Date of Filing: 18.06.2013 Date of Final Order: 28.10.2014
The simple version of this complainant that enumerated in the complaint is that the complainant Sri Ashok Kumar Shah intended to purchase a luxury car i.e. Tata Safari Dicor (EX) from the O.P. No.1 i.e. UTSAV MOTORS Pvt. Ltd., Cooch Behar but because of paucity of fund the complainant approached to the Proforma O.P. No.3 i.e. the Manager, HDFC Bank, Jaigaon Branch through their local representative for financial assistance. After completion of all formalities the Proforma O.P. No.3 was agree to disburse the loan amount of Rs.9,45,554/- to the complainant for purchasing the said vehicle. On 25-11-2011 the O.P. No.1 i.e. UTSAV MOTORS Pvt. Ltd., Cooch Behar delivered the said car i.e. Tata Safari Dicor (EX) under Chassis No. MAT403725BNK13189, Engine No.2.2 LDICOR09KYYJ21377, Year of manufacture 2011 with this assurance that they will render proper service towards the complainant and the said vehicle was duly registered bearing No.WB-70/B-9448, authenticated to the proforma O.P. No.3 i.e. the Manager, HDFC Bank and subject to hypothecation in favour of HDFC Bank.
15 days after purchasing of the said car the complainant realized emission of sound from the engine and further realized that its pick up was not up to the mark and oil pressure was not at satisfactory level. Engine also became too hot running after few kilometers. Then the complainant brought his car to the showroom of O.P. No.1 and narrated all the problems which had been faced by the complainant to its proprietor who assured that all the problems would clear after running of few kilometers. On 13-12-2011 the complainant brought his car to the showroom for first servicing but the problems were still in existence and sound of engine increased along with other troubles. Thereafter the complainant took his car to the showroom on several times i.e. on 23-02-2012, 20-03-2012, 17-05-2012, 09-06-2012, 25-07-2012, 19-10-2012, 05-04-2013 & 24-04-2013 for its repair and also paid of Rs.70,214/- but after such repair the complainant again cropped up along with some other related problems, whereas, there was valid warranty period for two years from the date of purchase of the said car on 25-11-2011 to 25-11-2013 and the said defects were arisen within the warranty period, so the complainant is entitled to get this benefit. The defects which was given below:
- One tyre has a bubble look like taking air inside,
- The socker of the car repaired twice till date and presently did not work properly,
- Battery damaged and not functioning properly,
- Engine takes much oil and sounds loud,
- The mileage of the car is decreased,
- The interior of the car is damaged due to lick age of the body on top,
- A.C did not work properly,
- Window switch panel did not work properly,
- The body gets rusting in many places.
That finding no other alternative the complainant lodged two complains through Internet service at Pune Service Centre of Tata Motors i.e. O.P. No.2, whose complain No.(1) I-17292699082 dated 19-10-2012 & 06-04-2013 & (2) I-18955863985 dated 18-05-2013 for regarding the said defects or replace the said car but the complainant did not get any satisfactory response from the O.P. No.2. The complainant also made contact orally and over the telephone No.03582-258026, 222544 & 020-66133516, 66133564 to the O.P. Nos.1 & 2 i.e. the UTSAV MOTORS Pvt. Ltd., Cooch Behar and Service Centre of Tata Motors, Pune for narrating the matter with the requested to replace the defective car or solve the said defects but all efforts were in vain. It has been alleged by the complainant that due to such manufacturing and mechanical defects the complainant suffered huge loss for the above vehicle. Due to unethical activities of the O.Ps the complainant facing hindrance and suffered irreparable loss and the complainant did not ply the said vehicle properly. The complainant also suffered from mental pain and agony, pecuniary loss and unnecessary harassments due to act and conduct of the opposite party by adopting their unfair trade practice and deficiency in service. That due to such activities of the opposite party the complainant files this complaint before this Forum for redress of all disputes and further prays for relief(s) as enumerated in the prayer portion of the complaint.
Hence, the complainant filed the instant case No. DF-56/2013 with enclosed some Xerox copy of documents together with ten I.P.Os. of Rs. 50/- each i.e. Rs.500/- in total before this Forum for redress of the dispute and prayed for direction to the O.Ps to (1) to issue the Notice upon the O.Ps and Proforma O.P, (2) For replacement of the car free of cost or refund of value of the car i.e. Rs.9,45,554/-, (3) Rs.5,00,000/- as compensation for business loss, mental pain, agony & unnecessary harassment, (4) Rs.3,00,000/- for deficiency in service & unfair trade practice, (5) Rs.15,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, Utsav Motors Pvt. Ltd. has contested the case by filing written version contending inter-alia the case is not maintainable and bad for defect of non-joinder and mis-joinder of parties.
It is the specific case of the O.P. No.1 that the Utsav Motors Pvt. Ltd. is the authorized Franchise/Dealer of Tata Motors (Passengers Car Unit), (O.P. No.2). The complainant purchased one vehicle Tata Safari Dicor(Ex) with financial agreement of HDFC Bank and after such purchase he placed the vehicle on road for commercial purpose and was plying the same with full satisfaction. The complainant availed the periodical services as proved by us. After about 13th month of his purchase the complainant reported that “it seems to the complainant that some dust appeared in the wind shelled portion” and the said problem has been repaired. As it appears that due to mis-handling and improper care and use some problems cropped up with the vehicle. When such matter was brought to their Notice, the O.P No.1 informed the complainant over phone as well as in writing to bring the vehicle to O.Ps workshop so that they can examined the vehicle and take care of the problem as reported but due to some unknown reason the complainant did not produce the vehicle to O.Ps workshop. It was intimated to the complainant that the vehicle is within warranty (which will expire in the month of November, 2013) and the O.Ps will arrange for repair/remaining the subsisting problems if any but the complainant did not agreed. Even the O.Ps assured that they will fetch the vehicle through their driver but the complainant did not agreed. The entire allegation as brought against the O.Ps are denied.
It may be stated that the O.Ps examined/tested the battery and it was found to be O.K and there is no deficiency in service on their part and due to the willful omission on the part of the complainant to place the vehicle to O.Ps workshop, the alleged problem could not be repaired/remove as yet and the complainant ultimately with some ulterior motive file this case.
Ultimately the O.P. No.1 prayed for dismissal of the case. The O.P. No.2 & 3 have appeared in this case but there after backed out from the case.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service as alleged by the Complainants and are they liable in any way?
- Whether the Complainants are entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and also heard both the counsel at a length. Perused the Evidence on affidavit of the parties along with Written Argument.
Undisputedly, the Complainant purchased one Tata Safari Décor from the O.P. No. 1 on 25.11.2011 and the said vehicle was duly registered.
Point No.1.
Evdently the complainant has purchased a luxury car i.e. Tata Safari Dicor (Ex) from the O.P. No.1, Utsav Motor Pvt. Ltd. after getting financial assistance from O.P. No.3, HDFC Bank, Jaigaon Branch at price Rs.9,45,554/- O.P. No.2, Tata Motors, Passenger Car Units is service centre of Tata Motors. So, relation between complainant and O.Ps has been established and the complainant is a consumer under the O.Ps.
Point No.2.
Evdently showroom and workshop of prime O.P. No.1, Utsav Motors Pvt. Ltd. Is situated with jurisdiction of this Forum.
We further find that in this case total claim is Rs.17,60,554/-. So, it is clear that this Forum has territorial and pecuniary jurisdiction to try this case.
Point No. 3 & 4.
Admittedly the complainant Sri Ashok Kr. Shah has purchased a luxury car i.e. Tata Safari Dicor (Ex) from the O.P. No.1, Utsav Motors Pvt. Ltd. after taking financial assistance from the O.P. No.3, HDFC Bank, Jaigaon Branch. Tax Invoice (Annexure-A) also shows that the complainant purchased the car in question from O.P. No.1 at price of Rs.9,45,554/-.
It is the case of the complainant that from very beginning troubles cropped up in the said car and he had to bring same to showroom of the O.P. No.1 for repair on several occasions and actually there are/were manufacturing and mechanical defect in the said car and the same is required to be replaced.
In the present case warranty of the said car in question was for 2 years i.e. from 25-11-2011 to 25-11-2013.
It appears from the ‘Annexure-C’ i.e. Invoice dated 23-02-2012, 20-03-2012, 17-05-2012, 09-06-2012, 25-07-2012, 19-10-2012, 05-04-2013 & 24-04-2013 that within said warranty period the car in question was taken to service centre of O.P. No.1 for repair and Rs.70,214/- was paid as charge of repair.
It is the allegation of the complainant that following defect/trouble cropped up in the car in question.
- One tyre has a bubble look like taking air inside,
- The socker of the car repaired twice till date and presently did not work properly,
- Battery damaged and not functioning properly,
- Engine takes much oil and sounds loud,
- The mileage of the car is decreased,
- The interior of the car is damaged due to lick age of the body on top,
- A.C did not work properly,
- Window switch panel did not work properly,
- The body gets rusting in many places.
O.P. No.1 has not denied such allegation rather by letter dated 09-07-2014 admitted that they can resolve the body rushting, A.C and battery problem.
As per W/V filed by the O.P. No.1, Utsav Motors Pvt. Ltd. It is the allegation of the O.P. No.1 that due to mishandling and improper care and use such problem cropped in the said vehicle. But there is nothing to show by the O.P. No.1 that actually said car was mishandled and used improperly.
During hearing Ld. Agent/Advocate of the complainant submitted a ruling reported in 2013(4) CPR 114 (NC) where Hon’ble National Commission pleased to hold that it is duty of dealer and manufacturer to play pro-acting role and remove defects in vehicle, leaving no element of ambiguity about its fitness from technical point of view.
He cited another ruling reported 2012(2) CPR 360(NC) where Hon’ble National Commission pleased to hold that if vehicle is presented before dealer within warranty period it is his duty to attend to complainant and rectify defects to satisfaction of the complainant.
In his reply Ld. Agent/Advocate of the O.P. No.1 submitted that when they came to know about trouble in said vehicle they informed in writing and by telephone to the complainant to bring the car to their workshop for repairing.
The only letter dated 09-07-2013 reveals that the complainant was requested to bring the car for necessary repair on any days any time.
But we find that said letter was issued after filing of the present case. So, no reliance can be placed upon said letter and cannot be said that O.P. No.1 had any bonafide intention and we are constrained to hold that there was deficiency in service on the part of the O.P. No.1 & 2.
During hearing Ld. Agent/Advocate of the O.P. No.1 submitted that in the present case no step was taken to examine the vehicle in question by an independent expert like mechanical/automobile engineer to ascertain the defect of the vehicle. In his reply Ld. Agent/Advocate of the complainant submitted a ruling reported in 2013(2) CPR 595(NC) where in a vehicle almost every part of same had some problem including engine, Hon’ble National Commission pleased to hold that this is a case of resipsa locquitur where evidence in form of opinion of technical expert is not required to prove the case.
He submitted another ruling reported in 2013(1) CPR 117(WB) where vehicle was sent to service centre for necessary repair or removal of the defect and vehicle ran 38,039k.m. on 13-09-2007, Hon’ble State Commission pleased to hold that we are of the considered view that it would not be proper to order for replacement of the chassis or to return the total purchase amount of the chassis. But the fact remains that the complainant had to take the vehicle several times to the service centre for repair and having regard to the sufferings of the complainant we are of the considered view that it would meet the ends of justice if the amount of Rs.75,000/- is awarded as compensation and Rs.5,000/- as litigation cost.
In the present case vehicle in question was purchased on 25-11-2011 i.e. about 3 years back and so ran much.
In this juncture relying upon ruling cited above passed by our Hon’ble State Commission, we think end of justice would be meted up if the amount of Rs.1,00,000/- is awarded as compensation and Rs.10,000/- as litigation costs against O.P. No.1 & 2 and the case is dismissed against O.P. No.3.
Thus the case is succeeds in part.
ORDER
Hence, it is ordered that,
The DF Case No.56/2013 is allowed on contest against O.P. No.1 and on ex-parte against the O.P. No.2 but in part with litigation costs of Rs.10,000/- payable by O.P. No.1 & 2 jointly and/or severally to the complainant, Sri Ashok Kumar Shah.
The case is dismissed against O.P. No.3
The Opposite Parties are also directed to pay jointly and/or severally Rs.1,00,000/- as compensation to the complainant for his deficiency in service. The ordered amount pay to the Complainant directly to the concerned party within 45 days failure of which the Opposite Parties jointly and/or severally shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member
District Consumer Disputes
Redressal Forum, Cooch Behar
