Andhra Pradesh

Chittoor-II at triputi

CC/40/2013

C.Kaliyappan ,S/o. Chengan - Complainant(s)

Versus

Varalakshmi Automobiles Pvt Ltd., Rep. By its authorized Signatory - Opp.Party(s)

P.Prabhakar

27 Oct 2014

ORDER

Filing Date:24.07.2013

Order Date: 27.10.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

MONDAY THE TWENTY SEVENTH DAY OF OCTOBER, TWO THOUSAND AND FOURTEEN

 

C.C.No.40/2013

 

Between

 

C. Kaliyappan,

S/o. Chengan,

D.No.1-434, Kothapalle,

Gudipala mandal,

Chittoor,

Chittoor District,

Andhra Pradesh                                                                                … Complainant

 

 

And

 

1.         Varalakshmi Automobiles (P) Ltd.

            Rep. by its Authorised Signatory,

            D.No.13-122/2, Opp. Vartha,

            Renigunta Road,

            Tirupati – 517 507.

 

2.         TATA Motors Limited,

            Rep. by its Authorised Signatory,

            26^th Floor, Centre No.1,

            World Trade Centre,           

            Cuffe Parade,

            Mumbai – 400 005.                                                              …  Opposite parties.

 

 

            This complaint coming on before us for final hearing on 15.10.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.P.Prabhakar, counsel for the complainant, and Opposite party No.1 remained exparte, and Sri.G.Sreenivasulu, counsel for the opposite party No.2, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Section-11 and 12 R/W Section-2(1)(f)(g) of C.P.Act 1986, by the complainant.

2. The brief averments of the complaint are:-  That on 25.05.2012, the complainant purchased TATA ACE-HT vehicle Engine No.2751D106DXYS89371 with its chassis No.MAT445056CZD 39199 for Rs.3,41,000/-, for his personal use, to eek out his livelihood, from the opposite party No.1. The opposite party No.1 issued two cash receipts for Rs.3,41,000/- on 25.05.2012. The vehicle is registered in the name of  complainant. Its registration No.AP-03-TA-8667. The vehicle is covered by warranty for one year from the date of purchase. As per the terms and conditions of the warranty, complainant got affected 1^st and 2^nd free services to his vehicle in question with the opposite party No.1 on 08.08.2012 and 30.10.2012 respectively and the 1^st opposite party also issued cash bills on the respective dates.

3.  Since then the vehicle is giving frequent troubles. Once on 15.12.2012 on Chandragiri-Chittoor highway, again on 02.01.2013 while the complainant is proceeding to Chittoor, again on 14.01.2013; and also on 05.02.2013. Though the vehicle was repaired by opposite party No.1, its functioning was bad. Though the problems in the vehicle were occurred during the warranty period, the 1^st opposite party collected some charges from the complainant and finally 1^st opposite party stated that there is defect with the engine in its manufacturing. When the complainant demanded to replace the engine, opposite party No.1 stated that its cost is about Rs.90,000/-, therefore the company will not accept for replacement of the engine. Therefore, the complainant got issued notice on 14.02.2013 calling upon the opposite parties 1 and 2 to replace the engine or to pay Rs.90,000/- towards cost of the engine. Opposite party No.1 neither gave reply nor paid the amount. Opposite party No.2 issued reply on 14.03.2013 asking the documents of the vehicle. Accordingly the complainant sent the documents along with the notice to opposite party No.2 on 20.03.2013 but opposite parities 1 and 2 did not settle the claim. Hence the complaint against opposite parties 1 and 2 for replacement of the engine or payment of Rs.90,000/- towards cost of the engine, compensation of Rs.50,000/- and Rs.1,000/- towards litigation expenses.

4.  Opposite party No.1, remained exparte.  

5.  Opposite party No.2 filed its written version mentioning about its performance and achievements in Paras I to III and further raising its objections viz.- that complaint is vague; baseless and misconceived. The complainant failed and neglected in following the guidelines given in the Operator’s Service Book (OSD). The opposite party No.2 relies on relevant terms and conditions of the warranty of the vehicle; limitations; Operator’s Service Book. That every consumer has to carry out the mandatory recommended services at specified service intervals at the authorized service centre. The objections raised by opposite party No.2 from A to L are about the Operator’s responsibilities; clauses of warranty etc. and Para.1 to 7 contains parawise complaint allegations.

6.  It is further contended that it was given to understand that there was no problem with the vehicle at the time of delivery and the complainant had taken delivery of the vehicle after proper inspection and satisfaction and the same ought to have acknowledged by the complainant in the vehicle delivery challan. The complainant reported the vehicle and got its 1^st and 2^nd free services and failed to report the vehicle for 3^rd free service inspite of remainders from opposite party No.2. Later the vehicle was reported on 16.01.2013 at 22354 kms, complaining starting problem and poor pick-up. The opposite party No.1 being the dealer as a service gesture had provided service under warranty, again on 22.02.203 complainant reported the vehicle at 25765 kms with the complaint of engine oil consumption is high. The dealer affected the repairs properly in accordance with the terms and conditions of the warranty. Likewise on 23.03.2013 at 26550; on 03.04.2013 at 27501 kms; on 08.07.2013 at  24500 kms; on 01.08.2013 at 26606 kms and on 16.08.2013 at 29897 kms, the vehicle was brought before the opposite party No.1 and it was got repaired on paid service subject to the terms and conditions of the warranty.

7.  The complainant had breached the terms and conditions of the warranty, therefore he cannot claim any benefits. There is no manufacturing defect in the engine of the vehicle in question. The warranty of the vehicle clearly stipulates the obligations of the manufacturers to limited service; replacement of such parts free of cost, if found to be defective, when the vehicle is brought to the manufacturer or to the authorized dealer within the warranty period. The complainant avoided 3^rd free service, which attracted the cessation of warranty. The vehicle of complainant met with an accident, which also attracts the cessation of warranty. Complaint is filed suppressing the facts and with false allegations and prays the Forum to dismiss the complaint with costs.

8.  Both complainant and opposite party No.2 have filed their respective evidence affidavits and got marked Exs.A1 to A17 for the complainant and Exs.B1 to B6 for the opposite party No.2. Complainant and opposite party No.2 have filed their respective written arguments. Heard both sides.

9.   Now the points for consideration are:-

          (i).  Whether the engine of the TATA ACE bearing registration No. AP-03-TA-

                 8667 suffered from manufacturing defect? If so, whether opposite party

                No.2 is liable to replace the engine?

         (ii).  Whether the opposite parties 1 and 2 are liable for deficiency of service?

         (iii)  To what relief?

            10.  Point No.(i):-  The complaint allegations in nutshell, are that the complainant purchased the TATA ACE vehicle bearing No.AP-03-TA-8667 from the showroom of opposite party No.1, who is the authorized agent / dealer of opposite party No.2 on 25.05.2012 by paying Rs.3,41,000/- as shown in Ex.A1 two cash receipts issued by opposite party No.1 in the name of the complainant. As scheduled, he has reported the vehicle before opposite party No.1 on 08.08.2012 and 30.10.2012 and the 1^st opposite party carried out 1^st and 2^nd free services on the respective dates. Thereafter, the vehicle has to be reported while its meter reading is in between 29500 and 30500 kms. But the vehicle started giving troubles from 2^nd free service onwards. Once the vehicle stopped on Chandragiri-Chittoor highway on 15.12.2012, again on 02.01.2013 while the complainant was going to Chittoor, again on 14.01.2013 and also on 05.02.2013, that the vehicle was stopped abruptly due some problems that arose in the vehicle on all the occasions. The vehicle was produced before the 1^st opposite party, who affected repairs on the vehicle. When the vehicle was troubled on 05.02.2013, it was taken to 1^st opposite party and demanded the 1^st opposite party to explain proper reasons for its frequent troubles. The 1^st opposite party stated to the complainant that there is manufacturing defect in the engine, as such the complainant demanded the 1^st opposite party to replace the engine, on that the 1^st opposite party stated that the cost of the engine is about Rs.90,000/-, as such the company will not replace the engine. Then the complainant left the vehicle with the 1^st opposite party for replacement of engine or to pay its cost. Then the 1^st opposite party issued notice under Ex.A12 to complainant stating that if the vehicle is continued to be with 1^st opposite party, it will be charged Rs.100/- per day. Therefore, the complainant got issued notice to both the opposite parties 1 and 2 on 15.02.2013 under Ex.A14 calling upon the opposite parties 1 and 2 either to replace the engine or to pay its cost. Thereafter, the 1^st opposite party maintained silence without giving any reply. Where as the 2^nd opposite party got issued reply under Ex.A15 dt:14.03.2013 in reference No.BLR/L/Con/LN/In-RE/2013/23. Accordingly the complainant had produced all the concerned documents before opposite party No.2 along with Ex.A16 letter. Even thereafter the opposite party No.2 did not replace the engine or did not choose to pay the cost of the engine, so as to enable the complainant to run his vehicle.

            11.  According to Ex.A2 Operator’s Service Book 1^st service is to be carried out in between 9500–10500 kms. running of the vehicle, 2^nd service is to be carried in between 19500-20500 kms. These two services were admittedly carried out. The 3^rd service is to be carried out while the meter reading of the vehicle run in between 29500-305000 kms. As could be seen from the written version and chief affidavit filed on behalf of the opposite party No.2, the complainant failed to report the vehicle for 3^rd free service but its own written version and chief affidavit shows that the vehicle was reported on 16.08.2013 while the meter reading of the vehicle was at 29897 kms. which is apt to affect the 3^rd free service but the 2^nd opposite party did not assign any reason as to why it could not carried out 3^rd free service when the vehicle is very much available with them admittedly.

            12.  The claim of the complainant is very specific to the effect that the vehicle was purchased by the complainant to eek out his livelihood and it could not be used for his own purpose, for eeking out his livelihood because of the defects / problems that developed in the vehicle.

            13.  The 2^nd opposite party admitted the purchase of the vehicle in question by the complainant through the authorized dealer of the 2^nd opposite party and the said dealer i.e. 1^st opposite party issued Ex.A1 two cash receipts evincing the sale of the vehicle.  The 2^nd opposite party also admitted that the complainant has produced the vehicle for 1^st and 2^nd free services within the time stipulated. They also admitted that the vehicle was produced before its agent as many as 8 times from January 2013 to 16.08.2013, for each time of reporting of the vehicle, it seems that the 2^nd opposite party has noted down the meter reading of the vehicle, some variations are also found in the observations made by the 2^nd opposite party so far as meter reading is concerned. The 2^nd opposite party recorded the meter reading of the vehicle when it was reported on 03.04.2013 as 27501 kms., the same opposite party No.2 recorded the meter reading of the vehicle when it was reported on 08.07.2013 as 24500, similarly again the meter reading of the vehicle was recorded when it was produced on 13.07.2013 as 22526 kms., why this disparity or discrepancy in meter reading was krept in? The contention of the 2^nd opposite party that the vehicle was not reported for 3^rd free service during the meter reading of the vehicle in between 29500-30500 kms is proved to be false by its own written version as well as chief affidavit, as it was specifically mentioned in the written version and chief affidavit that the vehicle was reported on 16.08.2013 and the meter reading was found as 29897 kms., which is within the schedule mentioned for 3^rd free service.

            14.  As per the written version of the 2^nd opposite party, when the vehicle was reported on 23.03.2013, while its meter reading shown as 26550 kms with a complaint of engine oil consumption is high, again it was reported on 03.04.2013 while its meter reading was 27501 kms with the same complaint, the engine is removed and installed; water pump removed; cylinder hub removed and determined the condition; engine removed, dismantled and assembled, determined the condition; engine rear seal removed, shutter, starter were removed and installed; compressor checked; transmission removed and installed; clutch drive plate removed and installed under warranty. A copy of the job card under Ex.B1 and tax invoice under Ex.B2 were issued. Again the vehicle was reported on 08.07.2013 while its meter reading was 24500 kms with a complaint of oil leak, later the vehicle was reported on 13.07.2013 while its meter reading is 22526 kms. So, unless there is manufacturing defect in the engine, the 2^nd opposite party had no need to remove the engine and dismantled the same and reassembled the same.  For the reasons best known to 2^nd opposite party, the engine was removed, dismantled and reassembled to determine its condition, this version of 2^nd opposite party itself shows that there is manufacturing defect in the engine. The 2^nd opposite party nowhere mentioned either in its written version or in chief affidavit that opposite party No.2 got the vehicle bearing No.AP-03-TA-8667 or its engine were checked or examined by its qualified and competent engineers and found the engine is free from any sort of manufacturing defect.

            15.  The contention of the 2^nd opposite party that since the complainant failed to report the vehicle for 3^rd free service, it attracts the cessation of warranty and that the vehicle in question met with accident, which also attracts the cessation of terms and conditions of the warranty, for which no material is placed before this Forum. Though the 2^nd opposite party has taken a plea that the vehicle was met with an accident, no scrap of paper is placed before this Forum to substantiate its contention. Under those circumstances and on the admissions of the 2^nd opposite party referred above, I am to hold that there is manufacturing defect in the engine and also deficiency of service is there on the part of both the opposite parties. As such both the opposite parties are liable to replace the engine of the vehicle in question or to pay its cost of Rs.90,000/- to the complainant (as cost of the engine was not in dispute). Accordingly this point is answered.

            16.  Point No.(ii):-  For the reasons best known, the 1^st opposite party, who affected 1^st and 2^nd free services within the stipulated time and also affected repairs to the vehicle on 15.12.2012, 02.01.2013, 14.01.2013 and 05.02.2013 etc. and also who informed the complainant that there is manufacturing defect in the engine and its cost happens to be Rs.90,000/-, the company will not replace the same, without making his appearance and without filing any written version or chief affidavit and also written arguments on his behalf, it remained exparte. The 2^nd opposite party ignoring the non-appearance of the 1^st opposite party contested its case on its own footing admitting that the vehicle was reported before the 1^st opposite party as many as 8 times on various complaints such as oil consumption is high, vehicle was struck down and one such date of report, the 2^nd opposite party got the engine of the vehicle removed, dismantled and reassembled, which itself substantiate the case of the complainant. Since the 1^st opposite party remained exparte, it can be said that he has no case to contest, as such both the opposite parties 1 and 2 are jointly and severally liable to pay the compensation and litigation expenses apart from replacement of the engine No.2751D106DXYS89371 with its chassis No.MAT445056CZD 39199 with a new one or to pay its cost of Rs.90,000/-.

            17.  Point No.(iii):-  In view of my holding on points 1 and 2, I am to state that the complainant is entitled to replacement of engine of the vehicle TATA ACE-HT  bearing registration No. AP-03-TA-8667 or its value of Rs.90,000/-, compensation of Rs.10,000/- for mental agony and loss of earning through the vehicle and also litigation expenses of Rs.1,000/-.   

Both the opposite parties 1 and 2 are jointly and severally liable to replace the engine of the vehicle referred above, whose engine number and chassis number were also furnished with a new one within six (6) weeks from the date of this order or to pay its cost of Rs.90,000/- (Rupees ninety thousand only), to pay compensation of Rs.10,000/- (Rupees ten thousand only) with interest at 9% per annum from the date of complaint i.e. 24.07.2013, till the realization and also liable to pay costs of litigation expenses of Rs.1,000/- (Rupees one thousand only) to the complainant within six weeks from the date of this order.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 27^th day of October, 2014.

 

        Sd/-                                                                                                                       Sd/-                             

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: C.Kaliyappan S/o. Chengan (Evidence Affidavit filed.).

RW-1:  Ms.Thinlay Chukki (Chief Affidavit filed.).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1.	25.05.2012	Cash bills issued by 1st opposite party (2Nos.)
2.	25.05.2012	Warranty book issued by opposite parties.
3.	08.08.2012	1st Service Payment Bill issued by Opposite party No.1.
4.	03.10.2012	Payment Bill issued by Opposite Party No.1.
5.	30.10.2012	2nd Service payment Bill issued by Opposite Party No.1
6.	17.12.2012	Payment Bill issued by Opposite party No.1
7.	03.01.2013	Service station repair Booking bill.
8.	03.01.2013	Payment bill issued by Opposite party No.1.
9.	16.01.2013	Payment bill/Tax Invoice issued by Opposite party No.1.
10.	05.02.2013	Service station repair Booking bill.
11.	06.02.2013	Payment bill issued by Opposite Party No.1.
12.	11.02.2013	Notice/Letter issued by opposite party No.1.
13.	13.02.2013	Payment Bill/Tax Invoice issued by opposite party No.1.
14.	15.02.2013	Office copy of Legal Notice issued by complainant with Postal receipts.
15.	14.03.2013	Reply Notice issued by 2nd opposite party.
16.	18.03.2013	Office copy of Legal Notice issued by complainant to 2nd opposite party with courier receipt.
17.		Served Postal Acknowledgement cards(2Nos.)

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1.	28.08.2012	Job card Customer copy Dt. 28.08.2012 filed on behalf of Petitioner/Opposite Party No.2
2.	28.08.2012	Tax Invoice Dt.28.08.2012 filed on behalf of Petitioner/Opposite Party No.2
3.	05.01.2013	Job card Customer copy Dt. 05.01.2013 filed on behalf of Petitioner/Opposite Party No.2
4.	05.01.2013	Tax Invoice Dt.05.01.2013 filed on behalf of Petitioner/Opposite Party No.2

 

 

5.	25.03.2013	Job card Customer copy Dt. 25.03.2013 filed on behalf of Petitioner/Opposite Party No.2
6.	25.03.2013	Tax Invoice Dt.25.03.2013 filed on behalf of Petitioner/Opposite Party No.2

 

 

 

                                                                                                                                                                 Sd/- 

                                                                                                         President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.