BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 184/2013 Filed on 10/05/2013

ORDER DATED:  19/05/2023

ORDER

SRI. VIJU V.R : MEMBER

           The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986.  The 2^nd complainant was impleaded as the legal heir of 1^st complainant as per the order in IA no.349/21. The brief facts of the case is that the 1^st complainant had purchased a TATA NANO LX Car bearing Reg: No.KL.21F 5068 on 11/09/2012 for Rs.2,14,406/- from the 3^rd opposite party.  At the time of delivery of the vehicle the odo-meter of the said vehicle has shown that the said car had already run 55 kilometres before effecting delivery to the 1^st complainant.  When the 1^st complainant had enquired about the reason for the 55 Kilometres running before delivery of the said car, the 3^rd opposite party stated that, they had done test drive of the said vehicle before effective delivery for checking the mileage and the fitness of the car and which is their policy.   On 11/09/2012 at about 8 pm the 1^st complainant had taken delivery of the said Nano car from the 3^rd opposite party and had driven by him to his residence.  During driving of the said Nano car, the 1^st complainant had felt some unusual sound from the engine and from gear box at the time of changing gear and the power steering is not working properly.  More over the door beadings were fallen down when closing the doors and the seat belt is also not working.  On the next day morning itself (12/09/2012) the 1^st complainant took the car to the work shop of the 3^rd opposite party and had explained all the aforesaid defects of the said Nano car.  The mechanic of the 3^rd opposite party had conducted repairing works in the new Nano LX car of the 1^st complainant up to evening and had convinced the 1^st complainant that all the defects of the said Nano LX Car was cured.  The 1^st complainant had taken delivery of the vehicle by believing the words of the Service Manager of the 3^rd opposite party.  But at the time of driving of the afore said car, the 1^st complainant had again felt all the aforesaid defect in it and the 1^st complainant informed the same to the service Manager of the 3^rd opposite party immediately.  The Service Manager of the 3^rd opposite party told to the 1^st complainant to drive the car two or three days, the defects will be cured automatically and he had handed over the vehicle to the service Manager of the 3^rd opposite party without any delay.  When the said car had run about 500 kilometers, the 3^rd opposite party repaired the said car at 8 times, but the defects were not cured.  More over the grip of the front tyre was lost at about 60% within a short span of running of the said car even though they repaired the car 8 times in different days during a short span of period.   The 1^st complainant is strongly apprehended that the said car has some major manufacturing defects and which are not curable.  At the time of purchasing of the said car the 1^st complainant had took additional service package named “Value Care Silver” by paying additional payment.  Even though the said car was having full warranty and ‘Value Care Silver’ scheme, the 3^rd opposite party had charged an amount of Rs.2,450/- from the 1^st complainant for rectifying the afore said defects, but the said defects are not cured so far.  Due to the negligence and the cheating practice from the side of the 3^rd opposite party, the 1^st complainant had lost his 8 days job and which is also adversely affects production of the various medicines and which cause high mental and financial loss to the 1^st complainant.  Finally on 12/03/2013 the 1^st complainant was compelled to sent registered legal notice to the 2^nd and 3^rd opposite parties.  Even though the notices were received by opposite parties, they kept mom and they didn’t take any steps for redressing the grievances of the 1^st complainant.  The new Nano LX car purchased by the 1^st complainant from the by 3^rd opposite party on 11/09/2012 is having various manufacturing defects and which is not road worthy, hence this complaint.     

The opposite parties 1 to 3 entered appearance and filed version. The 1^st &2^nd opposite parties has averred that the complainant had taken his vehicle to the workshop of the 3^rd opposite party, alleging some complaint with the vehicle.  The service personnel in the workshop of the 3^rd opposite party had inspected the vehicle and such of those complaints noticed being minor in nature attended to the satisfaction of the complainant.  On each occasion the 3^rd opposite party had convinced the complainant that there was no manufacturing defect in the vehicle and that it was only his misplaced apprehension regarding the same.  With respect to wearing out of the tyres the 3^rd opposite party had noticed that the same was only on account of the misalignment of the vehicle caused due the rash and negligent use of the vehicle by the complainant.  The complainant had been charged for the repairs carried out on the vehicle as the same would not come within the purview of warranty since the damage caused was on account of external damage caused due to the rash and negligent driving of the vehicle by the complainant.  There is no defect, much less any manufacturing defect in the vehicle of the complainant, there is no merit or basis in the allegation of the complainant that he had to suffer severe mental agony and financial loss.  As there is no manufacturing defect in the vehicle of the complainant he is not entitled either in law or on facts to seek replacement of his vehicle or for refund of its price.  The complainant is not entitled for any reliefs sought for in the complaint & there is no deficiency in service and unfair trade practice from the part of 1^st & 2^nd opposite parties, hence complaint may be dismissed with compensatory cost to 1^st & 2^nd  opposite parties. 

The 3^rd opposite party in their version stated that the complainant is not maintainable either in law or on facts.  The complainant was always suspicious that the car was having some problems although in reality there was no real major issue with the car.  Regarding the averment about the wearing out of the front tyres it is submitted that the alignment of the front tyres had changed due to negligent usage of the car by the complainant and as a result the front tyres had worn out prematurely.  It is submitted that the alignment of the tyres gets altered due to negligent usage of the car on bad roads and gutters.  The complainant had not bothered to use the car carefully and the said wearing out of the tyres is the result of the same.  It is further submitted that there is no problem whatsoever with the gear box of the car and TATA Nano cars do not have power brakes.  The alleged shivering of the car is nothing but a result of the wearing out of the tyres due to misalignment caused by negligent usage and the same can be rectified by changing tyres.  The amount was charged since it was a damage caused due to negligent and rash use due to which the lower front portion of the car had hit on a boulder there by sustaining damages to the strut assembly, steering arm bracket and right side stub assembly.  The additional service package availed by the complainant does not cover such type of damages caused due to rash and negligent use of the car.  The vehicle was serviced by replacing the above parts and the complainant had taken delivery of the vehicle in full satisfaction.  There is no cause of action to file the complaint and the complainant is only trying to make unlawful enrichment by filing this complaint.  The complainant is not entitled to any of the reliefs claimed.  There is no deficiency in service and unfair trade practice from the part of 3^rd opposite party, hence complaint may be dismissed with compensatory cost to 3^rd opposite party. 

    Issues to be ascertained:

(i). Whether there is any unfair trade practice or deficiency in service from

     the side of opposite parties?

(ii). Whether the complainant is entitled to get the reliefs?

Issues No.(i) & (ii):- Both these issues are considered together for the sake of convenience.  The 1^st complainant has filed affidavit in-lieu of chief examination and has produced 8 documents which were marked as Exts.P1 to P8.  The complainant was examined as PW1 & was cross examined by opposite parties 1 to 3.  The commission report was marked as Ext.C1. The commissioner was examined as CW1. Opposite parties 1 & 2 have filed chief affidavit in-lieu of their chief examination.  There was no oral or documentary evidence from the side of opposite parties 1 & 2.  The 3^rd opposite party has submitted that the company has wound up & hence they have not filed proof affidavit.  The 2^nd complainant & opposite parties 1&2 filed argument notes.  The main allegation raised by the 1^st complainant is that the vehicle is having manufacturing defects.  It is averred in the complaint that on the next day of delivery itself the vehicle was taken to the workshop of 3^rd opposite party.  But the 1^st complainant has not produced any evidence to prove the same.  It can be seen from Ext.P2 that the vehicle was taken to the workshop only on 7/11/2012, i.e. after two months from the date of purchase of the vehicle. Ext.C1 also does not reveal anything about manufacturing defect.  During the cross examination of the commissioner, by the complainants, he has deposed that “Do you noticed any inherent manufacturing defect in the vehicle (Q) No (A).” So the complainant has miserably failed to prove that the vehicle was having manufacturing defects. But on going through Ext P4 it can be seen that there was a problem of wearing of tyre. Ext P4 was dated 16/01/2013. The same issue can also be seen from Ext.P5 which is dated 08/02/2013 & also it is mentioned in Ext.C1 that the replacement of tyre can be avoided if the remedial steps were taken by the service station earlier. So it is clear that 3^rd opposite party has not taken any steps to cure the alignment defect of the vehicle which forced the 1^st complainant to change the tyre.  The act of the 3^rd opposite party amounts to deficiency in service. The opposite parties 1 &2 being the manufacturer & the Regional Manager respectively are also vicariously liable for the omissions done by its dealer, the 3^rd opposite party, hence the opposite parties 1 to 3 are jointly and severally liable to compensate the complainant.

In the result, the complaint is partly allowed.  The opposite parties 1 to 3 are jointly and severally liable to pay Rs 25,000/- (Rupees Twenty Five Thousand Only) to the 2^nd complainant as compensation for the mental agony and pay Rs. 2,500/- (Rupees Two Thousand Five Hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9% per annum from the date of default till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 19^th  day of May,  2023.

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P.V.JAYARAJAN                 : PRESIDENT 

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PREETHA G. NAIR              : MEMBER    

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                                                                 VIJU V.R                          : MEMBER

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C.C. No. 184/2013

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

V.        COURT WITNESS:

VI.       COURT EXHIBIT

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PRESIDENT

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