case Bharti Kniting Co Vs DHL World wide Courier ( 1996( 4 SCC 704. The advocate for complainant, refutes the same and submitted that the owners manual is not in a language known to the complainant and the said owners manual is not given to the perusal or understanding prior the delivery of vehicle and hence the terms and conditions of the manual will not bind her especially when the vehicle is un-authorizedly sold to the complainant. The 3^rd opposite Party who has sold the vehicle to the complainant is neither an authorized dealer of 1^st opposite party nor a service provider as per the terms of the owners manual. Hence the ratio of the above said case is not relevant to the present case.

14.       It is also the contention of the 1^st opposite party that the technicians of 1^st opposite party has duly attended the vehicle and repaired the minor problem with wiring by replacing it without any charge even though the same is not covered under warranty. The Complainants counsel resisted the same by elaborating the difference between a vehicle and engine. The complainant put forth that a vehicle is a proto type apparatus for land transport comprising an internal combustion engine and other components. Since the warranty is for the vehicle, the 1^st opposite party cannot absolve their liability and responsibility by confining the warranty only to Internal Combustion engine alone.  Such conduct of the 1^st opposite party is unfair. When the facts being so how the 1^st opposite party speaks about the warranty of a vehicle sold by an unauthorized dealer. This alone is suffice to conclude that the 1^st Opposite party uses 2^nd opposite party to dispose of their inferior quality vehicles.

15.       Further the complainants counsel argue that averment in para 16 of the version filed by 1^st opposite party that  terms of  warranty as specifically mentioned in the warranty manual is that the Warranty shall not be applicable for replacement of normal service items or wear and tear items including without limitation… electrical wiring etc.

16.       Now a question arises as to whether, wiring items is a normal service item or essential component? Whether a vehicle can run without fuse and wiring?  Wiring is such an essential component like Internal Combustion engine. By incorporating such terms, by excluding an essential item as wear and tear item in the warranty manual, once again the unfair act of the 1^st opposite party  established.

The 1^st opposite party relies on the following cases

1.         Maruti Udyog Ltd, Vs Susheel Kumar Gabgotra (2006 CTJ413CP(SC),

2.         Shiv Prasad Paper Industries Vs Senior Machinery Company (2006 CTJ 231 CP NCDRC,

 3.        R.Bhaskar Vs Udhani & other 2007CTJ 129 CP (NCDRC),

 4.        Chandeswar kumar Vs Tata Engineering Loco Motive Co & Another, 2006(3) CPR402,

All the propositions settled in the above said cases and averred in the written version of the 1^st Opposite party were carefully considered and this commission is of the view that the decision rendered in the above cases are irrelevant to the present case. All these cases are irrelevant since the vehicle has been sold by an unauthorised dealer to the complainant and the 1^st opposite party in collusion in collusion with the 2^nd opposite party sold inferior quality goods and when the same came to light, the 1^st opposite party instead of supporting the complainant, acting against the complainant. The 1^st opposite party neither admits that the vehicle sold by the 2^nd opposite party has been manufactured by the 1^st opposite party nor taking action against the 2^nd opposite party.   If any vehicles are sold through unauthorized dealers, it is the 1^st opposite partys bounden duty to take legal action against such dealers in general and the 2^nd opposite party in particular.  In the cases referred by the 1^st opposite party, the vehicles were sold by authorised dealers. In the present case the vehicle has been sold by an unauthorised dealer, 2^nd opposite party who has been set ex-parte. The 1^st opposite party is not ascertaining that the spares used to repair the defect pointed out by the complainant are genuine. Hence, the above cases are irrelevant to the present facts and circumstances.

17.       When the vehicle ceased in the middle of the road, there is imminent threat to the life of the rider and especially when the vehicle has been sold by an unauthorized dealer, any one will come to the conclusion that the 2^nd opposite party has sold inferior quality vehicle to him. Further the 1^st opposite party is also not expressly claiming that the vehicle is a product of the 1^st opposite party.  Hence the Complainant has not taken back the vehicle which was handed over to the 3^rd opposite party, apprehending danger not only to his life but also a threat to the innocent road users.

18.       In the above facts and circumstances, it admitted fact that the Opposite party in their owners manual incorporated the following condition:

……………………………..

Issues regarding service of the vehicle are governed by the contract inter se between the dealer and the complainant.

………………………………..

the Warranty shall not be applicable for replacement of normal service items or wear and tear items including without limitation.. electrical wiring etc. 

By imposing such conditions,  the  1^st opposite party would cause significant disadvantage in the rights of consumer and hence unfair.

19.       At this juncture it is pertinent to distinguish the difference between a vehicle and engine.

World Intellectual Property Organization (WIPO) classified all the goods and services in the world. The said classification is called NICE Classification. Nice Classification has 45 classes. Among the 45 classes, class 1 to 34 are with regard to goods. Class 35 to 45 are with regard to services. Vehicles are placed in class-12 and engine is placed  in Clause-07.

Clause 12 of Nice classification runs as follows :

Vehicles; apparatus for locomotion by land, air or water. 

This Class includes, in particular:

– motors and engines for land vehicles;

– couplings and transmission components for land vehicles;

– air cushion vehicles.

Clause 7 of Nice classification as follows:

Clause 7 includes mainly machines and machine tools, motors and engines.

Therefore in a vehicle, engine is a component without which the vehicle is a mere scrap . Like wise, the vehicle will be scrap even if the fuse wiring is not functioning properly. Thus fuse wiring in a vehicle is an essential component like an engine without it the engine cannot even get ignited.

20.       Vehicle is a prototype apparatus comprising an internal combustion engine, wheels, lights, choke, gear system, fuse wiring etc. The 1^st opposite party has misrepresented that the warranty is for vehicle; and, after selling the vehicle, the 1^st opposite party warranty manual states that warranty is not to all the components of vehicle, but to engine alone. Such act of the 1^st opposite party, incorporating such terms in the warranty manual, clearly proves the unfair act of the 1^st opposite party.

21.       The 1^st opposite party has not stated anything about quality or service of the vehicles sold through the unauthorized dealers, nor has taken any punitive action against the 2^nd opposite party. Such conduct of the 1^st opposite party leads to believe that there is collusion between the 2^nd and 1^st opposite parties.  Because of such unfair acts of the 1^st opposite party, the complainant abstained from taking back the vehicle from the 3^rd opposite party. Therefore the complainant is entitled for replacement of the vehicle TVS JUPITER, and seeks damages for deficiency and unfair contracts in the owners manual besides the costs of these proceedings.

22.       In the result, this complaint is partly allowed. The opposite parties 1 & 2 are jointly and severally directed to replace the new vehicle TVS Jubiter Scooter, in the place of TN-85-E-3296;

Further the opposite parties 1 & 2 are jointly and severally directed to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards the damages and deficiency in service to the complainant and further to pay a sum of Rs.10,000/- (Rupees Ten Thousand only)  towards cost of the proceedings to the complainant within two months from the date of receipt of copy of this order, failing which the above said amount shall carry interest @ 9% p.a. from the date of order till the date of realization.

The complaint is dismissed against the 3^rd opposite party.

 Dictated by the President to the Steno-typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this 8^th day of July 2022.

      Sd/-                                                                                                                             Sd/-

MEMBER-I                                                                                                   PRESIDENT

List of document(s) filed by the complainant(s):-

List of documents filed by the 1^st opposite party(s):-

List of documents filed by the 2^nd opposite party(s):-

• Nil -

List of documents filed by the 3^rd opposite party(s):-

       Sd/-                                                                                                                            Sd/-

MEMBER-I                                                                                                   PRESIDENT