Kerala

Thiruvananthapuram

CC/12/91

Sasirekha J.R - Complainant(s)

Versus

TVS and 2 others - Opp.Party(s)

-

20 Jan 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACADU, THIRUVANANTHAPURAM

 

PRESENT

                                          SRI.P.V.JAYARAJAN       : PRESIDENT

             SMT.PREETHA.G.NAIR       : MEMBER

                                        SRI.VIJU.V.R.                    : MEMBER

CC.NO.91/2012 (Filed on : 16.03.2012)

ORDER DATED : 20.01.2022

COMPLAINANT

Sasirekha.J.R

TC.19/2282, VPS 100, Vattavila,

Thirumala.P.O,

Thiruvananthapuram

         

          (By Adv.R.Balakrishnan Nair)

                                                                   VS

OPPOSITE PARTIES

1. T.V.Sundaram Iyengar & Sons Ltd,

(Distributor of Mahindra Vehicles)

Neeramankara, Kaimanom.P.O

Thiruvananthapuram – 695040

 

2. M/s.Mahindra & Mahindra Ltd,

(Manufacturer of Verito Vehicles)

Automative Distributor Pvt Ltd,

Gate Way Buildings, Appollo Mandir,

Mumbai – 400 039

 

3. The Managing Director,

T.V.Sundaram Iyengar & Sons Ltd,

Madurai, Tamilnadu.

                   (OPS 1 & 3 Adv.S.Laila)

                    (OP2 by Adv.Sunil.C.G)

ORDER

SRI.VIJU. V.R.  MEMBER

1.       The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986. The facts of the case is that the complainant for her family and for her own business purpose thought of buying a brand new car as her old car was not serving the purpose. The complainant visited the showroom of first opposite party and due to the compeltion from the executive of the first opposite party, she decided to book a new Verito D4 Black colour car manufactured by second opposite party. The complainant on 29-11-2011 booked the vehicle by paying an amount of Rs 1000/- . As per the booking order, they promised to deliver the vehicle on 03.12.2011. On 05.12.2011, the first opposite party delivered the vehicle to the complainant. The cost of the vehicle was Rs.6,02,300/- plus registration charge Rs.3,000/- and insurance charge Rs.15,206/- thus totally about Rs.6,20,506/-. The first opposite party has arranged their own finance associate for complainant with M/s.Mahindra Finance. She availed the finance from them. Thus the entire payment was paid to the first opposite party. The first opposite party advised to effect Teflon Coating and sensor fitting to the car for which an amount of Rs.4,500/- each, thus a total of Rs.9000/- was appropriated by the first opposite party. The complainant had to fix tinted glare paper to the vehicle spending an extra amount of Rs.5000/- with an outside agency. She also fixed a stereo system in the vehicle by spending her own money. The said vehicle was registered with RTO, Thiruvananthapuram and its Reg.No. is KL-01 BD 7234. The registration was effected at the instance of the first opposite party. After the registration of the vehicle, the first opposite party delivered the same to the complainant on 05.12.2011 with all the connected records pertaining to the said vehicle. On verifying the records conveniently at the residence of the complainant shockingly and astonishingly she found that the above said vehicle supplied to the complainant was not a new one but the same was already supplied to another person at Alleppey through another branch of the first opposite party on 02.09.2011. The complainant was surprised to see that the entries therein are manipulated, mutilated and tampered with white ink to correct the entries so as to cause to believe that the vehicle delivered to the complainant is a new one. The service coupons and relevant pages are seen tampered and torn off. The car supplied to the complainant is a second hand car. On further verification, it could be seen that the vehicle was used for more than 400 kms at the time of delivery to the complainant.  The performance of the vehicle is also seen very poor. The vehicle supplied to the complainant used to stop at traffic points and other places. It caused a dead stop causing innumerable difficulties to the complainant during driving. On 14.12.2011, when the complainant had to take her children to school for their examination, the above said car failed to start due to the failure of the battery. The complainant had to call the first opposite party to launch a complaint of failure of battery. Immediately the men of the first opposite party came with a new battery and changed the same in the vehicle. The complainant is in possession of the serial number of the previous battery kept in the car. Complainant verified the inside of the vehicle meticulously and found that the same was soiled, especially seat belt, driver seat etc. From the failure of the battery and soil inside the car, indicate that the same was used by somebody. The act of the opposite parties 1 to 3 amounts to unfair trade practice and deficiency in service, hence this complaint.

       2. The Opposite parties 1 and 3 entered appearance and filed version.  1^st & 3^rd opposite parties has averred that the opposite parties are the dealers of the car Verito D4 and that the complainant came to the opposite party’s show room enquiring about the Verito D4. The allegations that the executives of these opposite parties cajoled, persuaded and compelled the complainant to purchase Verito D4 car is absolutely false. On knowing about the quality of the vehicle from those who use the same type of vehicle the complainant approached the opposite parties for purchasing the Verito D4. The complainant had prevailed upon the opposite parties that the vehicle be delivered immediately soon after the initial payment was deposited. She also created a scene at the showroom on 03.12.2011 where she wanted her vehicle to be delivered before the full payment of the value of the vehicle. But as per the policy conditions of the opposite parties they would deliver the vehicle only after the full payment is made. The full payment was made by the complainant only on 05.12.2011 and on the same day the vehicle was delivered to the complainant and there was no delay in delivery of the car. M/s.Mahindra Finance has no connection with these opposite parties and the finance was arranged with M/s.Mahindra Finance by the complainant and her husband. All the  additional fittings, accessories etc were done by the opposite parties as per the order given duly signed by the complainant as per her choice and the opposite parties never   advised or persuaded her to ask for the additional fittings.  The allegation that the vehicle is a second hand one and it was sold to another person at Allepey and that the entries in service records were manipulated, mutilated and tempered with white ink to correct entries so as to  make believe that a new vehicle is delivered is false. As dealers for Mahindra & Mahindra Ltd, the opposite parties cannot sell any second hand car.  The car was specially allocated to the complainant after she was adamant that she wanted the vehicle at the earliest. To the heed to the complainant’s earnest request and personal plea and as a goodwill gesture the opposite parties spoke to one of the customers at Alleppey who was due to get his Verito D4 Black, he was kind enough to understand and agreed to take another Verito D4 white and his particular vehicle was re-allotted and sent from Alleppey to Thiruvananthapuram for the complainant. Before selling the car to the complainant the actual fact was made known to her and her husband and both of them agreed for taking the said car. The opposite parties had no such intention of defrauding the complainant.  The service book coupons are numbered and are unique to each car produced at the plant, further all the service coupons in the service book were intact.  The date of manufacture of the car is also clear. The opposite parties just made certified alterations in the entry in the service records and delivered to the vehicle to the complainant. The vehicle was run about 400 kilometres. It is not because the vehicle is second hand but because all the vehicle are coming from Mumbai to Alangad at Aluva in their carriage and from there to all the dealers by road. The distance of 400 kilometers is the distance run by the vehicle from Aluva yard to the opposite party’s workshop at Maradu Cochin and from there to Alleppey and to Thrivuananthapuram The failure of the battery has happened because of the complainant’s husband kept the head light of the vehicle on when the vehicle was switched off and hence the battery was completely discharged. As it was a new vehicle instead of charging the battery, the opposite parties replaced the same. A notice dated 04.01.2012 was received by the opposite parties and for the same clear and appropriate reply with valid explanation was given. There is no deficiency in service or unfair trade practice from the side of opposite parties 1 and 3. The opposite parties 1 &3 are denying the allegations of the complainant that the vehicle is having manufacturing defect, hence complaint may be dismissed with compensatory costs to the opposite parties 1 & 3.

                3.          Second opposite party has took the contention that the first opposite party places bulk orders for vehicles and the second opposite party supplies vehicles in large numbers. The second opposite party does not know about the ultimate buyer of the vehicle at the time of purchase. The second opposite party never had any transactions with the complainant and therefore there is no privity of contract between the complainant and the second opposite party. The first opposite party is only a dealer of the second opposite party and not an agent. The first opposite party is a different legal entity. Accessories will be fitted by the dealer as per the requirement of the purchaser and the second opposite party was not involved in any such transactions. It is learnt from first opposite party that a brand new car was delivered to the complainant. The second opposite party was not involved in the sale of the vehicle by the first opposite party, which is an independent contract between them. It is learnt from the first opposite party that the subject vehicle was delivered by them to the complainant on 05.12.2011 with the relevant records, in good condition. The vehicle was delivered in good working condition without any defect. There is no basis for the apprehension of the complainant that the vehicle was in use of some body. The vehicle delivered to the complainant is a new one and the said vehicle was not sold to anyone else earlier. It is pertinent to note that engine number and chassis number are recorded by the Motor Vehicles Department at the time of registration and a vehicle once sold cannot be sold again. The second opposite party being a  manufacturer is not directly involved in the sale transaction. The second opposite party is selling every vehicle to the dealer with specified warranty. Mahindra Verito Vehicles are having a standard warranty and the warranty policy is in the Owner’s Manual. Mahindra Verito vehicle is having a warranty of two years or 50000 kms whichever is earlier. The complainant is well aware of the warranty policy. The present complaint is filled suppressing the terms of warranty. The complainant is not entitled to get any of the reliefs as sought in the complaint.  There is no deficiency in service or unfair trade practice from the side of second opposite party. Hence complaint may be dismissed with compensatory costs to the 2^nd opposite party.

Issues to be ascertained

1. Whether there is manufacturing defects or deficiency in service from the side of opposite parties 1 to 3?
2.  Whether the complainant is entitled to get the reliefs?

Issues (i) and (ii)

4.       Both these issues are considered together for the sake of convenience. The authorised representative of the complainant has filed affidavit in-lieu of chief examination and was examined as PW1 and has produced 4 documents which were marked as Exts. P1 to P4.  The representative of opposite parties 1 & 3 has filed affidavit in-lieu of chief examination and was examined as DW1 and has produced 3 documents which were marked as Exts. D1 to D3.  OP2 has also filed affidavit in-lieu of chief examination & was examined as DW2 & has produced one document which was marked as Ext D4. All the parties filed argument notes. The main allegation raised by the complainant is that the entries in the service book of the vehicle was manipulated, mutilated & tampered. On going through Exts P1(a) (b), (d), (e) & (f) it can be seen that in the portion of customer details in Exts P1(a) & (b) the details of the complainant was written after erasing some other details. In Exts P1(d),(e) & (f) also the complainant’s name was written after erasing some other’s name. It is admitted by OP1 & 3 in their version that the vehicle was firstly allotted to some other person in Alleppy & due to complainant’s adamant stand that as she wanted the vehicle at the earliest the vehicle was re-allotted to the complainant. DW1 has also deposed during his cross-examination that Ext.P1 പ്രകാരം  ഇതിൽ  കാണുന്ന  വണ്ടി ആർക്കോ വിറ്റില്ലെ (Q) ഇത്  മറ്റൊരാൾ  allot ചെയ്തതായി  പറഞ്ഞിട്ടുണ്ട്‌. (A)  എന്ന്  allot ചെയ്‌തു (Q) Allepy Branch -  ൽ  പറഞ്ഞിട്ടുണ്ട് (02/09/2014)   ഇത്  ആലപ്പുഴയുള്ള  customer നു  allot ചെയ്‌തതായി  Ext.P1 ൽ  രേഖപ്പെടുത്തിയിട്ടുണ്ട്. വ്യക്തി ആര്  എന്ന് എനിക്കറിയില്ല ഇപ്പോഴും (A). He has further deposed that Ext.P1(d) ൽ correction  ഉണ്ട്. Ext.P1 (e)  യിലും  correction ഉണ്ട്. Ext P1(f) യിലും  correction ഉണ്ട്. Ext P1(g) യിലും  correction ഉണ്ട്.  പേരും  അഡ്രസ്സും  പരാതിക്കാരിക്ക് കൊടുത്ത വാഹനം  മറ്റാർക്കോ allot  ചെയ്ത് കൊടുത്തതാണ്  എന്നു  പറയുന്നു  (Q) ചെയ്തു  delivery  ചെയ്‌തില്ല.So it is clear that the vehicle was firstly allotted to some other person before the same was delivered to the complainant.

                 5.         Another allegation raised by the complainant is that at the time of delivery of the vehicle it has plied more than 400 Kms. It was admitted by opposite parties 1 & 3 that the 400 Kms is the distance run by the vehicle from Aluva yard to the 1^st & 3^rd opposite party’s workshop at Maradu & from there to Alleppy & to Trivandrum. During the cross examination of DW1 has deposed that  പരാതിക്കാരിക്ക്  delivery ചെയ്യുന്നതിന് മുൻപ്,  400 km മുകളിൽ ഓടിയിട്ടുണ്ട് (A)  വണ്ടി  ആലങ്ങാട്‌  - ആലപ്പുഴ  ആലപ്പുഴ  - തിരുവനന്തപുരം എന്ന രീതിയിൽ ഓടിയിട്ടുണ്ടാകും.  Invoice അടിച്ച ശേഷം  registration നു പോകും. ഈ സ്ഥലങ്ങളിൽ ഈ വാഹനം പോയി എന്ന് കാണിക്കാൻ എന്തെങ്കിലും രേഖയുണ്ടോ (Q) ഉണ്ട് .  Eventhough he has deposed that there are documents to prove the same, they have not produced any evidence to prove the same. So it is clear that the vehicle which was given to the complainant has plied 400kms at the time of delivery.

 6.      Even though the complainant has alleged that the seat belt & driver seat were soiled and also the failure of battery, they have not produced any evidence to prove the same. It is admitted by the complainant that the vehicle was handed over to the complainant after registration. So if the vehicle is already registered in the name of another person it cannot be possible to register in the name of the complainant. So the vehicle delivered to the complainant cannot be considered to be a second hand one. The anti glare paper, Teflon coating & Stereo system were installed as per the wish of the complainant and hence opposite parties 1 to 3 cannot be held liable for that thing.

    7.  But on going through the evidences put forth by the complainant it can be seen that the opposite parties 1 & 3 has allotted the vehicle to some other person before the same was delivered to the complainant, not only that the above said vehicle had run 400kms before it was delivered to the complainant, for which they have not given any evidence. These acts on the part of opposite parties 1 & 3 amounts to unfair trade practice. Already it is pointed out that the vehicle delivered to the complainant is not a second hand one hence the first relief in this case cannot be allowed. Since second opposite party has no transaction with the complainant they were exonerated.  

              8.  Hence the opposite parties 1 and 3 are jointly and severally liable to compensate the complainant as they have delivered a vehicle which was allotted to some other person and also a vehicle which has run 400 kms.

     In the result, the complaint is partly allowed. The opposite parties 1 and 3 are directed to pay jointly and severally an amount of Rs. 3,00,000(Rupees. Three lakhs only) as compensation for the mental agony suffered by the complainant and pay Rs.2500/-(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 filing the complaint i.e.from 16.3.2012.

                       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 Forum, this the 20^th day of January 2022.

                                                                                                                                                                           Sd/-

P.V.JAYARAJAN   : PRESIDENT

 

                                                                                                                                                                                   Sd/-

  PREETHA .G.NAIR: MEMBER

 

                                                                                                                                                                                          Sd/-         

VIJU.V.R     : MEMBER

 

 

 

 

Be/

 

 

APPENDIX

CC.NO.91/12

COMPLAINANT’S WITNESS

1.  

Exhibits for the Complainant

1.  
2. 1.  
   2.  

OPPOSITE PARTY’S WITNESS

1.  
2.  

Exhibits for the opposite party

1.  

          Ext.D2               - Advocate letter dated 07.02.2012

          Ext.D3                  - Postal Receipt

          Ext.D4        - Copy of warranty coverage

 

COURT EXHIBITS

1.  

 

 

                                                                                             Sd/-

                                                                                      PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DISTRICT CONSUMER

DISPUTES REDRESSAL

COMMISSION,

VAZHUTHACADU,

THIRUVANANTHAPURAM

 

 

CC.NO.91/2012

 

ORDER DATED : 20.01.2022