This complaint  having come up for final hearing before us on 22.07.2015  on perusal of the material records  and on hearing the  arguments of  Thiru.S.Punniyamoorthi, the counsel for the complainant and Thiru.A.Luye Frank Antony Raj, the counsel for the 1^st opposite party, Thiru.G.Dharmaraja, the counsel for the 2^nd opposite party and  Tmt.P.P.Sheela Devi, the counsel for the 3^rd opposite party  and having stood  before us for consideration, till this day the Forum  passed the following  

By President, Thiru..P.G.Rajagopal, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986.

2) The gist of the  complaint filed  by the complainant  is that a Trax Cargo kind the light goods vehicle bearing  registration No. TN 49 AJ 1819,  purchased from the 1^st opposite party on 03.06.2011 had a break down on  13.04.2013 while proceeding  from Trichy  to Thanjavur and he entrusted the vehicle with the 2^nd opposite party for rectifying the repair therein. The 2^nd opposite party who told him to return the vehicle within a day subsequently failed to return in even after  a week and on  29.04.2013 he demanded  the complainant to pay Rs. 47,826/- towards repairing charges and take delivery of the vehicle stating that the entire engine had to be off loaded for rectifying  the defect and hence the said charges has to be paid.  The 2^nd opposite party has committed deficiency of service by off loading the engine and carrying out such major repairing works without  informing the complainant  and without his consent.  He is  not entitled to carry out such major repair within the  period of two years warranty applicable  for the engine of the  said  vehicle.  For the notice issued by the complainant  through his lawyer except 3^rd opposite party the  remaining opposite parties neither replied nor the 2^nd opposite party delivered  the vehicle to the complainant.   The complainant therefore prays for an order to direct the 2^nd opposite party to deliver the vehicle TN 49AJ 1819 to the complainant without getting any payment and to pay Rs. 10,00,000/- towards compensation  for the mental agony and financial loss caused to the complainant owing to the deficiency of service of the 2^nd opposite party along with cost of this litigation and to grant such and other relief as this Forum would deem fit.

3) The gist of the written version filed by the 1^st opposite party is that the complainant had all free service of the vehicles old by the first opposite party with him and as per records the complainant handed over the vehicle only for the first and six ths service alone to the first opposite party.6^th service was availed by the complainant from this opposite party on 07.04.2012 and on the date as well as on the previous occasions i.efrom 03.06.2011 to 07.04.2012, the complainant has not complained of any fault in the vehicle’s engine or any other major parts.The first opposite party has no knowledge regarding the repairing details of the vehicle and the repair done by the 2^nd opposite party.The complainant is not entitled to claim the warranty benefit since as per the terms and conditions of warranty policy unless all services up to date of claim have been performed on the vehicle by the first opposite party, authorized dealer or service cum part dealers workshopas the case may be. For thelawyer’s notice sent by the complainant the first opposite party did not send any reply as he has no direct contact or any agreement with the complainant for repairing the said vehicle on 14.04.2013.There is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed.

4) The gist of the written version filed by the 2^nd opposite party  is  since the complainant’s vehicle  bearing registration No.TN.49 AJ 1819 broke down on its way from Trichy to Thanjavur, it was entrusted by the complainant to the  2^nd opposite party for carrying out the repairing work  on  13.04.2013. The vehicle  required major work and the  complainant  had given consent to those work  and  based on his consent the works were carried out by the 2^nd opposite party.  Parts like  timing chain, chain tensioner shoe, slide rails, gaskets etc., came with the warranty   for one year from the date of sale or 1,00,000 kilometer run of the vehicle whichever  occurs earlier. The warranty  on  the said  parts expired on  03.06.2012.  Therefore the complainant  was not entitled for any warranty benefits.  There is no deficiency of service on the part of the  opposite party as he carried out  the repairing works only with the consent of the complainant.  Therefore, the complainant is  not entitled to get delivery of the vehicle  without paying the repairing charges of  Rs.47,826/-.

5) The gist of the written version filed by the 3^rd opposite party is that the vehicle in question is a commercial  vehicle  and  meant  for commercial purpose and therefore  the complainant is  not a consumer  as per the provision of  section 2(1)(d) of the Consumer  Protection Act 1986 and therefore this Forum does not have jurisdiction to entertain this complaint which is liable to be dismissed in liminie. This Forum  has also not got the territorial  jurisdiction to try this complaint  as the 3^rd opposite party is beyond the territorial jurisdiction of this Forum. Further the complainant is not entitled  to any warranty claim since he had not  had all services of the vehicle to have been performed by any one of the authorized dealer or service cum part dealers workshop as the case may.  There is no proof of any manufacturing defect in the vehicle sold by the first opposite party and hence the complaint is liable to be dismissed against the  3^rd opposite party as he has nothing to do with the repairing work carried out by the 2^nd opposite party.

6) The complainant has filed his proof affidavit reiterating all the averments made in his complaint and filed seven documents which are marked as Ex.A.1 to Ex.A.7.The opposite parties have also filed their respective proof affidavits and the 2^nd opposite party has also filed 2 documents which are marked as Ex.B.1 and B.2 .The 3^rd opposite party has filed one document which is marked as Ex.B.3. Written arguments have been submitted by all the parties.

7)   The points for Determination are:

                    1) Whether the complaint is maintainable  in this Forum?

                     2) Whether there is  any deficiency of service on the part of the  opposite parties?

                     3) Whether the complainant is entitled to any relief? If so to what relief?

8)  POINT  NO.1:   It is the 3^rd opposite party who has raised the objections  as regards the maintainability of the complaint stating that the complainant  is not a consumer coming under the purview of the Consumer Protection Act 1986 in as much as the  vehicle  purchased by him is the light goods vehicle used for commercial purpose and as such  the complainant is not a consumer as per sec.2(d) of the Consumer Protection Act  1986.  But the vehicle is  used for the purpose of  earning  the livelihood of the complainant by using it for his flower business and as per explanation to sec.2(d)(ii) of the Act, the complainant is also a consumer coming under the purview of the Act and therefore  the complaint is very well maintainable before this Forum.

9) POINT NO.2:On the side of the complainant 7 documents are filed.Ex.A.1 is the Xerox copy of the registration certificate of the vehicle bearing registration No.TN49 AJ1819.Ex.A.2 is the Tax invoice given by the 2^nd opposite party to the complainant containing the particulars of repairsand charges therefor.Ex.A.3 is the office copy of the notice sent by the complainant through his lawyer to the first and 2^nd opposite parties.Ex.A.4 is the postal acknowledgement card of the first opposite party.Ex.A.5 is the postal acknowledgement card of the 2^nd opposite party.Ex.A.6 is the another notice subsequently sent by the complainant’s lawyer to all the opposite parties and Ex.A.7 is the reply sent by the 3^rd opposite party to the complainant’s lawyer.

10)  On the  side of the 2^nd opposite party  the job card relating to the said vehicle bearing registration No.TN 49 AJ 1819 for carrying out the repairs is filed as Ex.B.1.  Ex.B.2  is the tax invoice containing the particulars of repairs carried out and  charges there for.  At the time of argument the terms and conditions of warranty  policy filed on behalf of the 3^rd opposite party is marked  as Ex.B.3.

11) The main allegation of the complainant is that the vehicle bearing registration No. TN 49 AJ 1819  purchased by him from the first opposite party on 03.06.2011 broke down while coming from Trichy to Thanjavur  and hence it was entrusted to the 2^nd opposite party to set right  the defect therein.   The  2^nd opposite party who told him  that it had only  ordinary repair and could be rectified  in a day subsequently  on 14.04.2013 requested for one week time to return the vehicle.  When the complainant approached the 2^nd opposite party for getting the delivery of the vehicle the latter  asked him to pay Rs. 47,826/- repairing charges  before getting  the delivery of the vehicle stating  that the entire engine of the vehicle had to be offloaded for repairing work and many spare parts had to be replaced. The offloading  of the engine and replacement of many spare parts  therein by the 2^nd opposite party is sheer deficiency of service on his part as he had not obtained the prior  consent of the  complainant  and had carried out such repair without informing him also.  

12) Another contention of the complainant is that the 2^nd opposite party ought not to have carried out the repairing of the engine work as he had two years of warranty period for the vehicle.But the terms and conditions of warranty policy produced by the 3^rd opposite party is that the warranty will be limited repairing or replacement , free of charge such faults which in their opinion or defective when the vehicle is brought to the dealers of the workshop within the warranty period if the terms and conditions detailed beloware satisfied.The warranty period on Trax engine is defiedas 36 months or 3,00,000 kms. Whichever occurs earlier from the date of sale,subject to the following terms andconditions.The warranty period on remaining aggregates of trax vehicle is defined as 18 months from date of sale, subject to the following terms and conditions. “ As perclause 13 of the terms of warranty policy the warranty claim will not be entertained unless all services up to date of the claim, have been performed on the vehicle by any one of our Authorised dealers or service –cum – part dealers workshop as the case may be”.“ As per clause 14 of the terms of warranty hereby offered shall not be available and we shall not be responsible in any way if the vehicle or any part thereof is repaired or altered otherwise in accordance with out standard repair procedure or when the repair/ works have been done by any person other than our authorized dealer.Out decision regarding repair, alternation and the person who carried out such repair or alternation shall be final and binding in all respects” .

13) According to the contention of the  1st and 3^rd opposite  parties , the complainant had  the  free service of the vehicle had only the 1^st and 2^nd and 6^th  free service of the vehicle on 01.07.2011, 01.09.2011 and 07.04.2012  respectively. But did not have the remaining free service either with the first opposite party or with any of the authorized service dealer.  Therefore he is not entitled to claim the warranty benefit.  The complainant though has made  a casual  averment in the first paragraph of the complaint that he had all the service with the opposite party he could neither prove  it nor rebut the said allegation made by the first opposite party.  Therefore the complainant has failed to comply with the condition as per clause 13 and 14 of the terms and conditions of warranty policy.  The complainant has also had changed   certain spare parts such as the timing chain  at the unauthorized  workshop and not genuine  including the time chain.  The said contention also could not be rebutted by the complainant.  Further the 2^nd opposite party is not also  authorized service dealer of the first opposite party.  

14) The contention of the  2^nd opposite party is that  he carried out the repairs only after involving the complainant and get his approval and therefore there is no deficiency of service on the part of the opposite parties.   Ex.B.1 is the job card produced by the 2^nd opposite party.  The job card is said to have been signed by the driver of the complainant and not by the complainant himself.  Though there is a remarks  dated 17.04.2013 as if the brother  of the complainant  personally inspected the repairing  work after its completion and left the workshop informing him that he would take delivery  on the next day.  In the said Ex.B.1 the  remark dated 13.04.2013 states  that the  timing chain  cum shaft support had been damaged and it has to be  replaced with a new one and the complainant was informed of that  defect. The  remarks  dated 13.04.2013 it is mentioned  that  permission to carry out the repairing work was given by the complainant through his driver and it was also informed that the repairing  would cost Rs.20,000/- more than the  Rs.30,000/- already  informed to the complainant Jothinathan.  While such a costly repairing work is to be carried out the 2^nd opposite party ought to have obtained the signature of the complainant or of his brother who has alleged  to have inspected the  vehicle on  17.04.2013 in the job card.  Further  that the notice sent by the complainant before  lodging this  complaint, the second opposite party has not even chosen to  send a reply.  Therefore, the  carrying out of the repairing work at the  cost  of  more than Rs. 49,000/-  without getting the  approval and consent of the complainant is sheer  deficiency of  service on the part of the 2^nd opposite party.

15) POINT No.3:In the result, the complaint is allowed in part.The repairs have been carried out by the 2^nd opposite party and the complainant is not entitled to any warranty benefit in view of the violation of the condition No.13 & 14 of the terms and conditions of warranty policy as already pointed out.Since the repairing work carried out by the complainant has involved some replacement of spare parts such as Camshaft, Duplex Chain, Self-centering Clutch Rela, Repair Kit-cam bearing , Cylinder Head Gasket etc.,the complainant is directed to pay Rs.27,000/- only from out of the bill amount of Rs.47,826/- as per Ex.B.2 and get delivery of the vehicle. The second opposite party is directed to deliver the vehicle to the complainant in a good running condition after receiving the said Rs.27,000/- from the complainant towards full settlement of the repairing charges due to him within 30 days from the date of this order. If the complainant fails to pay the said amount of Rs.27,000/-(Rupees twenty seven thousand only)within the period of 30 day she shall be liable to pay the entire repairing charges of Rs.47,826/- and if the 2^nd opposite party fails to deliver the vehicle within thesaid number of days in a good running condition to the complainant on receiving the amount of Rs.27,000/- he shall be liable to pay a compensation of Rs.1,00,000/-(Rupees one lakh only) to the complainant.The 2^nd opposite party is directed to pay a sum of Rs.3000/-(Rupees three thousand only)to the complainant towards the cost of the litigation.The complaint as against the 1^st and 3^rd opposite parties stand dismissed.

                    This order was dictated by me to the Assistant, transcribed by her and corrected  and pronounced by me on this  23rd   day of July  2015.

MEMBER -I                                                                                                 PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the  2^nd & 3^rd  Opposite parties :