BEFORE THE UDUPI DISTRICT CONSUMER DISPUTES REDRESSAL   

                           FORUM AT UDUPI (KARNATAKA)

PRESENT

SMT. SHOBHA C.V.                   :         PRESIDENT

SRI T.C.RAJASHEKAR              :         MEMBER

CONSUMER COMPLAINT NO.2/2011

ORDER DATED :27.06.2016

Between:

Sri Satish Kini,

Aged about 42 years,

S/o K.P.Kini,

Mahalasa Enterprises,

Salmara, Karkala,

Udupi District.

(Sri S.Gururaj Aithal,Advocate for the Complainant)

…………. Complainant

//  Versus  //

……. Opposite Parties

ORDER DELIVERED BY HON’BLE MEMBER SRI T.C.RAJASHEKAR

1.      This complaint is filed under Section 12 of the Consumer Protection Act 1986 (as amended) alleging deficiency in service as against the Opposite Parties claiming reliefs as under:

To direct the Opposite Parties to replace the defective vehicle with a defect free vehicle of the same model or refund the cost price of the vehicle along with interest and compensation plus cost of the litigation, etc.

2.       The brief facts of the case are as under:

The Opposite Party No. 1 is manufacturer of various TATA domestic and commercial transport vehicles including passenger cars of various models.  Opposite Party No.2 is the realized that Opposite Party No.1 and 2 have jointly, mischievously and wantonly cheated, defrauded and duped the innocent Complainant.  Knowing it full well, Opposite Party No.2 conveniently and wantonly did not mention the year of manufacture in the tax invoice.

3.      Complainant submits that by his letter dated 02.12.2009 brought the above facts to the notice of Opposite Party No.1 and demanded replacement of the defective vehicles.  Opposite Party No.1 through their reply dated 16.12.2009 admitted their fault and issued necessary directions in this regard.  The callous attitude of the Opposite Parties in the matter of replacement of the vehicle, necessitated the Complainant to write letter dated 27.01.2010 addressed to the Chairman of Opposite Party No.1 bringing to his notice the various ailments in the vehicle and once again demanded speedy action for replacement of the vehicle.  The assurance given in the replies dated 05.02.2010 and 16.02.2010 of Opposite Party No.1 have not been put into action till today which remained paper assurances only.  Inspire of the Complainants chain of correspondences over his grievances dated 26.02.2010, 30.04.2010, 01.06.2010, 28.06.2010 and 17.08.2010 addressed to the Chairman and Vice Chairman of Opposite Party No.1 they went on giving evasive and skipping replies asking Complainant to cling on the matter stating that they will revert back to him shortly.  This attitude of the Opposite Parties is not becoming of an institution of international repute.

4.      Complainant submits further that by the letter dated 15.06.2010 of the Opposite Parties No.1 and 2 ultimately left with no alternative but to confess and admit their guilt that they have sold 2007 model TATA Car to the complainant fraudulently and falsely representing it was 2008 model.  As the Complainant was not fully recovered from his shock, he was put from pan to fire from the reply sent by the Opposite Parties.   From the totality of exchange of various letters and replies between the complainant on the one hand and the Opposite Parties on the other.  It is conclusively proved that the vehicle sold and delivered to the Complainant is an old one, sub-standard, mechanically defective and not up to the standard as represented and that Opposite Party Nos.1 and 2 have joined hands and sold to the Complainant 2007 model vehicle, falsely representing that it was 2008 model and caused the Complainant untold extreme hardship, tension, mental agony and financial loss.  During the inherent defects in the vehicle and its sub-standard, the Complainant has been prevented from comfortably using the vehicle.

5.      The Complainant on account of the defects in the vehicle from the day one of its purchase could not concentrate on his business and is made to run from pillar to post and incur various miscellaneous expenses apart from spending huge amount in repairing and service of the vehicle.  The Complainant is and has been spending sleepless nights and has been put to acute mental agony, stress and strain for which the Opposite Parties are liable to compensate my client adequately which my client modestly estimates at Rs.5,00,000/-.

6.      That the Complainant is a consumer of service from the Opposite Parties which they have failed to provide to the complainant.  Therefore, the Opposite Parties are guilty of deficiency of service and unfair trade practice as stated above, Consequently the Complainant has suffered substantial financial loss, injury, mental agony, tension, hardship etc. for which the Opposite Parties are liable to compensate the Complainant adequately.  That left with no alternative, the Complainant got issued a legal demand notice dated 08.10.2010 to the Opposite Parties calling upon them (1) to replace the defective vehicle with a brand new defect free vehicle of the same make or in the alternative pay him cost price of the vehicle with interest at 18% p.a. from the date of invoice till payment   (2) to pay the Complainant a sum of Rs.5,00,000/- towards compensation for the reasons stated supra (3) to pay the Complainant a sum of Rs.10,000/- expenses incurred in the exchange of chain of correspondences. (4) to pay Complainant Rs.5,000/- towards travelling expenses (5) Rs.2,500/- being the cost of this demand within 15 days of receipt of this notice.  The said notice has been served on Opposite Party No.1 and 3 where the notice sent to Opposite Party No.2 is returned unserved.  Instead of complying with the just and legitimate demands made in the notice.  Opposite Party No.1 sent an interim reply dated 18.10.2010 under which they requested the Complainant not to proceed with the action on the ground that they have been making enquiry and would revert back to the Complainant after receipt of reply from their counterparts.  So far the Opposite Party No.1 has not chosen to meet the demands of the Complainant.  Opposite Party No.3 though impliedly admitted in their reply dated 25.10.2010 that they agents of the Opposite Party No.1 failed to comply with the demands.  Hence the Complainant is constrained to approach this Forum.    Hence this complaint with above reliefs.

7.       Version notices served to the Opposite Parties by R.P.A.D.  Inspire of service of notices, Opposite Party No.2 did not choose to appear before this Forum  and contest the matter, hence Opposite Party 2 placed ex-parte.  Opposite Party No.1 and 3 appeared through their counsel and filed version.

8.       Opposite Party No.1 has stated in his version as under:

          That the OP, TATA Motors Limited a company duly incorporated under the provisions of the Companies Act, 1913 and having its registered office at Bombay House, 24, HomiMody Street, Mumbai – 400001 is the renowned manufacturer of various types of commercial vehicle (vehicles) and passenger cars (cars) and is widely acclaimed for its class and quality.  it is submitted that the cars and the vehicles manufactured by the answering OP pass through stringent quality checks and road trials before the actual commercial production starts and the cars and vehicles are marketed only after being approved by the Automotive Research Association of India (in short ‘ARAI’).  The cars and vehicles manufactured at the plant of this OP are also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for dispatch to the authorized dealers appointed on a ‘principal to principal’ basis for sale of the cars and vehicles.

9.      This Opposite Party is ably supported by the excellent dealer ships / authorized service centres, like the 2^nd and 3^rd Opposite Party, having excellent workshop setup for after sales servicing of the cars, which are manned by qualified and experienced personnel only.  It is submitted that the customers of all passengers cars manufactured by the answering Opposite Party  are provided services through a large network of around 119 authorized dealers, 245 Tata Authorized Service Centres (TASC), 219 Tata Authorized Service Points (TASP) and 222 Tata Authorized Service Outlets (TASO) workshops.  The network of such workshops/service points is being continuously enhanced and widened in order to bring maximum and efficient services as closer to the customers’’ doorsteps as far as possible.  Presently, the answering Opposite Party has such workshops in excess of 800 in numbers across the country.  These workshops provide scheduled services, running repairs, major repairs, spare – parts support and even carry out accident repairs to the passenger cars and utility vehicles.  In the city of Udupi, presently number of such workshops is one.  It is stated that all dealer workshops have dedicated helpline for attending to any breakdown, thus providing assistance to the customers in distress situation and an all India 24 x 7 Toll free helpline is operational over and above the dealership helpline. Every procedure for service/check ups is standardized and procedures are laid down for the service centers, work shops etc. for carrying out necessary services/check-ups replacement as may be required.  This Opposite Party has carved a niche for themselves in the products as well as in after sales service across the country.  The manufacturers of the cars and the cars owner are bound by the terms and conditions of the warranty policy applicable for the cars.

10.    Opposite Party No.1 has submitted that at the outset this answering Opposite Party denies all the allegations contained in the complaint, except those, which are specifically admitted hereinafter in this written statement, and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed.  It is also submitted that anything stated in the complaint contrary to and / or inconsistent with what is stated in the present written statement be deemed to be expressly denied.

11.    Opposite Party No.1 has submitted further that along with the preliminary points the Opposite Party has submitted parawise reply as under:

         The averments made para I, II and III sub Para 1 and 2 of the complaint are matters of record and hence, do not require any comment therein.  As regards to the averments made at Para III Sub Para 3 of the complaint, the deponent states that this Opposite Party, as a matter of business practice, do not deal with any customer for sale of the new car or vehicle, hence cannot comment what transpired between the complainant and the 2^nd Opposite Party.  However, it is stated that all the cars manufactured by this Opposite Party undergo strict quality checks, certified and thereafter dispatched to the dealers across the country.  The car sold at the dealership point also undergoes pre-delivery inspection and being satisfied with the condition and performance of the car, it is sold to the consumers and in this case also, the said process ought to have followed at the Opposite Party No.2.  This Opposite Party has been further given to understand that there was no problem with the car at the time of delivery and the complainant had taken the delivery after proper inspection and satisfaction and fully knowing the fact that the car purchased by him was of 2007 model and sold after an year.  The complainant has also received a discount of Rs.70,000/- with certain accessories including sun control film, mat sets, MP3 player, etc. free of cost as a complimentary package towards purchase of the car and has acknowledged the same in the letter dated 07.10.2008 addressed to the 2^nd Opposite Party.

12.    The averments made at Para III sub Para 4 of the complaint are denied as false, save and except which are maters of record and the complainant be put to strict proof of the same.  It is submitted that car of the complainant reported first time on or around 23.10.2008 at 1,333 kms. (approx.) for 1^st service along with the purported complaints of front LHS type inner wear and knocking sound at cold start and was addressed satisfactorily by checking and adjusting front wheel alignment and replacing cable tie big size on paid basis.  However, the said amount was later reimbursed by the dealer and the complainant has also acknowledged the same by signing a letter dated 24.02.2009.  Thereafter, the car reported on or around 19.01.2009 at 4,382 k.m. (approx.) for the problem of screeching noise from engine when on inspection inter cooler was found to be broken.  The said part was ordered and the alleged problem was rectified by r/r coolant hose pipe and inter cooler pipe on charge basis.  The car in question later reported on or around 24.02.2009 at 5,702 kms. (approx.) for scheduled service wherein intercooler bracket was replaced under warranty and general and battery gravity checkup was done free of cost.  Afterwards, the car reported on or around 13.05.2009 at 10,318 kms. (approx.) for 2^nd service wherein scheduled service and standard checks were done and neither any complaint was reported by the complainant nor observed by the service center.  Also, washing, front wheel alignment, air filter cleaning and change of consumables like engine oil, oil filter, fuel filter etc. were done as per standard procedure.  The subject car then reported on or around 08.07.2009 at 13,058 kms. (approx.) for scheduled service when checking and adjusting of front wheel alignment was done free of cost.  Further, the car reported on or around 31.08.2009 at 15,982 kms. (approx.) for scheduled service wherein checking and adjusting of front wheel alignment was done on cost basis and wheel balancing was done free of cost.  The said car later reported on or around 11.09.2009 at 16,482 kms. (approx.) for the asserted problems of engine oil leakage and power steering oil leak and was attended by cam shaft rear oil replacement, remove and install power steering oil container, power steering oil top p and replacing gasket, reservoir assembly, etc. under warranty.  Subsequently, the car reported on or around 25.11.2009 at 19,783 kms. (approx.) for 3^rd service besides the complaints of fuel avg. low and under carriage noise wherein normal maintenance services like washing, front wheel alignment balance wheel and change of consumable like engine oil, oil filter, fuel filter, etc. were done and the alleged complaints were redressed by replacing assy, pivot bust, bush antiroll bar and assy. hanger on charge basis.  The car of the complainant further more reported on or around 23.12.2009 at 21,184 kms. (approx.) for scheduled service apart from the issues of air condition flow less and engine overheating which was repaired by flushing cooling system, renewing temperature sensor and replacing the switch with water proof coupler under warranty.  Also coolant was replaced on paid basis.  Later the car reported on or around 09.01.2010 at 22,388 kms. (approx.) for scheduled service along with accidental repairs wherein standard checks, washing and front wheel alignment was done free of cost.  The car in question next reported on or around 23.02.2010 at 25,192 kms. (approx.) for the purported complaints of tyre wear high, engine noise level high, battery discharged, under carriage noise and screeching noise from engine when it was set right by renewing two tyres, front wheel alignment and replacement intercooler under warranty and replacing poly vee belt on paid basis.  The complainant has been satisfied with services rendered and has acknowledged the same by signing a satisfaction note dated 23.02.2010.  Lastly, the car reported on or around 12.05.2010 at 29,951 kms.(apprx.) for scheduled service wherein normal maintenance service and general check up was done neither any problem was recorded nor noticed by the workshop.  It may be noted that as per the warranty policy, all the normal maintenance services and consumable items are to be carried out on paid basis, hence the complainant was not entitled to get any warranty benefits for carrying out the job works of front wheel alignment, wheel balancing, washing, change of engine oil, oil filter, fuel filter, coolant, etc.  The Opposite Party states that the observations recorded by the service advisor on the job cards and steps taken for resolution of the complaints, would clearly establish that whatever complaints raised by the complainant, were running complaints and recommended services, which required to be attended for extensive usage and improper maintenance of the car.

13.    With regards to the averments made at Para III sub para 5 of the complaint, the deponent states that upon receiving an email dated 09.11.2009 from the complainant regarding tyre problem, the Opposite Party vide letter dated 17.11.2009 has intimated the Regional Office, Bangalore to look into the matter.  Subsequently, the car of the complainant was checked at the Udupi workshop wherein no manufacturing defect was found in tyres.  The tyre wear has occurred due to usage of the car and road condition.  However, the Opposite Party, as gesture of goodwill, offered to replace two tyres free of cost.  The said fact was duly communicated to the complainant telephonically and also vide letter dated 30.11.2009.  It is reiterated that an offer to provide the two free tyres to the complainant cannot be, by any stretch of imagination, construed as admission of any defects in the tyres of deficiency in service on pat of this OP.  

14.    The deponent denies all the averments made at Para III sub Para 6 of the complaint and submits that complainant has purchased the car from the Opposite Party dealer knowing fully well the same has been manufactured 2007, against which the complainant has received discounts on purchase price along with free accessories and has affirmed the same by issuing a letter dated 07.10.2008 to the 2^nd Opposite Party.

15.    The averments made at Para III sub Para 7, 8 and 9 of the complaint are denied as false, save and except which are matters of record and the complainant be put to strict proof of the same.  It may be clarified that in response to the letter dated 02.12.2009 sent by the complainant, this OP just intimated the problem of the complainant to the Regional Office, Bangalore and requested complainant to contact Territory Manager for any assistance vide reply dated 16.12.2009 and there was no admission of any fault on behalf of this Opposite Party.  It may be further clarified that the complainant’s letter dated 27.01.2010 was duly replied on merits by this OP vide replies dated 05.02.2010 and 16.02.2010 wherein the complainant was offered replacement of two tyres free of cost on goodwill basis.  it is submitted that the letters dated 26.02.2010 was 30.04.2010 replied by this Opposite Party  vide reply dated 19.05.2010 requesting him to avail the benefits of replacement of two tyres on goodwill basis.  Finally, a detailed reply was given to the complainant vide reply 19.05.2010 requesting him to avail the benefits of replacement of two tyres on goodwill basis.  Finally a detailed reply was given to the complainant vide reply dated 15.06.2010 stating correct facts and reasons for rejection of the claim of the complainant.  However, the complainant was still adamant and refused to take the two tyres on goodwill basis and made an illegal demand of complete replacement of car.  it is reiterated that the complainant after being fully conversant with the fact that car in question was of 2007 model, has purchased it and hence, cannot be permitted to challenge the terms agreed by him.  this Opposite Party herein relies on letter dated 07.10.2008 issued by the complainant to the 2^nd OP to substantiate the pleadings as made above.

16.    The deponent denies all the averments made at Para III sub Para 10 and 11 of the complaint and states that the complainant has failed to produce any cogent report from the Authorized Laboratory defined under the Consumer Protection Act, and in the absence of same, the allegation of manufacturing defects in the car are denied.  Without prejudice to the above, it is submitted that whatever grievance has been brought by the complainant, the same was attended and rectified satisfactorily under the warranty policy free of costs as the complainant has issued satisfaction note towards the exceptional services provided by the workshop hence, there cannot be any question of manufacturing defect or deficiency in service or unfair trade practice meriting replacement of the car.

17.    With regards to the averments made at Para III sub Para 12 of the complaint, the deponent submits that legal notice sent by the complainant was properly replied by this Opposite Party vide reply dated 18.10.2010.  It may be elucidated that the alleged contention of the complainant is against the terms and conditions of the warranty of the car to replace it when there is no defect.  The warranty of the said car clearly stipulates that the obligation of the manufacturer under the warranty shall be limited to repair and replacement of such parts, free of costs, if found to be defective when the said car being brought to the manufacturer or the authorized dealers within the warranty. Nevertheless, the warranty given at the time of sale of the car has already lapsed on 08.04.2010 and the repairs/replacements can be undertaken on charge basis only.

18.    The contents of Para III sub Para 14 of the complaint requires no traverse.

19.    The averments made at Para III sub Para 15 of the complaint are denied as false and the complainant be put to strict proof of the same.  It is stated that the complainant has failed to produce any record or documentary proof that the car in question is being used for his livelihood and in the absence of the same, the complainant, by any stretch of imagination, cannot be termed as a consumer to invoke the provision of the Consumer Protection Act.

20.    As regards to the averments made at Para III sub Para 15 and 16 of the complaint, the deponent states that the complainant has purchased the said car after proper satisfaction and understanding that it is of 2007 model and is debarred from alleging the car suffers from inherent defects after using it for almost 2 years.  had there been any manufacturing defects in the car, it would not have covered more than 29,000 kms. Further the alleged problem of tyre wear cannot be, by any stretch of imagination, construed as inherent defect in the car.  Without prejudice to the above, it is stated that the alleged problem has been rectified by the Service Centre to the satisfaction of the complainant and at present there is no outstanding issue in the car.  Consequently, there is no cause of action left with the complainant against this OP.  Hence, in view of the foregoing submission this Forum has no jurisdiction to adjudicate upon the instant complaint.

21.    The contents of Para III sub Para 17 do not require any traverse.

22.    The claims made at Para IV of the complaint by the complainant are denied as false, unsustainable and without any merit and the complainant be put to strict proof of the same.  it is submitted that the complainant has no and cannot have any grievance against the answering OP and the complainant has failed to prove any cause of action of prima facie case in the complaint against the OP and therefore, failed to pray for any reliefs, hence this Opposite Party is fit to be discharged from the instant proceedings in the absence of any prima facie case.   Hence prayed to dismiss the complaint with costs.

23.    Opposite Party No.3 has stated in his version was under:

         The above complaint as against this OP is false, frivolous, vexatious and the same is not maintainable either in law or on merits.

24.    Opposite Party No.3 has submitted that the complainant is neither the consumer as against this OP nor there is any service much less the deficiency of service rendered by this OP.  Hence this case pleaded by the complainant in his complaint as against this OP is out of the preview of Sec. 12 of the Consumer Protection Act, 1986.  Hence the above complaint is liable to be dismissed on that score alone. 

25.    Opposite Party No.3 has further submitted that this Forum has no jurisdiction to try the above complaint.  That the complainant purchased the car from Opposite Party No.2 at Bangalore and this Opposite Party did not play any role in the matter of selling of the car except attending to the repair work of this car.  Further there is no deficiency of service alleged by the complainant as against this Opposite Party in the above complaint.  Hence on that score alone the above complaint is liable to be returned to the complainant for presenting the same before the proper Forum.

26.    Opposite Party No.3 admits in toto the averment contained in para III (2) of this complaint.  That this Opposite Party is not aware and does not admit the various allegations / averments made in para III(3) to (17) of the complaint.  The complaint is put to strict proof of the said allegations.

27.    Opposite Party No.3 submits that, it being a Authorised dealer of the Opposite Party No.1 on few occasion had attended to the repair work (after sales service)  to the complainant’s car.  That this Opposite Party had neither sold nor it is a party to any one of the various transaction / incident narrated in the above complaint.  That as stated earlier this Opposite Party being the authorized dealer of Opposite Party No.1 is expected to give the service for all TATA cars which is brought to their workshop and this Opposite Party had given such after sales service to the aforesaid complainant on few occasion.  Further, as there is no deficiency of service alleged by the complainant as against this Opposite Party the above complaint is liable to the dismissed as against this Opposite Party.   That this Opposite Party submits that there is no liability of whatsoever nature as against it, to fulfill the unjust demands as made in the above complaint by the complainant.

28.    Opposite Party No.3 further submits that it is wholly a unnecessary party and hence the above complaint is bad for misjoinder of parties. That this Opposite Party submits that as per the averments contained in the complaint, the Complainant had taken his car to various authorized workshops such as Automatrix Udupi and Mangalore and has also taken his car to some other Service Station i.e. Karkala Service Station and they are not made parties to the above complaint.

29.    Opposite Party No.3 contended that there is no cause of action for the complainant to file the above complaint as against this Opposite Party and the cause of action alleged in the above complaint is false, imaginary and untenable under law.   This Opposite Party further submits that it is not at all liable to pay any compensation amount to the complainant as claimed in the above complaint.  Under the circumstances, it is prayed that the Forum may be pleased to dismiss the complaint with cost as against this Opposite Party as devoid of any merits in the ends of justice.

30.    In support of the averments made in the complaint, Satish Kini      (CW-1) – Complainant filed affidavit reiterating what has been stated in the complaint and the documents got marked Ex.C-1 to C-61.  In support of the Opposite Parties, Opposite Party No.3 (RW-1) filed evidence by way of affidavit and answered the interrogatories.  Heard the parties. .

31.    On perusal of the complaint and the versions of the parties we understood this dispute is regarding selling of defective and old model vehicle to the complainant by the opposite parties. As per complaint allegation, the complainant had purchased a TATA Indigo VS (hereinafter called the car) from the opposite party during October 2008, and it was represented to him by the Opposite Party  No.2 that the stock of 2008 model defect free stock is available.  On this representation and the assurance the complainant had purchased the said car for his domestic use. Later after running it for 1000 K.M. the car developed problem.  After repair for so many times he also came to know the Opposite Parties have sold the model of 2007 instead of model 2008 by misrepresenting, hence Opposite Parties  have sold both manufacturing defective and old model car to the complainant and committed the deficiency in service and unfair trade practice. The opposite parties contended that, the car sold by them is manufacturing defect free, and the problems faced by the complainants are attended by the OPS properly. Regarding the old model the OPS contend that the complainant is aware of the model number as 2007 which he is buying and for that we have offered an amount of Rs.70,000/- as discount and other free accessories at the time of purchase and there is no any deficiency of service or un fair trade practice committed by the Opposite Parties.

32.    We also noticed from the order sheet that some few interlocutory applications filed by the parties are pending of disposal.

1. Application No I dated 30.03.2011 under section 94(e) and Sec.151 of CPC by Opposite Party No.3 praying for hearing the matter on jurisdiction as preliminary issue.
2. Application No II filed on 30.03.2011 under sec. 13(1)c of the CPA 1986 by the Opposite Party No.1 praying for appointment of expert commission to analyse and find out any manufacturing defect in the car.
3. Application No III dated 23.11.2011 under section 94(e) and Sec.151 of CPC by Opposite Party No.3 praying for dismissal of complaint.

33.    The I.A. No.I is concern the Opposite Party No.3 in his affidavit contends that, the complainant had purchased the car from the Opposite Party No.2 who is at Bangalore. This Opposite Party No.3 is only authorised dealer of the Opposite Party No.1 and only attended the repair work and after sale service. There is no any deficiency of service alleged against this Opposite Party No.3 and is an unnecessarily arrayed as party hence pray for the dismissal of the complaint as lack of jurisdiction. The opponent the complainant oppose the application on the ground that, the Opposite Party No.3 is the branch/franchise of the Opposite Party No.1 and as per Sec. 11(b) the complaint can be filed in the place where the Opposite Party  carries on business, the Opposite Party No.3 is having his office in Udupi and in the Udupi District hence this forum have jurisdiction and hence the application may be dismissed.

34.    On perusal of the contentions of the parties and the documents produced in the complaint we find the Opposite Party No.3 had admitted that he is the dealer of the Opposite Party No.1 where he is authorised to repair or service the vehicles sold by the Opposite Party No.2. It is also seen from record that this Opposite Party No.3 has attended the repair work and also regular servicing of the car.  What is alleged in the complainant is apart from the model discrepancy manufacturing defect is also alleged against OPS. Obviously the party who attended the repairing of defect is also an important party in deciding this complaint.  Also as the complainant contended that, the Opposite Party No.3 is the branch/franchise of the Opposite Party No.1 and as per Sec. 11(b) the complaint can be filed in the place where the Opposite Party carries on business, the Opposite Party No.3 is having his office in Udupi and in the Udupi District and this contention is convincing and acceptable to us.  Hence, we are of the considered opinion that this application is to be rejected and hence the I.A. No.I dated 30.04.2011 is hereby dismissed.

35.    The I.A. No. II is a prayer for appointment of expert commission. The Opposite Party No.1 filed this application contending that the case of the complainant is that his car got problems and in spite of the repair and service done and problem set righted still the problem persisted and defect manifested and there is allegation of manufacturing defect in the car. As per consumer protection Act 1986 Sec. 13(c) when there is technical problem which cannot be decided without expert advice the matter can be referred to expert opinion. The Opposite Party No.1 relied on few judgments of the Honourable National Commission where it is held the complainant has to prove the manufacturing defect by submitting the expert opinion. The OP 1 also states that even as per consumer protection Act also the forum can refer the matter to the expert and the expense of the expert shall be deposited by the complainant.  Hence the OP 1 prays for the direction of the Forum to the complainant, to produce the expert report and prove the manufacturing defect. However the opponent/ complainant resists the application on the ground that, the specific case of the OP 1 is that their vehicle go through different checks and trials before commercial production and marketed only after approval from the Automotive Research Association of India (ARAI), OP 1 manufacturing plant thoroughly inspected for control system, quality check and test drive before passing through the factory works for dispatch to the authorised dealer. That, if the subject car had passed through all the above tests, why the OP 1 requires the vehicle shall be tested by the authorised/experts laboratory? That, the present application is filed to see that the vehicle is sent to their own henchman and partisan ARAI who are their counter parts. That, it is evident from the OP 1  version that the defect in the vehicle was due to accident, and the problem is not with the bad maintenance as alleged but OP 1 himself revealed how many times service made and repair undertaken. That, the vehicle itself defective while selling itself. That, the opposite party himself admitted in their letter dated 15.6.2010 that they have sold the 2007 model car in 2008. That, sending of car to Pune ARAI is not a small item and it is expensive, and hence the application cannot be allowed.

36.    On considering the fact of the case and the grounds of application and the objection, our view is, the complainant has to prove the manufacturing defect either by circumstantial evidence or by showing the defect in manufacturing process or expert report. The burden will on the complainant as per law and as per decided cases of higher courts. As we seen the application is praying for the direction to complainant to submit the report from any appropriate laboratory. There is no prayer to send it to ARAI only. The prayer is on relying on sec. 13(c) of CPA 1986. As per section it is not mandatory to have vehicle inspected and get report to prove manufacturing defect. It is only a suggestive if defect cannot be proved by ordinary diligence then an expert help can be taken. Since the complainant himself who has to prove the manufacturing defect is opposing the application and confident of proving the manufacturing defect without expert opinion there is no reason to allow the application and unnecessarily burdening the complainant. Hence the IA No II filed on 30.03.2011 is hereby rejected.

37.    Application No III dated 23.11.2011 filed by the Opposite Party No.3 for the dismissal of the complaint on the ground of the complaint against the Opposite Party No.2 is dismissed on 03.08.2011 by this forum on the reason for default of steps not being taken to serve notice to the Opposite Party No.2 in spite of several opportunities.  It is noted from the order sheet that on 22.11.2013 a memo has been filed by the Opposite Party to take steps against the Opposite Party No.2, the said memo allowed by this forum on 28.11.2013 and notice has been issued to Opposite Party No.2. On being not served the complainant applied for substituted service through news paper publication which was also allowed by this forum and after paper publication made the Opposite Party No.2 called on 16.01.2014 and on being not appeared the Opposite Party No.2 placed Ex parte. This being the situation the application has become defunct at this stage. In our considered opinion, the consumer legislation is not strict procedural legislation and too much technicalities are not adhere to, also in the interest of justice to give an opportunity and to avoid duplication of litigations the matter of lapse in procedure not given much weight. Hence application need no adjudication and hence disposed of as defunct and no order made. Application to be returned to the applicant on request.

38.    After the applications disposed of thus, we form the following points to be decided in resolving this dispute:

1. Whether the complainant is a consumer under the Consumer Protection Act 1986?
2. Whether the complainant proves the manufacturing defect as alleged in the complaint and there is deficiency in service from their part?
3. Whether the opposite party proves that the model 2007 was sold to the complainant instead of 2008 was within the knowledge of the complainant and there is no unfair trade practice from the part of the opposite parties?
4. Whether the complainant entitled for the prayed relief?
5. What order?

39.    We on examination of the evidences and study of the documents produced and the arguments of the parties being heard answered the above points as under:

Point No.1       :       In the affirmative.

Point No.2       :       In the negative.

Point No.3       :       In the affirmative.

Point No.4       :       In the negative.

Point No.5       :       As per final order.

REASONS

POINT NO 1:

40.    It is evident from the document that the complainant had purchased a car TATA INDIGO DIESEL VS version from the Opposite Party No.2 and the Opposite Party No.1 is the manufactures and the Opposite Party No.3 is the service provider and dealer of Opposite Party No.1 which are the facts undisputed. Also there is consideration of Rs.4,85,188/- being paid by the complainant which is not in dispute. Hence there formed the relation of consumer and trader and service provider between the complainant and the opposite parties. Hence we answered the Point No.1 in the affirmative.

POINT NO.2: 

41.    The complainant alleges the manufacturing defect in the car stating that the car after 1000 K.M. of use started problem of pulling to left and it was repaired in M/S Auto matrix an authorised dealer of Opposite Party in Udupi and spend Rs.238/- for repair on 23.10.2008, that, after 4382 K.M. some noise developed in the engine and it was found the inter cooler mounting brackets were broken which was got repaired with the cost of Rs.548/-, that within a short span of using he realised and got detected that all was not well in the vehicle, that the car lost its wheel alignment, tyre of the car worn out prematurely after running for 18600/- K.M. The other allegations are related to opposite party’s irresponsibility in responding  to correspondences and not properly attending of service and false promises. The other main allegation is regarding selling of 2007 model in place of 2008 indented which will be discussed in the next point of issue.

42.    On careful study of allegations, the main ground of manufacturing defect is, Pulling to the left and spend Rs.238/- and braking of the inter cooler mounting brackets and spent Rs.548/- and wearing out of tyre prematurely within 18000/- K.M. of running.  Are these above stated problems are because of manufacturing defect in the car?  It is to be noted that the car was purchased from Bangalore and it was not stated anywhere  in the complaint that the car was delivered at Udupi which gives presumption that the car was brought by driving down to Udupi about 700 plus K.M. which purely depends on road conditions. Such a continuous long drive might have exposed small defects in balancing which was corrected at the cost of Rs.238/- only. We presume it is a minor trivial which generally not attributed to manufacturing defect unless there is proof of expert report. Regarding the inter cooler mounting brackets is concern it is possible that after running for 4382 K.M. there may be jumps due to road conditions. As we understood the inter cooler mounting brackets are small “L”shaped (little modified depending on the structure of the vehicle) metal structure mainly holding the radiators/ coolers. However from the documents it is noted that the expenses paid for the inter cooler mounting brackets were refunded by the Ops. Accepting the warranty of the vehicle. We note here the complainant not produced any warranty card but opposite party not denied the warranty hence we understood the car is in warranty period only. Again this small part getting broken in our view cannot be attributed to manufacturing defect and also as we seen the part has been replaced and if at all any manufacturing defect in the inter cooler mounting brackets has been rectified and the defect is cured.  The question of wearing out of tyre cannot be attributable to the manufacturing defect as the quality of tyre also an issue to be decided. The bad quality tyre also bound to worn out soon. We have instance that even in old cars the replaced new tyre also wearing out soon which definitely not attributable to manufacturing defect. Unless there is tested report and proven record to show that the premature wearing out of tyre is because of defect in the vehicle chassis or the construction, cannot be attributable to manufacturing defect that too after the vehicle ran for 18000 K.M.  We opine the uneven wearing off should have been noticed much earlier itself which not the case of the complainant. Also it is an admitted fact that the opposite party as a good gesture replaced the two worn out tyres and taken a satisfaction note from the complainant. The EX- C43 is the satisfaction note date 23.02.2010 given by the complainant which shows the complainant is satisfied with regard service done to cure the defect of 1) Tyre wear 2) inter cooler bracket cut 3) pending main issue…..4) received two no of tyres from H.M. It also reveals prompt action taken as front two tyres replaced and inter cooler assembly replaced with cost of Rs.4,884/- born by the Opposite Party (EX-C45). On record it shows the complainant is satisfied on 23.02.2010 after car being purchased on 07.10.2008.

43.    We have traversed through all the invoices and service reports produce by the complainant and find no major defect complained or reported or rectified by the opposite party during periodical service. Majority of the work attended are of maintenance like coolant and oil changing, wheel alignment and balancing, Gasket, reservoir assembly, oil seals, water proof coupler, few filters and kits which are of consumable in nature which will not depict any manufacturing defect in the car.

44.    With regard to allegation of not proper response to correspondence and service points we are not convinced with the allegations. There are numerous correspondences from the Opposite Party side and also measures taken to satisfy their complainant. Even the complainant has given a satisfaction note also. It seen from the record even once the Opposite Party No.1 representative met the complainant in Hanuman Motors in resolving the issue.  The allegation is baseless.

45.    In our opinion, the complainant has not proved the manufacturing defect in the car as alleged or deficiency in service provided by the Opposite Parties. (There is no allegation in the service provided by the Opposite Party No.3 in the complaint.). It is pertinent to note that the complainant himself resisted the application of the Opposite Party for obtaining expert report. Hence in our considered opinion trivial problem and few of them attended and satisfied, cannot be attributable to the manufacturing defect unless there is proven documents. Hence we answered the Point No.2 in the negative.

POINT NO.3:

46.    The other allegation with regard to unfair trade practice by the opposite parties the complainant states that, in view of persistent inherent problem he got the vehicle intensively checked up and on such investigation the complainant did informed that the vehicle sold to him was of 2007 model as against their representation of its model as 2008 and it amount to Unfair Trade Practice and the Opposite Party No.1 & 2 have jointly, mischievously, and wantonly cheated, defrauded and duped the innocent complainant, knowing it fully well. Complainant states that Opposite Party No.2 conveniently and wantonly did not mention the year of manufacture in the tax invoice.  So the allegation is the Opposite Parties No.1 and 2 have misrepresented the model No.2007 as 2008 and sold it hence there is unfair trade practice. The Opposite Party is not disputing the model as 2007 been sold to the complainant. But the question is whether there is misrepresentation and there by unfair trade practice. Hence this point is framed by burdening the Opposite Party to prove that there is no misrepresentation.

47.    While closely examining the evidence of the opposite parties we find an interrogatory served by the complainant to the Opposite Party No.3 the Question No.7 which specifically suggested as whether is Opposite Party No.3 disputes the model number of the car as 2007. While answering the interrogatory the Opposite Party No.3 referred a letter dated 07.10.2008 written by the complainant to Opposite Party No.2 and states that the letter reveals the model as 2007.  Obviously our attention diverted towards the letter which the Opposite Party enclosed the copy of the letter with his reply to interrogatories.  After seeing the contents of the letter we have more shocked than the complainant himself when he came to know that the model sold to him is of 2007 instead of 2008. The letter signed by the complainant himself and letter shows it has been received through Fax by the Opposite Party No.3 from the Opposite Party No.2

48.    Contents of the letter which is addressed to Opposite Party No.2, The Chief General Manager, Manipal Motors Pvt. Ltd. Bangalore clearly states that the complainant is aware of the model as 2007. The complainant states referring to his car as TATA INDIGO VS and date of booking as 07.10.2008 that

“I am fully aware that the vehicle bearing chassis # 5845 & engine     # 4244 is a 2007 model. I have seen the vehicle and am fully satisfied with it.

I have received a discount of Rs.70,000/- with certain accessories including a sun control film, mat sets an MP 3 player etc. as complimentary package on purchase of the above said vehicle.

Kindly register this vehicle as a 2008 make and model and arrange for it to be delivered immediately”.

49.    In our view the complainant not came with a clean hand. He has suppressed his consenting for buying model 2007 in 2008 and on the one breath prompted the Opposite Party No.2 for manipulating the model of the car and from other breath taken false allegation in the complaint that the Opposite Party No.2 have misrepresented and sold 2007 model instead of 2008.  With this documentary evidence we came to conclusion that the model of the car as 2007 is within the knowledge of the complainant and the Opposite Party No.1 and Opposite Party No.2 have not misrepresented and hence there is no unfair trade practice committed by the Opposite parties. As such we answered the Point No.3 in the affirmative.

POINT NO.4:

50.    As we seen from the above discussions the complainant even though complained of manufacturing defect some  of which rectified by the Opposite Party to the satisfaction of the complainant and some other defect, in our opinion cannot be attributed to manufacturing defect either by the nature of defect or without expert opinion. The Opposite Party with documentary evidence, a letter written by complainant to Opposite Party No.2 proved that the selling of the 2007 model as 2008 is within the knowledge of the complainant and the complainant consented for buying the model of 2007 in the year 2008 with discount of Rs.70,000/- and some other free accessories. Hence, we are of the opinion that the complainant not proved the manufacturing defect and the Opposite Parties proved that there is neither deficiency of service nor unfair trade practice committed by them and hence the complainant not entitled for the prayed relief. The complaint is worth to be dismissing.

51.    We come across a stunning unfair trade practice from the part of the Opposite Party No.2. As we discussed the document a letter written by the complainant/customer dated 07.10.2008 where in the complainant/customer requested the Opposite Party No.3.  The Manipal Motors Pvt Ltd.  To sell the 2007 model as 2008 after accepting some discount and free accessories. From the records the document the SALE CERTIFICATE (Ex-C4) and APPLICATION FOR REGISTRATION OF A MOTOR VEHICLE in Form No.20 (Ex-C6) shows that the Manipal Motors Pvt Ltd, have done the same.  Both the documents declare and show that the year and month of manufacturing as Sept 2008.  Is it not an unfair trade practice?  Yes In two ways, first, a misrepresentation to Road Transport Office where they have registered the vehicle as the year of manufacture as 2008. Secondly the registration documents said to be birth certificate of the vehicles. The consumers/customers who buy in the second hand market will believe the R.C. issued by the RTO authorities the model as 2008 and will be duped and defrauded.  Is it not a cheat and fraud on society and the prospective consumer? In our opinion both the complainant and the opposite party no 2 have colluded and defrauded the RTO authorities and the general public. It is to be noted here that this unfair trade practice in not effected the complainant herein and not amount of deficiency of service or unfair trade practice against complainant.

52.    We deem fit for resorting Sec. 14 (1)(f) to direct the Opposite Party No.1 and 2 to discontinue this kind of unfair trade practice in future and we expect the opposite parties will take steps to correct the wrong done in month and year of manufacturing in the concerned records of the vehicle.  Also we deem fit to bring to the notice of the complainant that, the consumer protection law is not meant for this kind of frivolous complaints but for the protection and benefitting the consumers who really suffered. 

POINT NO.5:

53.    In the light of the above discussion we deliver the following:

ORDER

The complaint is dismissed. The parties shall bear their costs. The Opposite Party No.1 and 2 are hereby directed to discontinue the Unfair Trade Practice discussed in this case and not to repeat them.

(Page No.1 to 25 dictated to the Sheristedar typed by her, revised and pronounced in the open Forum on this the 27^th day of June, 2016).

    MEMBER                                                                      PRESIDENT                 

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Satish Kini (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 –    Tax Invoice dated 07.10.2008.

Ex.C-2 –    Receipt dated 07.10.2008.

Ex.C-3 –   Proforma Invoice dated 07.10.2008.

Ex.C-4 –   Sale Certificate dated 07.10.2008

Ex.C-5 –    Temporary RC dated 07.10.2008.

Ex.C-6 -   Application for registration   

Ex.C-7 -   Letter of Vijaya Bank dated 10.10.2008.

Ex.C-8 -   Receipt dated 10.10.2008.

Ex.C-9 -   Receipt Voucher dated 11.10.2008.

Ex.C-10-   Invoice dated 23.10.2008.

Ex.C-11-   Job card dated 23.10.2008.

Ex.C-12-   Letter of complainant dated NIL

Ex.C-13-   Invoice dated 23.10.2008.

Ex.C-14-   Letter of complainant dated NIL

Ex.C-15-   Letter of complainant dated NIL

Ex.C-16-   Letter of Complainant dated 12.02.009.

Ex.C-17-   Tax Invoice dated 24.02.2009.

Ex.C-18-    Letter of complainant dated 24.02.2009.

Ex.C-19-   Job Card  by Opposite Party No.3 dated 16.10.2009.

Ex.C-20-   Job card by Opposite Party No.3 dated 13.05.2009.

Ex.C-21-   Job slip of Opposite Party No.3 dated 13.05.2009.

Ex.C-22-   Tax Invoice

Witnesses examined on behalf of the Opposite Parties:

RW-1 :     Kirankumar Angadi, Asst. General Manager (Service) of

               Opposite Party No.3

Documents produced on behalf of the Opposite Parties:      

                                    - NIL -

Dated:27.06.2016                                                                MEMBER