DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 205/2022

Date of Institution: 21.04.2022

Judgment Reserved on: 05.01.2024

Judgment Passed on: 05.01.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

Judgment By: Ms. Rashmi Bansal (Member)

JUDGMENT

By present judgment the commission is disposing off the complaint of the complainant against OPs for deficiency in services on their part in supplying him defective scooty.

1. The relevant facts of the case are that the complainant had purchased a scooty for her son, so as to he can attend his coaching classes, on 19.09.2021 from OP3, for a consideration of Rs. 99,500/. At the time of first service with OP2, on 08.12.2021, the complainant noticed that chassis number is different in delivery receipt, service book and registration card, which was immediately rectified by OP2 on objection raised by complainant. The second service was done on 31.01.2022, after a run of 902 km, and some wear tear of body parts of the scooty were brought into the knowledge of OP2 who has assured that the problem shall be referred to its OEM but no reply has been received till 04.04.2022, the day on which thescooty was left with the OP2. Complainant further submits that there was the starting problem with the said scooty from the date of purchase, and despite numerous reminders during each service, repeated visits and telephonic conversation nothing was done and even after third services of the scooty, the defects were not cured, which act of the OP amounts to deficiency in service and unfair trade practice on the part of OP. Complainant submits that the job cards were never issued to her, which is the unfair trade practice of the OP2. On 27.03.2022 the said scooty was made to inspect by the team of experts from OP2 and upon opening the body of the scooty it was informed by workshop manager of OP2 that there is an issue with the frame/ chassis and the same shall be decided by OEM, Chennai only. OP2 again, on 29.03.2022, called the scooty and thereafter, third service slot was given for 31.03.2022. All the services were done upon payment of Rs.779/-, Rs. 779/-, Rs. 355/ respectively.
2. Complainant submits that OP2 again has called the complainant for re-inspection of the scooty with their inspection technical team from Chennai on 04.04.20224 for which her son had to take leave from his studies and tutorials. The body of the said scooty was reopened during reinspection and it was re-confirmed over the conference call in the presence of OP’s person that it was a pre-existed major frame/chassis defect of the said scooty. Complainant further submits that OP2 and inspecting team also agreed over conference call, to replace the said scooty with a new one, but the acknowledgement dated 04.04.22 provided by OP2 was in complete contradiction of the above stated facts, which was immediately opposed by the complainant.
3. This is further submission of complainant that OP2 and technical team from Chennai started to attend the cause of defect by hammering the chassis of another similar scooty, which was first in line of queue for inspection with same issues as of complainant, which act was objected to by the complainant’s son and he immediately brought to the notice of entire team and it was specifically conveyed to OP2 not to apply the same logics of hammering on the complainant’s scooty, being an inappropriate, unprofessional approach for rectification of the problem.
4. It is further stated by the complainant that OP2 and OP3, in collusion, with each other, have started modification and repair, on their own, without prior approval of the complainant, and also without providing details as to what is to be done with the scooty, by concealing the facts of manufacturing defect of frame/chassis of the scooty, which shows fraudulent and wrong factors in violation of guidelines, guarantees and warrantees in automobile sector. A notice dated 08.04.2022 was sent by the complainant to OPs for refund the complete cost of the said scooty along with losses suffered by the complainant, in response of which, OP2, vide WhatsApp message dated 12.04.2022has offered refund of the scooty but forced the complainant for signing some  documents, on their own formats of customer satisfaction letter and settlement letter, & Form 29 & 30 without filing name of transferee for transfer of scooty, citing that they are mandatory documents, but complainant found them contradictory in nature and therefore she did not sign. Instead, the complainant has prepared one document detailing all the events happened till date, which was not acceptable to OP2. Complainant submits that OP2, was willing to purchase the ownership of this scooty on his letterhead despite being second owner after refunds and further wanted the complainant to sign blank papers of transfer till next buyer is made available to OP2, which was grossly against the law of the land and therefore the complainant did not sign the documents.
5. A final demand notice dated 14.04.2022 was sent by the complainant to OP2 for closing the issue amicably, which remained unanswered and therefore complainant was forced to file the present complaint with prayer for refund of the cost of the scooty amounting to Rs.99,500/-, registration cost of Rs. 7222/-, insurance cost of Rs. 5457/-, ceramic/PFF cost of Rs. 21,800/- and paid service cost of Rs. 1913/- along with cost of petrol left in a Scooty of Rs. 450/-,cost of daily commutation amounting to Rs. 850/-  per day along with interest @ 12% and Litigation and travelling charge of Rs.20,000/- and compensation for ongoing harassment and mental agony as Rs. 5,00,000/-. In addition to this, complainant has also prayed for an unconditional apology from the OPs and direction to the OEM, TVS motor Company Ltd to recall and surrender all defective scooters manufactured before 19.09.2021 which are highly prone to the accidents, with pre-existing manufacturing defect/faulty chases to protect the unaware owner’s life who all fall in the category of complainant.
6. Notices were issued to OP1, OP2 and OP3, but none of them filed their reply despite service and therefore, the opportunity to file reply of OP1 and OP3 was closed on 19.09.2022 and OP2 was proceeded ex parte vide order dated 25.07.2023.
7. Complainant has filed her ex-parte evidence and in support of her case has filed the invoice dated 19.09.2021, Ex. P/1; documents showing different chassis number, Ex. P/2; bill of three services, Ex. P/3; video clip of starting problem dated 04.04.2022, Ex. P/4; audio recording dated 04.04.2022, Ex. P/5; pen-drive of audio recording, Ex. P/6; acknowledgement dated 04.04.2022 of OP2, Ex. P/7; and acknowledgement dated 04.04.2022 of complainant, Ex. P/8;  photographs of scooty of some other person at the workshop, Ex. P/9; repair documents, Ex. P/10, Document pertaining to technical guidelines, Ex. P/11; notice dated 08.04.22,Ex. C/12; video clipping Ex. P/13; copy of WhatsApp chat dated 12.04.2022 and format, Ex. P/13 and 14; format from the complainant, Ex. P/15; notice dated 14.04.2022, Ex. P/16.
8. The commission has gone through the documents filed by the complainant and heard the arguments.
9. The purchase of the scooty and the other stated facts are proved by the complainant by filing the evidence by way of affidavit and are shown as exhibit as stated above. Since OP1 and OP3 have failed to file their reply and their opportunity to file reply was closed and OP2 was proceeded ex parte, hence, the allegations put by the complainant deemed to be admitted in the absence of written statement of the OPs.
10. The commission has thoroughly read the whatsapp chat dated 12.04.2022, transcript of which is available on record, Ex. P/14, shows that one Mr Saurabh Yadav, Business head, ‘My TVS’, has stated that “as discussed with co. regarding your refund, company is ready to give you the refund against your vehicle, which includes, ex–showroom Rs. 89,211/, RTO Rs. 8017, Insurance Rs. 5230/- and Std Acc. Rs. 950/-  total amounting to 1,03,408, and that after doing some paper formalities, we will initiate refund.” and has mentioned certain documents to be signed by the complainant. Further he has agreed to refund Rs.1,06,500 stating “as per vehicle price we will add additional Rs.3000/- in this and will make you a refund of Rs.1,06,500/- as a final price. if you agree on the same price then we will move forward to complete this deal.” to which the complainant responded “thanks, Agreed. Lets close on 1,06,500/- in next 24 hrs”. However, after receiving the formats of the documents to be signed by the complainant, the complainant did not agree to sign citing reason that they are contradictory of her case, to this, the said Mr Saurabh stated that “we will change the language if required in any of the documents.” The complainant has sent her own MOM to which he stated that “I am agree to your MOM also.” and again written “I am agree to your MOM and also agrees on making the changes in our specified formats” and further “we are ready with your cheque, your MOM and our documents to close this deal smoothly”, further claimed that customer satisfaction letter and settlement letter are mandatory documents for the company as the matter is being closed with mutual settlement. However, the complainant did not ready to that.
11. This commission, has gone through all the documents on record & after considering the above stated whatapp chat very carefully, has noted that the refund amount was mutually agreed to by both the parties, the only question remains to decide whether the demand by the OP for the Customer satisfaction letter and settlement letter is mandatory or arbitrary? From the whatsapp chat, it can be deduced that complainant was having no issue to sign the said documents till the time she found that the said documents was contrary to her case. However, this is also observed that OP was agreed to even the changes, that were made by the complainant. But then complainant did not proceed with OP and has filed the present case. Considering the facts and circumstance of the case, this appears that OP was not having any mandatory format for the customer satisfaction letter and settlement letter as he himself is ready and willing to execute the document as per terms and conditions of the complainant, which implies that even now OP can get the above stated documents executed in terms of the case of the complainant. Forcing the complainant to sign the document citing arbitrary terms and holding the refund of the amount on baseless ground amounts to unfair trade practice and deficiency in service on the part of the OP that has caused harassment and mental agony to the complainant for which OP is liable to compensate the complainant along with the refund for the vehicle in question. Therefore, this Commission directs OP to refund the agreed amount of Rs.1,06,500/- to the complainant along with a compensation of Rs. 10,000/- towards mental harassment and agony caused to the complainant including litigation cost and the complainant in turn shall sign the required filled-up mandatory documents, if required by OP, provided the said documents should be a valid legal tender and would be checked by the complainant. OP is further directed to not to get signed any blank document from complainant.
12. Further, the prayer of the complainant for refund of amount of Rs.450/- for the petrol left in scooty has already been addressed by the OP, the cost of commutation at the rate of Rs. 850/- per day are not being paid for the want of any evidence filed by the complainant. The prayer B and C of the complaint with respect to the apology from the OP and to issue direction to OP for withdrawing the defecting scooty from the market are also not being allowed as the communication and demand for signing the documents by the OP was part of his job, for which apology cannot be sought. Further, complainant failed to produce on record any evidence to the effect that all the scooty of the same batch as of the complainant are defective, therefore prayer C is also declined. The technical guidelines filed by the complainant is general in nature & not w.r.t. the scooty of the complainant, therefore same has no bearance on the merit of case.
13. The above stated amount be paid by the OPs to the complainant within 30 days from the date signing of the documents by complainant failing which the entire amount shall carry an interest at the rate of 12% per annum from the date of filing of the complaint, i.e. 21.04.2022 till its final realisation by the complainant.

The file be consigned to record room after providing the copy of the order to the parties of the complaint as per CPA rules.

Announced on 05.01.2024.