Complaint No: 529 of 2017.
Date of Institution: 09.10.2017.
Date of order:05.09.2023.
Mohinder Pal Son of Satish Chander, resident of Mohalla Dhakki, V.P.O Kalanaur, Tehsil and District Gurdaspur.
.....Complainant.
VERSUS
- TVS Motor Company Ltd. Registered Office at jai Laxmi Estate, 5th Floor, 8, Haddows Road, Chennai-600006, through its Authorized signatory. Helpline No. 044-28272233
Alternative Address:-
TVS Motor Company Ltd. P.B No. 4, Harita Hosur-635109,Tamilnadu, India.
- S.M Teja Auto Motors, near Indane Gas Agency, Gurdaspur Road, Kalanaur, through its Proprietor.
- United Insurance Company Ltd. Branch Office at Main Bazar, Kalanaur, Tehsil and District Gurdaspur, through its Branch Manager.
.....Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Ankush Sharma, Adv.
For the Opposite parties no.1 & 2: Sh.K.M.Singh, Adv.
For the Opposite party no.3: Sh.A.K.Joshi, Adv.
Quorum: Sh.Lalit Mohan Dogra President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Mohinder Pal, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against TVS Motor Co. Ltd. and others (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that on 17.04.2017, the complainant had purchased a TVS Scooty bearing Registration No. PB-06-AM-5035, Chassis No.MD626EG46H1C73443, Engine No. EG4CH1X14935 from the opposite party No.2 and paid the entire amount of Rs.47,900/- to the opposite party No.2. The said TVS Scooty was insured from opposite party No.3 on 19.05.2017 valid up to 18.05.2018. It is alleged that to the utter surprise, it was found after one mouth of purchase of TVS Scooty, that its Engine got stopped while turning. It is further pleaded that the complainant on 20.05.2017 approached to the opposite party No.2 and told about the manufacturing defect in the TVS Scooty and also requested them to remove it, but the opposite party No. 2 linger on the matter with one pretext or the other. It is further alleged that the complainant took the defective TVS Scooty without giving any satisfactory reason from opposite party no.2 with him and starting plying it, thereafter on 30.08. 2017 the complainant went to his shop at about 07:00 P.M on his TVS Scooty and then the Engine of Scooty get blasted after start of Engine. It is further pleaded that then the complainant took his Scooty to opposite party No.2 and told them about the blast of Engine when it was started and then the opposite party no.2 told the complainant that they will check the Scooty from their Technical Engineer and told the complainant soon about the same. It is further alleged that till date no report of Technical Engineer has been received or given by the opposite party to the complainant and nor TVS Scooty has been handed over to the complainant. It is further pleaded that the opposite party No.2 is alleging that the said TVS Scooty has met with at accident. It is further alleged that the complainant had approached to the opposite party No.2 many times and requested them to either replace the Scooty with new one or to remove the Manufacturing defect from it, but the opposite party No.2 are not paying any heed to the requests of the complainant, rather saying that the complainant cannot do anything against them as they are highly influential persons. It is further pleaded that the complainant also published the news item in this regard in the Newspaper Punjabi Jagran on dated 21.09.2017 and due to this illegal act and conduct of the opposite parties, the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience, as such there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the TVS Scooty of the complainant with new one and they further directed to pay a sum of Rs.50,000/- to the complainant on account of mental agony and physical harassment given to the complainant. The opposite parties be further burdened with Rs.10,000/- as litigation expenses in the interest of justice.
3. Upon notice, opposite parties No.1 appeared through counsel and contested the complaint by filing their written reply, stating therein that the Opposite Party No.1 is a manufacturer of powered two wheelers arid and other automotive products. The two wheelers manufactured by the Opposite Party No.1 are sold "on principal-to-principal basis" to its various dealers across the country. The Opposite Party No.1 furnishes "owners user manual" along with the vehicle, in which, the user of the motor vehicle is guided through various information’s such as features in the vehicle model, riding tips, maintenance instructions, warranty and services, technical specification of the vehicle, general information, etc. As per warranty conditions, the complainant is not entitled for replacement of the vehicle or refund of purchase price. As per the terms of the warranty, “the Warranty shall not be applicable for the parts suffering damage or resultant damage by accident.” Therefore, the Complainant is not entitled for any replacement under warranty. It is pleaded that the Opposite Party No.1 came to understand from the Opposite Party No.2 that the Complainant had purchased a "TVS Jupiter Vehicle" on 17.04.2017 from the Opposite Party No. 2 and had taken the delivery of the same on the very same day. It is further pleaded that on 30.08.2017, when the vehicle had completed 559 Km of run, the Complainant brought the said vehicle for the first time to the Service Centre of the Opposite Party No.2 complaining that the Oil chamber of the vehicle blasted automatically. However, when the workshop mechanics of the Service Centre of the Opposite Party No.2 examined the vehicle, it was found that the vehicle had met with an accident, due to which the oil chamber got hit from the bottom. It is further pleaded that impact of such a collision was that the oil chamber cracked and the entire oil drained out from the vehicle. It is further pleaded that there were no burnt black marks or sooth present on the surface of the oil chamber and also there were scratches on the Bottom Panel of the vehicle which were prima facie visible, but when the technicians of the Service Centre of the Opposite Party No.2 tried to explain to the Complainant that the oil chamber needs replacement and he would be provided assistance in getting it replaced under insurance, the Complainant paid no heed to the explanation and instead of cooperating to get the oil chamber replaced, started demanded for a new vehicle and left the vehicle at the of the Service Centre of the Opposite Party No.2 with Job card no.1134. It is further pleaded that the Opposite Party No.1 submits that there is no manufacturing defect in the vehicle and the oil chamber is made of sturdy and tough material and cannot break automatically. It is further pleaded that it is evident from the scratches on the bottom panel and the dent in the oil chamber that the vehicle has met with an accident. It was submitted that as per the terms of warranty mentioned in the owner manual, "the warranty shall not apply to the parts suffering damage or resultant damage by accident" Despite this, though not obligated and solely to satisfy the Complainant, the Opposite Party No.2 offered to replace the oil chamber free of cost under warranty. It is further pleaded that still the Complainant had refused to take the vehicle and remained adamant that the vehicle be replaced with a new one. It is further pleaded that the subsequent attempts by the Opposite Party No.2 to seek the complainant to collect the vehicle went unsuccessful. The Opposite Party No.2 even sent a letter dated 19.09.2017 to the Complainant requesting for the same. It is further pleaded that from 30.08.2017 to till the date, the Vehicle is still with the Opposite Party No.2 and Inspite of repeated attempts by the Opposite Party No.2 the Complainant refused co-operating for amicable resolution of the matter and filed the present Complaint with the Hon’ble Commission with a fabricated and false version of the actual events stating that the Engine of the vehicle blasted automatically, when in reality, not the engine, but the oil chamber of the vehicle got cracked because the said vehicle met with an accident. It is further pleaded that the engine of the vehicle is intact and is in perfect condition. It is further pleaded that in the present complaint, there is no role as far as the Opposite Party No.1 is concerned in this case and the role of the Opposite Party No.1 arise only in case of manufacturing defect, in which case only defective components shall be replaced free of cost during the warranty period. It is further pleaded that the Opposite Party No.1 further submits that the vehicle can be subject to verification by an expert for any manufacturing defect. It is further pleaded that in the above matter there is no evidence on record furnished by the Complainant to establish that the oil chamber got blasted due to any manufacturing defect. It is further pleaded that it is a settled law to establish allegation of manufacturing defect, it is necessary to get the goods examined by an independent expert. It is further pleaded that Opposite Party No.1 wishes to rely on the case of National Commission in Chandeshwar Kumar vs. Tata Engineering Loco Motive Co. and Another 2006 (3) CPR 402 wherein the National Commission has upheld the necessity of expert evidence at accordance with 13(b) of Consumer Protection Act. It is further pleaded that the Complainant ought to have escalated the fact to this Hon'ble Commission that it is not the Opposite Party No.2 who is not handing over the vehicle to the Complainant but it is the Complainant who has been refusing to get the oil chamber replaced and collect back the vehicle and instead of taking services as per warranty conditions, the complaint approached this Hon'ble District Commission with the complaint and made this claim in order to work out illegal advantage. It is further pleaded that the reasons for such actions are best known only to the Complainant and therefore, the claim of the Complainant is unsustainable in law and on facts and hence the complaint is liable to be dismissed.
4. Upon notice, opposite parties No.2 appeared through counsel and contested the complaint by filing their written reply, stating therein that it is denied that after one month the engine of TVS Scooty got stopped and the complainant on 20.05.2017 approach the opposite party no.2 and told about the manufacturing defect in the TVS Scooty. It is further pleaded that complainant never came on 20.05.2017 to the opposite party no.2 as pleaded by him. It is pleaded that on 30.08.2017 at about 11:00 AM the complainant approached the opposite party no.2 workshop along with the Scooty of which the oil chamber was broken. It is further pleaded that he left the Scooty with damaged oil chamber and said same has been damaged due to accident and he forced the opposite party no.2 to replace the old Scooty with a new one. It is further pleaded that opposite party no.2 never asked the complainant for getting the report of technical engineer qua the Scooty and the complainant himself disclosed the fact of damage of oil chamber due to accident. It is further pleaded that as there is no manufacturing defect in the Scooty so the question of asking the opposite party no.2 to replace the same with a new one does not arise at all. However the Scooty is well-functioning and the same can easily be started and there is no defect in plying the Scooty. It is further pleaded that complainant is not taking the delivery of the Scooty from the opposite party no.2 workshop without any sufficient cause or excuse. It is further pleaded that opposite party no.2 advised the complainant through speed post letter dated 19.09.2017 which is refused by the complainant to get repaired the damage chamber of the Scooty through insurance company by lodging complaint. It is further pleaded that on 26.10.2017 the opposite party no.2 moved a complaint to SHO Police Station Kalanaur that the complainant is not taking aback the delivery of his Scooty from the workshop and the Scooty is still lying in the workshop of the opposite party no.2 and the complainant refuse to take the same back there from with malafide intention.
On merits, the opposite parties No.1 and 2 denied all the averments of the complaint and there is no deficiency in service on the part of opposite parties No.1 and 2. In the end, the opposite parties prayed for dismissal of complaint with costs in the interest of justice.
5. Upon notice, opposite party No.3 appeared through counsel and contested the complaint by filing their written reply, the opposite party no. 3 raised preliminary objections that the complaint filed by the complainant against the opposite party no.3 is hopelessly PRE-MATURE. The complainant neither lodged his claim with the opposite party no.3 insurance company, nor gave any information regarding alleged accident and alleged loss to his vehicle to the opposite party no.3 i.e. insurance company. It is further pleaded that opposite party no.3 i.e. insurance company never appointed any Surveyor to assess the loss to the vehicle in question and the complainant never completed any formalities under the terms and conditions of the policy by providing all the required documents for lodging the claim, then the question of payment of claim does not arise, as such, due to non-lodging the claim along with the required documents by the complainant with the opposite party no.3 i.e. insurance company, the insurance company is not in a position to settle the claim under the terms and conditions of the policy. It is further pleaded that the present claim of the complainant is not maintainable and is liable to be dismissed on this score only. It is pleaded that no accident ever took place with the vehicle in question and there was some manufacturing defect in the Scooty, which was purchased from the Opposite party no.2. It is further pleaded that it is denied for want of knowledge regarding the complaint of the complainant with the opposite party no.2 regarding the manufacturing defect of the said Scooty. It is further pleaded that the complainant has filed the present complaint in connivance and conspiracy of the opposite parties no. 1 and 2 in order to get the false claim and to grab the money of the opposite party no.3 i.e. insurance company which is public money.
On merits, the opposite party No.3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party no.3. In the end, the opposite party prayed for dismissal of complaint with costs.
6. Learned counsel for the complainant has tendered into evidence affidavit of Mohinder Pal, (Complainant) as Ex.CW-1 along with other documents as Ex.C-1 to Ex.C-4.
7. Learned counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Alwan Masih as Ex.OP-1,2/1 along with other documents and photographs as Ex.OP-1,2/2 to Ex.OP-1,2/9.
8. Opposite party No.3 failed to produce their evidence and the same was closed by order vide order dated 01.06.2018.
9. Written arguments filed by the opposite party no.3 but not filed by the complainant and opposite parties no.1 and 2.
10. Counsel for the complainant has argued that the TVS Scooty purchased by the complainant for having defects from the date of purchase which were brought in the notice of opposite party No.2. It is further argued that on 30.08.2017 just after three months of the purchase engine of the scooty got brasted and the matter was reported to the opposite party No.2. and plea of the opposite party No.2 is that the engine has not blasted but it has met with an accident and the scooty is lying with the opposite party No.2 in defective condition from 30.08.2017 till date and the same has not been replaced by the opposite parties No.1 and 2 which amounts to deficiency in service.
11. Counsel for the opposite party No.1 has argued that there is no manufacturing defect in the scooty as alleged by the complainant. Moreover, the scooty has not been examined by any expert to prove the manufacturing defect and as such complaint is liable to be dismissed. However, efforts have been made by them to repair the scooty, but the complainant refused.
12. On the other hand counsel for the opposite party No.2 has argued that the engine of the scooty never brasted rather the damage was accidental and as such complainant was advised to lodge claim with the insurance company but the complainant has left the scooty in the premises of opposite party No.2. A written letter Ex.OP-2/3 was sent to the complainant to collect his scooty from them and has prayed for dismissal of the complaint.
13. Counsel for the opposite party No.3 has also argued that complaint is premature as no claim was ever lodged with the opposite party No.3.
14. We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant has purchased a TVS Scooty from opposite party No.2 dealer manufactured by opposite party No.1. It is further admitted fact that just after three months of purchase there was some defect in the engine which was reported to the opposite party No.2. The only disputed question for adjudication before this Commission is whether the defect to the chamber of scooty was accidental or was manufacturing defect.
15. To prove his case, complainant has placed on record temporary R.C. Ex.C1, copy of R.C. Ex.C2, copy of insurance policy Ex.C3, copy of new paper cutting Ex.C4 whereas on the other hand counsel for the opposite parties no.1 and 2 have placed on record copy of job card Ex.OP-1,2/2 and letter Ex.OP-1,2/3. Perusal of job card Ex.OP-1,2/2 shows that in the column of service request at the time of receipt it shows that oil chamber is mentioned as broken and in the column of observation due to accident chamber broken has been mentioned. However, at the column of signatures of the customer, the same is blank and remark refused to sign has been mentioned. Meaning thereby that there is no report of authorized qualified automobile engineer of opposite parties No.1 and 2 to prove this fact that the chamber of the scooty had got damaged in the accident and it had infact not blasted as claimed by the complainant.
16. Perusal of record shows that the scooty lying with the opposite party No.2 since 30.08.2017 and the present complaint is being disposed of on 05.09.2023 which shows that opposite parties no.1 and 2 have taken the matter very causally and have not made any efforts to repair the scooty in fact but the assurance to repair the chamber free of cost is in the papers. This Commission is of the view that if intention of opposite party No.1 and 2 was bonafide in that case opposite party No.1 and 2 should have repaired the scooty of the complainant free of costs and handed over the same to the complainant, but no such effort was made. As such this Commission is of the view that act of the opposite parties for having failed to repair the scooty of the complainant which was with in warranty amount to deficiency in service.
17. As far as the plea of the complainant of the replacement of the old scooty with a new one is concerned. Complainant has not made any efforts to prove the manufacturing defect by getting the vehicle examined from any automobile engineer. As such replacement of scooty at this stage could not be ordered. Moreover, in view of the evidence on record and facts as narrated above complainant has fully proved the deficiency in service on the part of opposite parties No.1 and 2.
18. Accordingly, complaint is partly allowed and opposite parties No.1 and 2 are directed to repair the scooty of the complainant free of costs within 30 days from the receipt of copy of this order. It is further mentioned that since the scooty is lying unused since 30.08.2017 and the same shall be brought in running condition after removing each and every defect which may have occurred due to non use of the scooty within 30 days of the receipt of copy of this order failing which opposite parties shall be laible to replace the old scooty with a new one. This Commission is further of the view that opposite parties No.1 and 2 have adopted very causal approach in the matter on account of which complainant has definitely suffered mental tension and agony and was deprived of use of his vehicle for such a long period. As such opposite party No.1 and 2 are further directed to pay compensation/damages to the tune of Rs.10,000/-and cost of litigation Rs.5,000/- to the complainant within given time i.e. 30 days from the date of receipt of copy of this order.
19. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
20. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 05, 2023 Member
*YP*
