Date of Filling:      11.11.2011

                                                                                                                       Date of Disposal:  04.10.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.  J. JUSTIN DAVID, M.A., M.L.                                 .…. PRESIDENT

                   TMT.      K. PRAMEELA, M.Com.                                         ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.                 ..… MEMBER-II

CC.No.41/2011

THIS FRIDAY THE 04^th   DAY OF             OCTOBER 2019

Mrs.J.Rajitha, W/o.Jeyaraj,

No.9/16, Elango Street,

Murugappan Nagar,

Chennai -600 057.                                                                                    …..Complainant.

                                                                //Vs//

1.Victory Premier Motors,

    Rep. by its Proprietor,

    No.124/1, P.H. Road,

    Velappanchavadi,

   Chennai -600 077.

2.Premier limited,

   58,Nariman Bhavan,

   Nariman Point, Mumbai - 400 021.                                      …..Opposite parties.

This complaint has been remanded back to this Forum as per the order passed by the State Consumer Disputes Redressal Commission, Chennai, in F.A.No.195/2013289/2017, dated 24.09.2014, and taken on the file of this Forum and posted on 29.10.2014 and coming upon before us finally on 20.09.2019 in the presence of Mr.L.Thanigaivel, counsel for the complainant and Mr.N.Karunanidhi, counsel for the 2^nd opposite party and the 1^st opposite party was set ex-parte on 06.10.2016 and after perusing the document and evidence before this forum and hearing the argument on both sides, this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act-1986 against the opposite parties for seeking a direction to pay a sum of Rs.9,79,045/- towards compensation for loss, hardship and mental agony caused to the complainant due the unfair trade practices, negligence and deficiency in service in treating the complainant by the opposite parties or in the alternative directing the opposite parties to replace the new vehicle to the complainant with damages and to pay a sum of Rs.10,000/- towards cost of this litigation.

2.The brief averment in the complaint filed by the complainant is as follows:-

The complainant is an owner a Maruthi Omni Van and was doing a business for her livelihood and used to ply school children to their school.  The complainant had intented to buy a new four wheeler.  Therefore the complainant went to the 1^st opposite party’s showroom at Velappanchavadi.  Then the 1^st opposite party’s sales representatives staff has showed the four wheeler kept in the showroom model Sigma AC model to the complainant and assured that the vehicle is good quality and further assured its road worthiness and the price is  Rs.5,90,000/- and also assured to arrange a loan. Believe their words the complainant has paid a sum of Rs.10,000/- towards documentation charges and the opposite party has required particulars from the complainant to get a loan and also the loan of Rs.4,90,000/- was sanctioned to the 1^st opposite party by the bank and the complainant paid the remaining balance of Rs.1,00,000/-.  The complainant purchased the vehicle on 13.11.2009 but the demo vehicle was delivered to the complainant on 17.11.2009. The complainant’s vehicle developed major defects within one month from the date of delivery and the air filter of the engine has fitted under left side door of the van, in the event of rain, the  water started to enter into filter and to the engine and also started to mix with the oil and heating of the front tyre drum while moving the vehicle etc.,  and the same  was informed to the 1^st opposite party but the 1^st opposite party instead of rectifying the mistake arrogantly collected a sum of Rs.8900/- for repairing the vehicle even though it was bounden duty of the opposite parties to rectify the defects within the warranty period of two year. After a week the vehicle was delivered to the complainant and also assured that the defects were rectified by the opposite party.  But on the same day the vehicle developed the same defects and next day the complainant has stated through telephone to the 1^st opposite party about the recurrence of the defects and then one Mr.Harikumaran was sent by the 1^st opposite party to the resident of the complainant at Chennai and he did some repairs.  Thereafter within two months the above vehicle broke down on the road and the vehicle had to be towed to the 1^st opposite party for repair and the 1^st opposite party again collected a sum of Rs.12,031/- from the complainant and the vehicle was repaired but could be used only for a month and developed the same defects.  Thereafter the complainant handed over the vehicle to the 1^st opposite party for 3^rd time.  At the time, the 1^st opposite party told that the vehicle has suffered major defects and the defect could not be repaired at all and thereby the complainant has suffered mental agony and financial loss due to the deficiency in service on the part of the opposite party.   Therefore the complainant prays for an order to direct the opposite party to pay a sum of Rs.9,79,045/- towards compensation for loss, hardship and mental agony caused to the complainant due to the unfair trade practices, negligence and deficiency in service in treating the complainant by the opposite parties or in the alternative directing the opposite parties to replace the new vehicle to the complainant with damages and to pay a sum of Rs.10,000/- towards cost of this litigation.  Hence this complaint.

3. The brief contention of written version of the 1^st opposite party is as follows:-

The complainant’s vehicle was left in the service station to attend the damage on 05.12.2011 and after service the above said vehicle was delivered to the complainant on 09.12.2011 in perfect running condition. It is true that a sum of Rs.11,221/- was charged for the work done.  The complainant did not avail the service with any authorized service centers for service at 40,000 km.  It is one of the conditions that during the currency of the warranty the vehicle covered by the warranty should be serviced only by an authorized service centers and the complainant did not observe this condition while taking service with Korean Tech Car Lounge. The complainant brought her vehicle to the service station on 12.12.2011 and the same was delivered on 16.12.2011 in good working condition and the opposite party also charged a sum of Rs.5,571/- for service rendered as the complainant has forfeited the warranty facility on account of taking 40,000km service outside other than authorized service stations.  It is one of the conditions that during the currency of the warranty the vehicle covered by the warranty should be serviced only by an authorized service centers and the complainant has not observed.  Therefore the opposite party has collected service charges on both the occasions.

4. The brief contention of written version of the 2^nd  opposite party is as follows:-

The complainant filed this complaint is misconceived, bereft of any cause of action and only to harass the opposite party.  The complainant is not a consumer as per the provision of the Consumer Protection Act-1986. The present complaint is not maintainable and tenable before this forum for want of jurisdiction.  As per the terms and conditions of the warranty policy any claim or dispute relating to or arising out of the warranty shall be subject to the jurisdiction of the courts at Mumbai only. The complainant has failed to produce any documentary evidence to show that there was any deficiency in service and vehicle purchased by the complainant is having any manufacturing defects as alleged in the complaint by the complainant. It is not admitted that the complainant did not have that much money at that time and expressed her inability and that the 1^st opposite party had a tie up with SBI, Egmore Branch and assured to arrange for a loan and sales representative of the opposite party mentioned about collected a sum of Rs.10,000/- towards documentation charges and the required particulars from the complainant to get a loan and get the signature from the complainant and a loan for a sum of Rs.4,90,000/- was sanctioned.  The transaction between the 1^st opposite party and the 2^nd opposite party is principal to principal basis and therefore the 2^nd opposite party is not aware about any of the allegation as alleged by the complainant.  It is further denied that within a month from the date of delivery, the above said vehicle developed major defect and the air filter of the engine was fitted under left side door of the van and that in the event of rain, the water started to enter in to the filter and to the engine and started to mix with the oil and thereafter the vehicle used to break down and other all defects mentioned in the complaint. The 2^nd opposite party is not admitted that the 1^st opposite party instead of rectifying the mistake arrogantly collected a sum of Rs.8900/- for repairing the vehicle, even though it was bounden duty of the opposite parties to rectify the defects within warranty period of two year and after a week the vehicle was delivered to the complainant and the 1^st opposite party assured that the defects were rectified but on the same day the vehicle developed the same defect and again became unmotorable and unworthy to be driven safely on the road.  The complainant herself had admitted that she was doing a business in travels and used to ply school children to their school and in view of the provision of the consumer Protection Act the complainant cannot be considered as a consumer and is not entitled to claim any reliefs.  It is also not admitted that the 1^st opposite party collected a sum of Rs.12,031/- from the complainant unnecessarily and the vehicle was repaired but could be used only for a month and developed the same defects and the 1^st opposite party finally told the complainant that the vehicle was suffering from major manufacturing design and defect and could not be repaired at all.  There is no manufacturing defect and all the alleged problems are due to poor maintenance and bad driving on the part of the complainant. It is not admitted that the cause of auction for the complainant arose of Velappanchavadi, Chennai -77, when the vehicle bearing the present No.TN-18-A-9104 was booked on 13.11.2009 and on 17.11.2009 when the vehicle was delivered to the complainant.  Thereafter when the vehicle broke down and developed defects and also when the opposite parties acknowledged after the vehicle entrusted to them for repairs that the vehicle was beyond repairs and therefore absolutely no cause of action has even arisen for the complainant to file the present complaint against this opposite party. The opposite party before delivery of the vehicle, Pre Delivery Inspection (PDI) of the vehicle was carried out and the complainant after being satisfied about the condition of the vehicle has accepted the delivery thereof. Whenever the vehicle was reported with the 1^st opposite party for service at all time the 1^st opposite party carried out the small repairs promptly, which were not at all attributable to any manufacturing defect. The complainant did not follow the advice and instructions given in the owner’s manual, while using the said vehicle, which might have resulted in to the alleged complaint of the complainant. In view of clause 13 of the warranty policy the opposite party is not at all liable to pay compensation either monetarily of in lieu thereof to the complainant as alleged by him. The complainant has not come before this forum with clean hands therefore this complaint may be dismissed.

4.  In order to prove the case, on the side on the complainant, proof affidavit submitted for his evidence and Ex.A1 to Ex.A18 were marked.  While so, on the side of the 2^nd opposite party, the proof affidavit filed and has not filed any documents and adduced oral argument on both sides. The 1^st opposite party was set ex-parte.

5. At this juncture, the points for determination before this Forum is as follows:-

(1)Whether there is any deficiency in service on the part of the opposite parties as alleged in the complaint?

(2)Whether the complainant is entitled for compensation of Rs.9,79,045/- from the opposite parties?

(3)Whether the complainant is entitled for alternative relief of replacement of the vehicle?

(4)  To what other reliefs, the complainant is entitled to?

7. Point No.1 & 2:-

The case of the complainant is that the complainant purchased a Sigma AC Model 4 wheeler for Rs.5,90,000/- from the 1^st opposite party on 13.11.2009 and the vehicle was delivered by the 1^st opposite party on 17.11.2009.  Within one month from the date of delivery, the above said vehicle developed major defects.  Therefore the complainant informed the same to the 1^st opposite party and the 1^st opposite party instead of rectifying the mistake collected Rs.8900/- for repair charges.  Thereafter within two months the vehicle brake down on the road and sent the vehicle to the 1^st opposite party for repair and for 3^rd time also same defect developed and the complainant made a complaint to the 1^st opposite party to replace the vehicle and there is no response to the complainant and thereby committed unfair trade practice, negligence and deficiency in service.

8. The 2^nd opposite party contended that the complainant is not a consumer as per provision of Consumer Protection Act-1986 and further this forum has no jurisdiction to entertain the complaint because as per the terms and conditions of the warranty policy any claim or dispute relating to the vehicle shall be subject to the jurisdiction of the court of Mumbai only.  There is no manufacturing defect in the vehicle and the alleged problems are due to poor maintenance and bad driving on the part of the complainant.  The complainant has taken the delivery of the vehicle after being satisfied about the condition of the vehicle.  The complainant did not follow the advice and instruction given in the owner’s manual and therefore there is no unfair trade practice, negligence and deficiency in service on the part of the opposite parties.

9. The complainant is doing business for her livelihood as self employment and not for commercial purpose. The complainant is using the income for her livelihood and therefore the complainant is the consumer within the meaning of Section 2(d) of the Consumer Protection Act-1986.  The Consumer Complaint can be filed in a forum where the opposite party is residing or carrying on his business. Here in this complaint the 1^st opposite party is doing business at Velappanchavadai within the jurisdiction of this forum.  Hence this forum has the power to entertain this complaint.  Further as per section 3 of the Consumer Protection Act -1986 this consumer complaint is maintainable before this forum.

10. The 1^st opposite party is the dealer and the 2^nd opposite party is the manufacturer of Sigma AC Model 4 wheeler.  The complainant purchased a Sigma AC model 4 wheeler from the 1^st opposite party for a sum of Rs.5,90,000/- on 13.11.2009.  The complainant paid a sum of Rs.1,00,000/- by cash and remaining balance of Rs.4,90,000/- by way of loan from SBI.  The 1^st opposite party delivered the vehicle to the complainant on 17.11.2009.  Ex.A1 is the copy of registration certificate of the vehicle.  Ex.A2 is the copy of insurance policy and Ex.A3 is the copy of loan sanction letter. The above documents proved that the complainant purchased the vehicle for a sum of Rs.5,90,000/- from the 1^st opposite party and the complainant also obtained loan of Rs.4,90,000/- from State Bank of India to purchase the vehicle.

11. According to the complainant the vehicle developed major defects within a month from the date of delivery and the 1^st opposite party delivered demo vehicle to the complainant.  The complainant further alleged that the air filter of the engine has fitted under left side door of the van, in the event of rain, the water started to enter into filter and to the engine and also started to mix with the oil and heating of the front tyre drum while moving the vehicle and etc.,   and therefore the 1^st opposite party delivered a defective vehicle to the complainant.  On the other hand, the opposite party contended that the alleged problems are due to poor maintenance and bad driving of the complainant and the complainant did not follow the advice of the owner’s manual.  On perusal of documents, this forum finds that the above defects in the vehicle arose within a month from the date of delivery. Hence the question of poor maintenance and bad driving on the part of the complainant does not arise. The complainant issued an e-mail to the 1^st opposite party on 05.02.2010 stating that the vehicle purchased from the 1^st opposite party suffers following defects. 1) Front both sides wheels get over heat, after driving just 15-20 kilo meter it’s so hot that one can’t even stand near the vehicle.2)Brakes have failed three times. 3) While driving vehicle is getting pulled towards the left side, to avoid this we have to put strain on the stearing to control the vehicle”.  The vehicle was purchased by the complainant on 13.11.2009 and the same was delivered to the complainant on 17.11.2009 and within three months from the date of delivery the complainant informed the 1^st opposite party about the defect in the vehicle.  Thereafter the complainant also sent a letter dated 20.03.2010 to the Branch Manager, State Bank of India regarding the defects in the vehicle hence the defects in the vehicle arose within three months from the date of purchase of the vehicle.

12. The complainant alleged that the defects were informed to the 1^st opposite party and the 1^st opposite party has taken the vehicle for repair but the 1^st opposite party instead of rectified the defects collected 8,900/- for repairing charges and after a week the vehicle was delivered to the complainant.  The complainant further alleged that on the same day the vehicle developed the same defects and next day the complainant has informed the same through telephone to the 1^st opposite party and then one Mr.Harikumaran staff of the 1^st opposite party came to the resident of the complainant at Chennai and he did some repairs.  Thereafter within two months the above vehicle broke down on the road and the vehicle had to be towed to the 1^st opposite party for repair and the 1^st opposite party again collected a sum of Rs.12,031/- from the complainant and the vehicle was repaired but could be used only for a month and developed the same defects.  Thereafter the complainant handed over the vehicle to the 1^st opposite party for the 3^rd time for repair but the opposite party was unable to repair the vehicle and there is manufacturing defect in the vehicle.  The opposite party has not disputed the above fact.  The opposite party has made some repair for three times within five months from the date of purchase.  But the opposite parties were unable to rectify the defects.  The allegation that the complainant has not maintained the vehicle properly is unsustainable.  Because the complainant used the vehicle for five months and in the five months more than three times the complainant handed over the vehicle to the opposite parties for repair and service. The defects in the vehicle occurred within the warranty period and therefore the 1^st and 2^nd opposite parties are jointly and severally liable to rectify the defects on free of cost but the 1^st opposite party has not rectify the defect on free of cost but collected 8900/- for the 1^st time and also collected 12,031/- for the 2^nd time. The vehicle purchased by the complainant from the 1^st opposite party was having many defects and the same were not repaired by the opposite parties.  The opposite parties failed to rectify the defects with the warranty period on free of cost.  This attitude of the opposite parties amounts to deficiency in service and the same caused mental agony and financial loss to the complainant.

13. The complainant alleged that there is manufacturing defects in the vehicle. In this regard the complainant has not taken any steps to appoint an expert to ascertain defects in the vehicle but the complainant filed Ex.B13 certificate issued by the Friends auto garage stating there is manufacturing defects.  Ex.A13 is the certificate containing the particulars about the vehicle is having some defects and to rectify the same cost of Rs.30,000/-is estimated.  Further the person who issued said certificate was not examined as witness to prove the defects.  Therefore this forum has not considered Ex.A13 as expert opinion. On the other hand the opposite parties delivered a defective vehicle to the complainant and the complainant was unable to use the vehicle for her livelihood and the complainant also suffered physical and mental agony and financial loss due to the deficiency in service on the part of the opposite parties and therefore the complainant is entitled for compensation of Rs.2,00,000/- from the 1^st and 2^nd opposite  parties. Thus the point Nos.1&2 are answered accordingly.

14. Point No.3:-

The complainant prays for an alternative relief directing the opposite parties to replace the vehicle.  The complainant has not taken any steps to send the vehicle for expert opinion to prove the alleged manufacturing defect.  The certificate issued by the Friends Auto Garage Ex.A13 cannot be accepted.  Therefore the complainant is not entitled for an alternative relief of replacement of vehicle.  Thus the point No.3 is answered accordingly.

15. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly the 1^st and 2^nd opposite parties are jointly and severally directed to pay sum of Rs.2,00,000/- (Rupees two lakhs only) towards compensation for causing mental agony and financial loss to the complainant due to deficiency in service on the part of the 1^st and 2^nd opposite parties and also to pay sum of Rs.10,000/-(Rupees ten thousand only) towards cost of litigation to the complainant.  With respect to other reliefs, this complaint is dismissed.

The above said amount shall be  payable by the 1^st and 2^nd opposite parties  within two months from the date of receipt of the copy of this order failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist and transcribed and computerized by him and corrected by the president and pronounced by us in the open forum of this 04^th October 2019.

-Sd-                                                                   -Sd-                                                      -Sd-

MEMBER-II                                              MEMBER-I                                        PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 2^nd opposite party:-

           -No documents.

List of document filed the 1^st opposite party:-

(Ex-parte)

    -Sd-                                                              -Sd-                                                           -Sd-

MEMBER-II                                              MEMBER-I                                        PRESIDENT