DOF.24.4.2008

                                                                                                                   DOO. 04.06.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy              : Member

Dated this, the 4^th day of June,  2011

CC.82/2008

P.Renjith,

Ponkkaran House,

P.O.Cherukunnu,

Kannur 670 301                                             Complainant

(Rep. by Adv.K.L.Abdulsalam)

1.The Manager,

   Koyenco Autos Pvt.Ltd.,

   Thottada P.O.,

   Nr.Govt. Poly technique,

   Kannur 7.

  (Rep. by Adv.P.G.Anoop Narayanan)

2.Tata Motors,

   1^st floor,

   Vasudev Building,

   T.D Road,

   Ernakulam 1.

3. Tata Motors,

   Marketing and Customer Support,

   Passenger Cr business Unit,

   8^th floor, Center No.1,

   World Trade Center CafParade,

   Mumbai 5.                                                                      Opposite parties   

   (Rep. by  M/s.Menon & Menon for Ops1 &2)                                

O R D E R

Smt.K.P.Preethakumari, Member

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to replace the damaged vehicle with new one and to pay   `5, 00,000  as compensation with cost.

          The case of the complainant in brief is that he has purchased a Tata Indica car Model XETA 2006 from 1^st opposite party on 1.9.06 which is manufactured by 3^rd opposite party by believing the assurance promised in the various advertisement through various medias by convincing and promising its smooth engine power, low fuel consumption, high cooling, power steering, power window and all other facilities. But from the first day itself Power window is not working smoothly and were damaged, horns, clutch, wiper, power locking etc. are also not working till date. The consumption of fuel is high, parking light, cooling of glass etc. are faulty. The vehicle is jerking and making loud sound break is also in failure and break disk is jam etc. And all these defects are due to serious manufacturing defect. The front tyre is damaged after the first service and when the complainant approached 1`st opposite party for replacement, they refused it and the complainant was constrained to purchase the new tyre from 3<sup>rd</sup> opposite party. The 2<sup>nd</sup> opposite party informed the complainant that 1<sup>st</sup> opposite party is not a dealer of 2<sup>nd</sup> opposite party. The complainant mentioned in the complaint was informed to 1<sup>st</sup> opposite party at the time of every service, and these were not rectified even though four services were done. Due to inherent mechanical and manufacturing defect the complainant is not using the vehicle. So the complainant issued lawyer notice to the opposite parties demanding to replace damaged vehicle with new one and to pay ` 5 lakh as compensation. But they issued reply stating false contentions.  The complainant handed over the car for repair as per the instruction of opposite parties in their reply, but the result was same as before and hence the complainant took back the car from 1^st opposite party without satisfaction and without rectifying defects. The 2^nd opposite party appointed another person as the dealer and hence 1^st opposite party is not doing any service. So due to deficiency in service of opposite parties the complainant suffered so much of mental physical and financial hardship.  Hence this complaint.

          Pursuant to the notice opposite parties entered appearance and filed their version.

          The 1^st opposite party filed version contending that the complainant is not a consumer and hence the complaint is not maintainable before the Forum.  The 1^st opposite party admits that the complainant had purchased a Tata Indica model car from opposite party. They denies the averments that the power window were not working, the horns, clutch, wiper, power locking etc. are not working, the fuel consumption is very high, parking light and cooling of glass were faulty, the vehicle is jerking and making loud sound and the  break system of the vehicle is failure and disk became  jam etc. Even if these complaints exist they are minor ones and can be rectified easily and were not come under the purview of manufacturing defect. It is not correct to say that the front tyre of the vehicle became damaged and on complainant’s approach the 1^st opposite party refused replacement etc. If the tyre has caused any damage the 1^st opposite party is not responsible and it may happened only due to the failure of the complainant to check-up  wheel alignment after plying the vehicle inroads having poor condition. The alleged defects are all fabricated one and the 1^st opposite party being a branch of Koyenco Auto (P) Ltd., Calicut which is a dealer under opposite parties 2 and 3 used to attend the vehicle with due care and the complaint filed by the complainant is a false one. If there is any genuine complaints the 1^st opposite party is still ready to rectify the same and the alleged complaints raised by the complainant does not warrant any replacement of the vehicle and hence the complaint is liable to be dismissed.

          The opposite parties 2 and 3 also field version contending that the complainant is not a consumer and hence the complaint is not maintainable before the Forum. The complainant has no case that there is deficiency of service on the part of opposite parties 2 and 3 and hence they are unnecessary parties. The complainant had purchased the vehicle after personally inspecting and being satisfied with the vehicle. These opposite parties have not made any inducement to the complainant for purchasing the vehicle. A perusal of the owner’s manual shows that the 1^st opposite party is not an authorized service centers of the opposite parties 2 and 3 since they provided a list of authorized service centers and the 1^st opposite party’s name is not listed in it. The opposite parties have assured prompt service during the subsistence of the warranty only if the vehicle is taken to any authorized service centre as per the list in the owner’s manual. The opposite parties 2 and 3 cannot beheld liable for any of alleged actions of the first opposite party since 1^st opposite party is not  an authorized service centre of the opposite parties 2 and 3 and hence opposite parties 2 and 3  have no vicarious liability. At no point of time the complainant has taken his vehicle to any of the authorized workshop of opposite parties 2 and 3 during the subsistence of warranty. The complainant is not entitled to any of the benefit of the warranty since he has violated the conditions of warranty. The opposite parties 2 and 3 have not caused any loss or mental pain and financial loss to the complainant and hence they are not liable and hence the complaint is liable to be dismissed.

                    On the above pleadings the following issues have been taken for consideration.

          1. Whether the complainant is a consumer and the complaint is

              maintainable?

2. Whether there is any deficiency on the part of opposite party?

3. Whether the complainant is entitled for the relief as prayed in

     the complaint?

4. Relief and cost.

The evidence consists of oral evidence of PW1, DW1, DW2 and Exts. A1 to A5 and B1 and B1(a).

Issue No.1

          The opposite parties contended that the complaint is not maintainable. Since the complainant is not a consumer and the alleged deficiency of service will not come under the purview of consumer protection act. The complainant had purchased the vehicle from 1^st opposite party and contended that the first day itself the car is having many problems with serious manufacturing defect. Besides thus the complainant deposed that Rm³ Aâ sawmill t\m¡n \S-¯p-I-bm-Wv. ]cm-Xn-bn ]dª h­n IT-]\n Bh--iy-¯-n-\mWv D]-tbm-Kn-¡p-¶-Xv. So it is seen that the complainant is using the vehicle to get his work facilitated and the vehicle is alleged to be defective during warranty period itself. In Anilkumr Gupta Vs. Managing Director, Turning point computer education centre (P) Ltd., it was held that the  person purchased machinery to facilitate the work is a consumer, which was reported in2003(2) CPJ 128. In Gulab Industries Pvt.Ltd., Vs. RNG suiting Ltd., the National Commission held that the jurisdiction of consumer Fora cannot be ousted even for rendering of service for commercial purpose which was reported in 2004 (I) CPR7 (NC). So from the above discussion it is seen that the complainant is a consumer and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant. 

Issue Nos.2 to 4

          The rest of the case of the complainant is that the vehicle has serious manufacturing defects and even though the same was intimated to the opposite parties they have not heeded to the words of the complaint. The opposite parties 2 and 3 contended that they are not liable for any of the defects, because 1^st opposite party is not their authorized agent. In order to prove the case the complainant was examined as PW1 and documents Exts.A1 to A5 and C1 were marked. The opposite parties also examined DW1 and DW2 and produced Exts.B1 and B1 (a) documents to prove their case.

          According to opposite parties 2 and 3, 1^st  opposite party is not their authorized service centre and in order to prove this they have produced Ext.B1(a). But as per Ext.A4, it is seen that 1^st opposite party is the dealer of opposite parties 2 and 3. Ext.A4 is the notice dt. 9.1.07 issued by 3^rd opposite party to the complainant’s counsel to the reply in response to lawyer notice Ext.A2. It was written in it as “we understand that our dealer’s Advocate Mr.Anoop Narayanan has replied to your client’s legal notice in detail by the letter dt. 10.12.07 claiming the issue raised by your client in the legal notice. We have no reason to disbelieve with the clarification given by Mr.Anoop Nrayanan  on behalf  of our dealer, M/s.Koyenco Pvt. Ltd.” The reply mentioned   above is the reply issued by 1^st opposite party’s counsel. So it is clear that the 3^rd opposite party admits that 1^st opposite party is their dealer. The Ext.B1 (a) is only a specimen copy of owners manual and not the exact one which is given to the complainant. Moreover, the opposite parties 2 and 3 has not produced any document to show that they have terminated the dealership of 1^st opposite party. So from the above discussion it is clear that 1^st opposite party is the dealer of 3^rd opposite party. The opposite parties 2 and 3 admit that the vehicle was purchased by the complainant. But even though they denied the relationship with 1t opposite party, they have not mentioned that from where the complaint has purchased the vehicle. So from the above discussion we hold the view that  1^st opposite party is the dealer of  opposite parties 2 and 3  through whom the complainant had purchased the vehicle. So the statement that at no point of time has the complainant has taken his vehicle to any of the authorized workshops of opposite parties 2 and 3 during the subsistence of warranty and not entitled to any of benefits of the warranty is not correct.

          In order to prove that the vehicle has serious defects the complaint has taken out an expert commission who is a service engineer and he had filed his report as C1 with objection. The commissioner inspected the vehicle after giving due notices to opposite parties and inspection was conducted in the presence of opposite parties 1 and 2 also. Even though the complainant has made genuine attempts to examine the commissioner, by taking necessary steps, the notice was returned stating that he is not available since he is working in gulf. So considering the above circumstances, the commission report can be considered in evidence. The commissioner inspected the vehicle on 25.9.08 after two years of purchase.

          `The Commissioner reported that he had convinced that both power windows and window winder are defective and these defects are unexpectable one and hence it needs replacement. While closing the front side door a roaring type sound is coming and these types of sound are unusual in new car and hence right side door pad (trim) is also needs replacement. Air conditioner direction control is not working properly as offered by the manufacture and air condition is not working, lack   A/C gas on system and the cooling system also failure. Indicator hazard are not functioning at any time of any attempt and right side indicator is also not working  cause to defective in indicator hazard switch and combination switch and these kinds of complaint are unusual to  a new car and these defects cannot be cured easily spare wheel is defective. The commissioner further reported that he had driven the car in all types of road including Rough road, step hill road, National highway and other roads about more than 8 kilo meters reading starts from 29162 km to 29170km. While on driving the car in National Highway a jerking or roaring sound is happening from the body of the car and this sound is increasing when the rod changed from National Highway to rough road and this kind of sound is not ordinary in newly made car. According to the Commissioner the Power windows of the car are not working smoothly. Horn, wiper, power locking, parking light, cooling of glass etc. are defective and faulty. The vehicle is jerking and making loud sound during driving. The car has only a mileage of 15.49 kmpl.

          The Commissioner further reported that,  front power window  winder L.H, indictor hazard, combination switch, Front door Pad  LH and RH, horn bud, A/C repairing, glass fitting and A/C directional control switch etc. needs repairing and reported  that for this around `40000 are necessary.

          The job card dt.3.8.07 and 24.3.08 also substantiate the case of the complainant. Even though the commissioner reported that the vehicle was defective but he has not mentioned whether the defects are manufacturing or not. Moreover he has shown the total amount required as `40,000 but he has not produced the estimate for each work. Considering all these facts we are of the opinion that the vehicle is defective within the warranty period and 1<sup>st</sup> opposite party is the authorized dealer of 3<sup>rd</sup> opposite party and for curing the defects we assess that `35,000 is required. The complainant is also entitled to get `3500 as compensation and `1,500 as cost of this proceedings and order passed accordingly.

          In the result, the complaint is allowed directing the opposite parties to pay the amount of `35,000 (Rupees Thirty Five thousand only)for curing the defects along with `3500(Rupees Three thousand  Five hundred only as compensation and `1500 (Rupees One thousand Five hundred only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order as per the provisions of consumer protection act.

                      Sd/-                      Sd/-                        Sd/-              

                    President               Member                 Member

APPENDIX

Exhibits for the complainant

A1. Copy of lawyer notice dated 04.11.2007.

A2. Reply letter dated 10.12.2007.

A3.  Letter dated 04.12.2007.

A4.   Letter dated 09.01.2008.

A5.  Job card dated 24.03.2008.

Exhibits for the opposite party

B1.  Warranty-Terms and conditions

B1(a). Dealer location list.

Witness examined for the complainant

PW1. Complainant

Witness examined for the opposite party

DW1.  Shansheed K.

Dw2.  Shaji Valasseri    

                           /forwarded by order/

                   Senior Superintendent