DIFICIENCY OF SERVICE

C.C. No. 82 /2008

Between

V. Kishore S/o Subramanyam Naidu,
aged 33 years, Hindu, Business, residing
at Dr.No. 28-379/1, Kings Cross, Ramnagar
Colony, Chittoor.
… Complainant.

And

1.The Managing Director,
TOYOTA KIRLOSKAR MOTOR,
Bijandi Industrial Area, Ramanagar,
BANGALORE

2.M/s Harsha Auto Motors Pvt., Ltd.,
2-40/5, Kothaguda,
Near Hitech City, Hyderabad-32

3.The General Manager,
Bajaj Allianz General Insurance Co., Ltd.,
Head Office, 608 & 609, II Block,
White House, Begumpet,
Hyderabad – 500 016.

4.The Branch Manager,
Bajaj Allianz General Insurance Co., Ltd.,
Kongareddipalle, Chittoor.

5.The Manager,
Lanson Value Added Services,
No. 36, Poonamalle High Road,
Koyambedu,
Chennai-107.

… Opposite Parties.

This complaint coming on before us for final hearing on 02.04.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri P. Purushottam Rao, counsel for the complainant, and Sri P.M.Gopalakrishna & L.Dhananjaya Naidu counsels for opposite parties 1 & 2 and Sri K. Chengalrayulu counsel for 3rd opposite party and the 4th opposite party remained exparte. Sri Kanipakam Suresh counsel for 5th opposite party and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President
ON BEHALF OF THE BENCH

This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act against the opposite parties for recovery of Insurance amount of Rs. 8,15,547/- towards damages of TOYOTA INNOVA car and Rs. 1,00,000/- towards compensation for mental agony.

The complainant submits that 1st opposite party is the manufacturing company of TOYOTA INNOVA cars and 2nd opposite party is its dealer, 3rd opposite party is Insurance Company, 4th opposite party is Branch office of 3rd Opposite Party and 5th opposite party is authorized service center of Opposite Parties 1 & 2.

The complainant submits that he purchased TOYOTA INNOVA car AP 03 AA 3201 on 16.06.2006 from 2nd opposite party. The 1st opposite party is the manufacturer of the vehicle. The said vehicle was insured with 3rd opposite party and the Insurance policy was subsisting from 16.06.2006 to 15.06.2007. The complainant has taken a comprehensive Insurance Policy for a sum of Rs. 8,15,547/- to cover full insurance to the vehicle.

The complainant submits that the said TOYOTA INNOVA car was kept in front of his house and went to Chennai on his personal work. On 25.02.2007 when he returned to the house he found that his car was burnt due to electric short circuit, which was occurred due to defective manufacturing of the said vehicle. On 25.05.2007 he gave complaint to the I Town Police Station, Chittoor and it was registered as Crime No. 45/07.

The complainant submits that his brother intimated the fire accident of the car to the 3rd opposite party and the 3rd opposite party deputed its surveyor on the same day who submitted his report to 3rd opposite party. The complainant also informed about the fire accident of the vehicle to the 2nd opposite party who also deputed their authorized person to inspect the burnt vehicle. On the advise given by the authorized person of 2nd opposite party, he handed over the vehicle to 2nd opposite party at Hyderabad. The 2nd opposite party informed that the vehicle is not due to any manufacturing defect and 3rd opposite party will pay the entire value of the car. Since the opposite parties 1 to 4 have not paid the claim, he gave legal notice dt. 29.11.2007 to the opposite parties 2 & 3. The 2nd opposite party gave reply notice stating that the vehicle was fitted with certain non genuine accessories, concerning the central remote locking system etc., and also admission key was tampered. The 3rd opposite party did not issue any reply. The complainant gave rejoinder to the reply notice of 2nd opposite party stating that the accessories concerning the central remote locking system etc., were fitted by 5th opposite party, who is authorized service center of the opposite parties 1 & 2. Therefore the 5th opposite party is also added as necessary party.

The complainant submits that there is a defect in manufacturing of the vehicle and the same was sold by the 2nd opposite party and it was manufactured by 1st opposite party. The vehicle was insured with the 3rd opposite party as such all opposite parties are liable to pay insured value of the vehicle Rs. 8,15,547/- and damages of Rs. 1,00,000/-. The complaint may be allowed.

The 1st opposite party filed Written Version alleging that 1st opposite party is the manufacturer of motor cars. The 2nd opposite party informed to 1st opposite party that he sold the subject car to the complainant on 16.06.2006 in perfect working condition. The complainant drove the car for more than 4 months in rightful condition, as he purchased it. Later he went to 5th opposite party and had central remote locking system installed on his car. He then drove the vehicle for 6 months thereafter. Nothing untoward happened during this period of one year. All of a sudden the complainant says the car was burnt by fire, as a result of manufacturing defect. The stand taken by the complainant that fire which gutted the car by electrical origin can not at all be sustained, because almost one year from the date of taking delivery of the car the complainant did not find any defect in it. Further the alleged statement made by fire department and police to the effect that fire originated from electrical system of the vehicle is incorrect. The 2nd opposite party who inspected the damaged car found that the vehicle wiring was tampered it. This circumstance indicates that some work on electrical system was done immediately preceding the fire accident, by an unauthorized person. Therefore the claim of the complainant must fail. There was no manufacturing defect in the subject car. This opposite party is not liable to pay compensation and the complaint may be dismissed.

The 2nd opposite party filed Written Version with similar objections as averred by the 1st opposite party. It submits that the vehicle was destroyed due to manufacturing defect. It delivered a brand new car in excellent condition to the complainant. The complainant drove the said car for 4 months, after driving the car for more than 4 months he had central remote locking system installed on his car through 5th opposite party. He drove the car for 6 months thereafter. He had no complaint on any nature during this one-year period. Therefore subject car did not suffer any manufacturing defect. This opposite party submits that it found that the vehicle wiring was tampered; this circumstance indicates that some work of vehicle system was done preceding the fire accident by an unauthorized person. There is no deficiency of service on its part. The complaint may be dismissed.
The 3rd opposite party filed Written Version alleging that the subject car was insured with this opposite party and the Insurance policy is subsisting. This opposite party submits that the Fire Authority gave certificate that the cause of accident was suspected because of fire due to electric origin. They are not proper persons to issue such a certificate. The Government Engineer or any authorized Government Engineer has to issue a certificate for the exact cause of fire to the vehicle. It was not done so. So far as manufacturing defect this opposite party is not liable to pay any compensation to the complainant. The complaint may be dismissed.

The 5th opposite party filed Written Version alleging that it is an authorized service and repair center of opposite parties 1 & 2. There is no deficiency on the part of this opposite party No.5, it is impleaded as formal party. The complaint may be dismissed against him.

The points for consideration are :
1.Whether there was manufacturing defect in TOYOTA INNOVA car bearing No. AP 03 AA 3201 as contended by the 3rd opposite party ?

2.Whether the 3rd opposite party is liable to pay the claim under Insurance Policy Ex.A2 of Rs. 8,15,547/- to the complainant.

3.Whether the opposite parties 1 to 4 committed deficiency in service?

4.Whether the complainant is entitled to recover damages of Rs.1,00,000/- towards mental agony ?

5.To what relief ?

The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A12. The opposite parties filed Chief Affidavit of RWs-1 to 4 and marked Ex.B1 to B4. Ex.A1 is the warranty book issued by 2nd opposite party. Ex.A2 is the copy of Insurance policy issued by 3rd opposite party. Ex.A3 is the certificate dt. 24.05.2007 issued by Station Fire Officer, A.P Fire service, Chittoor. Ex.A4 is the copy of F.I.R. Ex.A5 is the Bill relating to purchase of parts from opposite parties. Ex.A6 is the letter dt. 07.07.2008 issued by 5th opposite party. Ex.A7 is the copy of legal notice dt. 29.11.2007 issued by the complainant to the opposite parties 2 & 3. Ex.A8 is the reply notice dt. 12.11.2007 issued by 2nd opposite party. Ex.A9 is the copy of rejoinder notice issued by complainant to the opposite parties. Ex.A10 is the service copy of reply to the rejoinder notice issued by 2nd opposite party. Ex.A11 is the copy of final report filed by S.I of Police, I Town P.S, Chittoor Ex.A12 is the Xerox copy of registration certificate. Ex.B1 is the receipt for taking delivery of TOYOTA INNOVA car. Ex.B2 are terms and conditions of sale. Ex.B3 is the copy of policy. Ex.B4 is the surveyor report.

Points No.1 to 4 :-
It is an admitted fact that the complainant purchased TOYOTA INNOVA car from the 2nd opposite party and the 1st opposite party is its manufacturer. It is also an admitted fact that the complainant insured his vehicle with 3rd opposite party for Rs. 8,15,547/- under Insurance Policy Ex.A2 and the Insurance Policy is subsisting when the TOYOTA INNOVA car was involved in fire accident. It is also an admitted fact that the complainant informed about the fire accident to his vehicle to 2nd and 3rd opposite parties.

The learned counsel for the complainant contends that he purchased the TOYOTA INNOVA car on 16.06.2006 and the warranty period of the car is 3 years. The complainant submits that even before the expiry period of warranty the vehicle was burnt due to accidental fire or suspected fire or due to electric wire defect of the vehicle. All parts are fitted to the complainant’s vehicle by 5th opposite party who is the authorized service center of opposite parties 1 & 2.

The learned counsel for the complainant contends that the vehicle was burnt within warranty period and opposite parties 1 to 4 are jointly and severally liable to pay the insured amount to him. The opposite parties 1 to 4 have not settled the claim and they committed deficiency in service and therefore he is entitled to claim the entire insurance amount of Rs. 8,15,547 as per Ex.A2. Ex.A2 is a comprehensive policy, the same may be granted to him.

The learned counsel for the 1st opposite party contends that it sold the car to the complainant in a perfect working condition. The complainant drove the car for 4 months without any complaint. Subsequently he got arranged central remote locking system to his car through 5th opposite party and drove the said car for 6 months thereafter. There was also no complaint for a period of one year. This is sufficient to prove that the subject car did not suffer from any manufacturing defect.

The learned counsel for the 1st opposite party contends that the complainant has taken defence that the fire, which gutted the car had an electric origin, which is not correct.

The 2nd opposite party also advanced similar arguments. The learned counsel for the 2nd opposite party contends that the 2nd opposite party inspected the damaged vehicle and found that the vehicle wiring was tampered with certain non genuine accessories concerning central remote locking system was found to be fitted and hazard indication light was cut negligently. This circumstances indicates that some work on electrical system was done by unauthorized person and the car was burnt. Therefore the claim of the complainant must fail. There is no deficiency of service on the part of this opposite party.

When the opposite parties 1 & 2 took defence that there is no manufacturing defect in the damaged car and that some unauthorized person did some work on electrical system of the car and they had also report to that effect, the said report was not filed before this Forum. The opposite parties 1 & 2 have not given copy of report to the Insurance Company/ 3rd opposite party, as well as the complainant. Their argument that some unauthorized person tampered the electrical system of the car is not supported by any acceptable material and therefore the same is disbelieved as not proved.

The learned counsel for the 3rd opposite party contends that the fire authority has given certificate that the cause of accidental fire was suspected for cause of fire due to electric origin. It contends that the fire authority is not competent to give such certificate. The company engineer or any other authorized Government engineer has to issue a certificate for the exact cause of fire to the vehicle, it was not done so. It contends that so far the manufacturing defect, it is not liable to pay any compensation to the complainant. There is no policy coverage. The 3rd opposite party took defence that there is manufacturing defect in the TOYOTA INNOVA car only for the sake of defence. The 3rd opposite party has not taken any steps to ask the opposite parties 1 & 2 to depute their Engineers and find out the exact cause of fire to the vehicle immediately after the accident occurred. The 2nd opposite party stated that it deputed its agent to inspect the vehicle and directed the complainant to hand over the vehicle to the 2nd opposite party, accordingly the damaged car was sent to 2nd opposite party at Hyderabad. So the car is with opposite parties 1 to 3 only, they are alone to find out the exact cause of fire accident. They have not taken any steps to find the truth and opposite parties 1 & 2 are orally contending that there is no manufacturing defect and the 3rd opposite party says that there is manufacturing defect. Such oral contentions do not stand in as much as the opposite parties failed to collect any evidence regarding cause of fire accident, even after they took possession of the damaged card.

The opposite parties 1 & 2 argued on prudence theory basis that because the complainant used the car for one year without any complaint, there is no manufacturing defect. When Fire Department gave certificate that they suspect fire in the car due to electric origin. The opposite parties 1 to 3 have not tried to do investigation on this line. Therefore I am of the view that the opposite parties have not evinced any interest to find out how the car was burnt. The burden is not upon the complainant to prove the said fact, because he is layperson and the damaged car is not in his possession. In such circumstances the complainant can claim the insurance amount under the insurance policy Ex.A2. The Insurance company/ 3rd opposite party refused to settle the claim of the complainant, because the car was burnt due to manufacturing defect, which fact was not proved by 3rd opposite party. Therefore the 3rd opposite party alone is liable to pay the insurance amount to the complainant.

The complainant contends that he insured his vehicle for Rs. 8,15,547/- and the insurance policy is a comprehensive policy Ex.A2. Under comprehensive Insurance Policy, he can claim the entire insurance amount of Rs. 8,15,547/-, but the surveyor of the 3rd opposite party assessed the loss of damaged car for Rs. 4,76,558/- only.

The learned counsel for the complainant contends that the car is one year old. I.D.V value is Rs. 8,15,547/-. The surveyor deducted 50% depreciation for some parts and 10% for some other parts, which is unreasonable. The surveyor estimated the market value as Rs. 6,00,000/- and assessed the final loss as Rs.4,76,558/-. This Forum is guided by the Surveyors Report and the same is granted to the complainant, with interest at 9% p.a from 25.02.2007 till realization.
Points 1 to 4 are answered in favour of the complainant.
Point No. 5 :-

In the result the complaint is allowed for Rs. 4,76,558/- (Rupees four lakhs, seventy six thousands, five hundred and fifty eight only) with interest at 9% p.a from 25.02.2007 till realization and the opposite party No. 3 is directed to pay the said amount within 6 weeks from the date of this order. Thus the complaint is allowed with costs of Rs. 1,500/- (Rupees one thousand and five hundred only).

Mr. Josico Fernandes
H. No. 28-A, Sonfator, Camurlim,
Salcette Goa ….. Complainant

V/s
1. The Manager ,
M/s Sharayu Automobiles,
H. NN. H. 17, Kesarval,
Cortalim Goa 403 701

2. The Sales Manager,
M/s Toyota Kirloskar Motors Pvt. Ltd.,
Bangalore, India ….. Opposite Parties

Advocate Greig Barros for the Complaiannt
Advocate V.S. Kharantage for the O.P.
Dated: 28.04.2009

O R D E R

(Per Shri Aremmy G. O. Fernandes- Member)

By this Order we dispose of the Complaint dated 28.03.06 filed by the Complainant against the Opposite Parties (OPs) herein under the Consumer Protection Act 1986

Brief facts of the case are

1.The Complainant purchased a Toyota Corolla Car from OP1 for Rs 11,58,000/- on 03/09/2003 for which the OPs had allegedly given a warranty of 3 years or 1 lakh kilometers run which ever was earlier.

2.The Complainant has alleged that during routine cleaning of the car he noticed damage to the front bumper which could not be noticed from the exterior as it was for the interior part of the bumper. He also noticed that left side parking lights of the bumper were also damaged from inside.

3.The above defects were brought to the notice of OP1 on 28.11.2005 but OP1 refused to accept the claim of the Complainant for replacement. However on 30.11.2005 their representative Ms. Valencia telephonically requested the Complainant to bring his car to their workshop. But the Complainant insisted that OP1 certify the defects before the car was taken to the workshop of the OP and also before the seals of the nuts and bolts are broken so as to avoid any conflict that may arise after the car was handed over. But the OPs failed to convey their acceptance and therefore it is contended by the Complainant that there is clear deficiency of service as the defect was not rectified despite warranty.

4.It is also the case of the Complainant that the said defects are manufacturing defects which the OPs are liable to replace promptly and their negligence in this regard has caused unnecessary tension to him for which too the OPs are jointly and severally liable.

5.The Complainant issued legal notice to OPs dated 08.12.2005 but the OPs failed to respond.

6.The cause of action allegedly arose when the OPs failed to respond to comply the requirements of the legal notice and it continues till date.

7.The Complainant has now prayed for order from this Forum directing the OP to
a) Forthwith replace the manufacturing defects to the inner side of the bumper and the left side bumper parking light
b) Pay Rs. 100,000/- as compensation for mental tension and inconvenience caused to the complainant
c) Any other relief this Forum deems fit and proper

8. The Complainant has relied on the following documents:
i. Registration certificate of the vehicle No. GA 08 A 5981.
ii. Legal notice dated 06.12.2005 with AD card.
iii. Fax report dated 12.12.2005.
iv. Any other document relevant to the case

On issuance of summons the OPs filed their written version on the following amongst other grounds.

A)They raised preliminary objections, that the complaint is misconceived in law and facts and ought to be dismissed in limine. That he has no cause of action, that he has approached the court with unclean hands and that the complaint suffers from gross delay and latches and therefore the Complainant is not entitled to invoke equitable jurisdiction of this Forum and the complaint is hence liable to be dismissed.

On merits of the case they further submitted:

B)That OP2 is registered in the name of M/s Toyota Kirloskar Motors Pvt Ltd and not M/s Toyota Kirloskar Company as stated by the Complainant.

C)That they deny that the warranty of 3 years or one lakh kms includes replacement of the car. The OP has further submitted that it is not mentioned any where on the warranty issued.

D)That they deny the Complainant noticed the defects during routine cleaning of the car and brought them to the notice of OP on 28.11.05 and they refused to accept the claim of the Complainant for replacement of the bumper and its left side parking lights.

E)They denied that they or their representative Ms. Valencia Fernandes called the Complainant on his mobile and informed him to bring the car to the workshop. The OP has however clarified that on 27.11.05 the Complainant called one of the employees i.e. Ms. Valencia of OP1 and informed that his Toyota car has suffered certain damages and as such he was advised to bring the car for ascertaining the damages on the next day. Accordingly the car was brought on the next day by a Mr Luis, representative of the Complainant as can be observed from the Gate Pass. On inspection it was found that there was a small dip burse on the bumper which suggested that the car hit an object in motion resulting in damages and the damage was not a manufacturing defect and therefore not covered under the warranty. This fact was informed to the representative of the Complainant Mr. Luis who refused to sign the repair order. The Complainant had however signed the delivery note dated 2.09.2005 that he has taken delivery of the car in good condition from the OPs.

F)That the damage to the front bumper and left side parking lights of the bumper could be seen by naked eyes externally as can be seen from the Photographs produced by the OPs and that it is totally false that the damage to the bumper and the left side parking lights of the bumper are internal damages as stated by the Complainant.

G)The OP denied that the Complainant informed them that they will have to certify the defects before the car could be taken for repairs and before the seal of the nuts and bolts are removed. It is their contention that no such certificate can be issued to any car/vehicle. They have also submitted that when a new vehicle is received a New Vehicle Receipt Report (NVRR) is done wherein the new vehicle is thoroughly checked externally including its mechanical parts and that thereafter a Pre Delivery check (PDC) is done wherein the new vehicle is thoroughly checked externally as well as internally and report prepared

H) The OP has denied that inspite of long laps they have not conveyed the acceptance of his proposal and have also denied that this is a clear deficiency on their part. They have reaffirmed that the damage to the front bumper and left side parking lights of the bumper is not a manufacturing defect which is covered under the warranty and as such does not amount to deficiency in service. The OP has further alleged that the Complainant noticed the damages after about two months from the date of delivery and as such they cannot be termed as manufacturing defects for if they were manufacturing defects the same would have been noticed at the time of taking delivery of the vehicle or immediately thereafter but certainly not after two months.

I) The OP also denied that the above said defects are manufacturing defects and they are liable to replace them promptly. They also denied there was negligence on their part to attend the defects and further denied that it has caused unnecessary mental tension to the Complainant and that the OPs are jointly and severally liable to make good the estimated amount of Rs. 100,000/-.

J) The O.P. admitted the legal notice issued by the Complainant and also submitted that the reply was sent on 28.12.2005 but the same was returned back by the postal authorities with remark “Not known. Return to the sender”.

K) The OP has also denied any cause of action has accrued to the complainant to file the present complaint and has further alleged that the complaint is filed with malafide intentions and that with ulterior motives the Complainant is trying to put up a false claim for rectification of the defects on the OPs.

L) The OP has also alleged that in the circumstances stated the Complainant is not entitled for any relief and the complaint being frivolous and abuse of the process of law is liable to be dismisses with exemplary costs.

In response to clause (B) and under directions of this Forum the Complainant effected change in the nomenclature of OP2 on 18.04.2007 from the earlier M/s Toyota Kirloskar Company to the one presently appearing herein in this order.

The Complainant filed his affidavit in evidence dated 01.08.2007. The OPs also filed their affidavit in evidence dated 28.01.2008 and also filed supporting affidavits of the witnesses Shri Devendra Fernandes and Ms.Valencia D’Costa both dated 07.03.2008. Parties also filed their final written arguments dated 14.10.2008 and 04.12.2008 respectively.

Now on perusal of the pleadings, the affidavitory and documentary evidences and the written submissions advanced by the parties we proceed to record our observations and findings as would appear hereinafter.

I.At the outset we dismiss the preliminary objections raised by the OP as being vague and unsubstantiated and consequently not maintainable.

II.On the merits of the case we find the Complainant purchased a new Toyota car from OP1 and two months later noticed damages to the front bumper of the car and also to the left side parking light of the bumper. He now alleges these are manufacturing defects liable to be replaced by the OPs but they failed to do so.

III.It is his case that the defects were noticed by him during routine cleaning of the car and that they were not noticeable from the exterior as they were for the interior part of the bumper. It is also his case that the left side parking light of the bumper was also damaged from inside. Per contra the OPs have denied the defects are on the interior side and that they are not noticeable and in support of their contention have also produced on record the photographs of the car displaying the said defects. We have perused the said photographs and it is our observation that the defects are clearly visible and are not internal defects as alleged by the Complainant.

IV.It is further the case of the Complainant that he brought these defects to the notice of the OP1 on 28.11.05 but the said OP refused to accept their claim to replace the defects. Apparently to give credence to this allegation that the OPs were made aware of the defects, the Complainant has further alleged that thereafter the representative of the OP1, Ms. Valencia telephonically informed the Complainant to bring the vehicle to the workshop on 30.11.05. But this also has been denied by the OPs. In fact they affirm that it was the Complainant who telephoned Ms. Valencia on 27.11.2005, intimating her that his car had suffered some damages and as such he was instructed to bring the car to their workshop for assessment. This fact has also been confirmed by Ms. Valencia herself in her affidavit in evidence filed herein on 07.03.2008. Now if there was any untruth in these denials then there was nothing that prevented the Complainant to seek the cross examination of the OP as well as that of Ms. Valencia so as to bring out he truth. Since no such action has been initiated by the Complainant and more so in the face of the denials by the OPs this Forum can only conclude that the aforesaid allegations of the Complainant as regards informing the Complainant of the defects and thereafter being telephoned by the representative of the OP, Ms.Valencia, do not appear to be factually correct.

V.As regards the allegation that the defects in his car are manufacturing defects and therefore liable to be replaced by the OP, the Complainant has failed to produce any supporting evidence in this regard. He has even failed to produce the said warranty card which according to him entitles him for the replacements of the defective parts. The OPs have categorically denied this allegation also. Irrespective of this, the Forum is also of the view that, if the alleged defects were indeed manufacturing defects then they should have existed right from the time of delivery of the vehicle and should have been easily noticeable to the Complainant at that time of delivery itself or at the most immediately thereafter. We have examined the delivery note executed by the Complainant at the time of talking delivery of the car, we have also examined the New Vehicle Receipt Report (NVRP) maintained by the OPs as also the Pre delivery check conducted by them. None of these documents produced on record by the OPs indicate existence of any defect in the vehicle prior to or at the time of delivery. The reports as well as the photographs have also not been challenged/objected to by the Complainant. It is hence our findings that at the alleged defects were non existent at the time of delivery and this inevitably leads us to the obvious conclusion that the said defects must have been caused after the delivery of the car and therefore they cannot be manufacturing defects.

VI.Significantly, it is also the contention of the OPs that the alleged defects have been noticed after about two months and as such they cannot be manufacturing defects. We cannot help but agree with the OPs herein for it is also matter of common understanding that, when a party buys an expensive car such as the present one after paying Rs. 1158000/- he would undoubtedly scrutinize the same at least for any outwardly damages. The alleged damages as being clearly visible we find it difficult to accept that they would have missed such a scrutiny during the delivery. It is also difficult to believe that the Complainant did not notice them for almost two months thereafter. The only plausible explanation seems to be that the said defects did not exist then and as not being manufacturing defects. Hence, we do not observe any deficiency on the part of OPs in not rectifying these defects under the alleged terms of warranty that have not been produced for our perusal.

VII.We observe the Complainant has hence failed to prove any of the alleged acts of deficiency against the OP’s herein. The Complaint is therefore found not maintainable and is hence dismissed.

Madan Lal son of Sh. Ujjagar Ram, resident of V.P.O. Kandola, Via Adampur, Distt. Jalandhar.

(Complainant)

Vs.

1. M/s Radiant Toyota, Chadha Super Cars (P) Ltd. G.T. Road, Jugiana, Ludhiana.

2. M/s Kotak Mahindra Primus Ltd., Feroze Gandhi Market, Ludhiana.

3. M/s Toyota Kirlosker Motors Ltd. Customer Service Department, Plot No.1 Bidadi, Industrial Area, Bidadi Nagar, Bangalore-Rural-562109.

(Opposite parties)

O R D E R

1. Complainant who retired from Army, intended to purchase vehicle for earning livelihood by way of self employment. For such purpose, went to the car show room of opposite party no.1, dealing in sale of Toyota vehicles. Officials/employees of opposite party no.2 at that time were also sitting in the office of opposite party no.1. Opposite party no.2 agreed to finance purchase of vehicle by the complainant. Employees of opposite party no.1 Sh. Sunil and Sh. Satwant Singh drew payment chart in their hands for finance to the complainant and was informed that opposite party no.2 would finance Rs.3,00,000 and complainant had to pay Rs.1,81,302/- along with Rs.1000/- on account of Octroi, Rs.1000/- for temporary RC number and Rs.3000/- as expenses for preparation of the draft. He was informed to pay EMI of Rs.9135/- per month. Thereafter, the vehicle was delivered to the complainant on 12.11.2004 and was asked to come for collection of the documents i.e. sale letter etc. after two days, due to reason that certain formalities were to be completed from CSD Bathinda. Vehicle was released through delivery challan passed on 12.11.2004. The vehicle was insured as commercial vehicle and assigned temporary registration no. PB-10AT TEMP 2004 -8481. Thereafter, complainant kept on approaching and requesting opposite parties no.1 & 2 time and again to issue NOC, so that he could get the vehicle registered but they delayed the matter on one pretext or the other. Finally in March 2005, opposite party sent an amount of Rs.4,81,200/- as total sale consideration of the vehicle to CSD Bathinda vide draft dated 18.3.2005. He was assured that once the amount is received by CSD Bathinda, then immediately original papers will be given to the complainant. Despite payment of the amount to CSD , opposite parties have failed to deliver the original documents to the complainant. Consequently, issued registered notice to the opposite parties which was wrongly replied by them. Due to non providing of documents his earning was effected. He could not ply the vehicle properly. Opposite party no.1 had been regularly issuing temporary registration certificate and one such certificate was issued on 17.3.2005 after four months of the delivery of the vehicle. Such temporary RC was issued till permanent has not been obtained. Had opposite party issued original documents on 12.11.2004, there was no necessity to issue the temporary certificate on 17.3.2005. Opposite party used to take back previous temporary RC at the time of issuing fresh one. Such act of the opposite party caused financial loss, mental torture and agony to the complainant, for which he is entitled to compensation of Rs.2,00,000/- and also additional amount of Rs.3,00,000/- as damaged due to deficiency in service.

2 Opposite party no.1 has controverted all the material particulars and denied allegations of the complainant. It is pleaded that M/s Chadha Super Car Pvt. Ltd. from whom the complainant purchased the vehicle vide invoice dated 19.3.2005 is a necessary party. Complaint is time barred, not maintainable and no relief can be granted against the opposite party no.1. Complainant has no cause of action. Because all documents pertaining to registration purpose have already been handed over to the representative of the complainant Sh. Satwant Singh on 19.3.2005 by the authorised dealer M/s Chadha Super Car Pvt. Ltd. Complainant has concealed the material facts by not disclosing getting the vehicle serviced without any protest. He had purchased the vehicle for commercial purpose, so, not entitled to file the complaint. Averred that complainant along with Sh. Satwant Singh was the borrower who took loan from opposite party no.2 and complainant has concealed this fact. Complainant himself was not driving the vehicle, rather, co-owner Sh. Satwant Singh was driving the same for hire purpose. Issuance of temporary registration certificate on 12.11.2004 is admitted. Sending draft for sale consideration of the vehicle to CSD Bathinda as claimed by the complainant is denied. Issuance of temporary RC on 17.3.2005 is denied and same is claimed to be fake and not issued by opposite party. They had only issued temporary RC dated 12.11.2004. Complainant is not entitled for any compensation.

3. Opposite partyno.3, manufacturer of the vehicle claimed that they have relation based on principal to principal with opposite party no.1. Opposite party no.1 never acted as their representative. They are not responsible for any act of opposite party no.1. They have also controverted allegations of the complainant.

4. In order to prove their respective versions, both the parities led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the parities and have gone through the file and scanned the documents and other material on record.

6. In this case, main grouse of the complainant is non furnishing of documents pertaining to purchase of the vehicle, due to which he failed to ply the same. Whereas, the opposite party has specifically pleaded that documents of the complainant, such as invoice, form 21 and 22 were received by the complainant through his partner Sh. Satwant Singh on 19.3.2005. . It be mentioned that said Satwant is special power of attorney of the complainant for the purpose of presenting the complaint as authorised in power of attorney Ex.C.1. Interesting to note that the complainant has not sought direction against opposite party no.1 in this complaint to provide or handover the documents of the vehicle in his favour. Rather non handing over of such documents is claimed amounting to deficiency in service and had simply sought compensation of Rs.5,00,000/- in all from them. It is in the back drop of such relief that we have to adjudge whether the documents of the vehicle have or have not been till now made available by opposite party no.1 to the complainant.

7. As referred earlier, complainant has not sought directions against opposite party to handover documents of the vehicle in his favour. This has to be reckoned with defence of the opposite party that documents were made available to the complainant through his representative on 19.3.2005, at the time of delivery of the invoice (Ex.R.2). Ex. R.2 purportedly contain signatures of one Satwant Singh. But complainant denies having this document being signed by Sh. Satwant Singh. To prove that aspect, we were referred by the complainant to delivery challan-cum-gate pass dated 12.11.2004 Ex.C.`13, which against the column of “customer’s signatures” contain signatures of Sh. Satwant Singh. We being not expert are not in a position to conclude whether both these documents Ex.C.13 and R2 contain signatures of one and same person namely Sh. Satwant Singh. But when direction for handing over sale certificate and relevant documents necessary to affect the registration of the vehicle is not sought, so we take that such documents must have been given by opposite party to the complainant through Sh. Satwant Singh on 19.3.2005.

8. Now we shall advert to main dispute claiming amounting to deficiency in service or resorting to unfair trade practice by the opposite party. The dispute pertains to unethical procedure adopted by opposite party no.1, qua issuance of temporary registration certificate of the sold vehicle. It is admitted case of the parties that the complainant purchased vehicle from opposite party no.1 after getting it financed from opposite party no.2. Question is on which date the price of the car was paid by the complainant to opposite party no.1. Because, delivery of the vehicle admittedly was made to the complainant on 12.11.2004 vide delivery challan-cum-gate pass Ex.C.13. Such aspect has been conceded to be true and correct by the opposite party as recorded in delivery challan Ex.C.13 that the sold vehicle was hypothecated with and financed by Kotak Mohindra Primus Ltd. (OP No.2). Total price of the vehicle was Rs.4,81,302/-. Columns of loan, margin money and balance to be collected have been kept blank. But admittedly, the complainant was put in possession of the vehicle on 12.11.2004. It is in the scenario food for thought, whether opposite party no.1 could have delivered possession of the vehicle without receiving price thereon either from the complainant or the financer, who had financed purchase of the vehicle by the complainant. Complainant as pleaded, qua which has also filed an affidavit of his attorney Sh. Satwant Singh Ex.CW1/A that the loan amount of Rs.3,00,000/- was paid by opposite party no.2. Rest of the money was paid by him. Incidentally we have no stand qua this version of opposite party no.2 as they have not filed any written statement. The only document placed by opposite party no.2 is that they have no objection in case hypothecation/lease clause is deleted qua the vehicle purchased by the complainant.

9. Loan agreement between the complainant and opposite party no.2 Ex.C.12 is dated 10.11.2004. Vehicle was delivered to the complainant by opposite party no.1 on 12.11.2004 subsequent to obtaining loan from opposite party no.2. So, it means and implies in such circumstances that opposite party no.1 had received total price of the car from the complainant on 12.11.2004 and on receipt of the same delivery of the car was made to the complainant. At the time of delivery of the vehicle temporary registration certificate dated 12.11.2004, copy of which is Ex.R.1 was issued by opposite party no.1 to the complainant. All these aspects go to show that opposite party no.1 had received full and final payment, qua cost of the car from the complainant, before delivery of the vehicle in his favour on 12.11.2004. But complainant in order to get some excise relief being ex-army man wanted to purchase the same through Canteen Stores Department of the army from defence quota. So, was told by opposite party no.1 on 12.11.2004 that bill, sale letter etc. would be handed over to him within two days after completing formalities with Canteen Stores Department, Bathinda.

10. Grievance of the complainant is that he was made by opposite party no.1 to visit them time and again for getting documents of the vehicle, which they postponed for 3-4 months appears to be genuine and correct. As documents of the vehicle were handed over to the complainant as per defence of the opposite party on 19.3.2005 after issuance of certificate Ex.C.5 dated 18.3.2005 by the Canteen Stores Department, Bathinda on receipt of cost of the car Rs.4,81,302. This price of the car was paid by the complainant to opposite party no.1 with the help of loan raised from opposite party no.2 on 12.11.2004. The day from 12.11.2004 till 18.3.2005, opposite party no.1 had been using money of the complainant for its own use. Though they were supposed to remit the same to the Canteen Stores Department, Bathinda. By using this money of the complainant from 12.11.2004 till 18.3.2005, opposite party certainly would be guilty of resorting to unfair trade practice in order to get enriched its coffers by using money of others without paying any interest.

11. Opposite party no.1, therefore, in our view is proved guilty of resorting to unfair trade practice by going against the provisions of Motor Vehicle Act, 1988 by issuing temporary registration certificate time and again. It is allegation of the complainant that first temporary registration number qua this sold vehicle was issued by opposite party no.1 on 12.11.2004 Ex.R1. The same was valid upto 11.12.2004. Be stated that under section 43 of the Motor Vehicle Act, 1988, temporary registration is valid only for a month and thereafter it is not renewable. That provision of the law was defied and infringed with impunity by the opposite party no.1 by adopting unique method, to cheat the law.

12. Though opposite party no.1 has taken stand that another temporary registration certificate dated 17.3.2005 (Ex.C4) qua this vehicle was never issued by them. This document was forged by the complainant. Complaint claims that opposite party no.1 had been issuing one temporary registration certificate and after taking it back, used to issue another one. Opposite party no.1 has claimed that Ex.C.4 dated 17.3.2005 was never issued by them and it is a fabricated document. However, if bare look is made on temporary registration certificate Ex.C4 dated 17.3.2005 and Ex.R.1 dated 12.11.2004, it appears that they have been prepared on similar type of performa having printed address of opposite party no.1 and also containing its stamp along with signatures of some official signing temporary registration certificate. Format of both these certificate is as such which leaves no doubt in mind that both certificates Ex.C.4 and Ex. R1 were issued from the same agency. Ex.C.4 is not at all forged document. This make us to believe that on 17.3.2005, when cost of the car was transmitted by opposite party no.1 to Canteen Stores Department, Bathinda, they in order to meet requirement of law issued another temporary registration certificate valid from 17.3.2005 to 16.4.2005 in his favour. Issuance of this temporary registration certificate in totality is infringement of provisions of section 43 of the Motor Vehicle Act 1988. Because the provisional registration certificate was earlier issued by opposite party no.1 to the complainant on 12.11.2004 vide temporary registration, copy of which is Ex.R1. It means and shows that opposite party no.1 had been indulging in mal practice in quite disregard of law by empowering the complainant to ply his vehicle on temporary registration certificate and on expiry of one temporary certificate had been issuing another temporary registration certificate for a month by taking back the previous temporary registration certificate. By this mode, opposite party no.1 not only ditch the law but violated the same intentionally and deliberately, with purpose to use the money of the complainant which they retained from 12.11.2004 till transmitted to Canteen Stores Department, Bathinda in March 2005. Complainant vide notice Ex.C.6 dated 14.6.2006 had alleged against the opposite party that despite his demand of invoice, sale certificate etc. they had been issuing temporary registration certificate from time to time and last certificate was issued on 17.3.2005. Due to non registration of vehicle, complainant suffered immensely. This notice was sent by the complainant under postal receipts Ex.C.7 to C. 9. Opposite party no.1 replied the notice vide reply Ex.C.10. It was conveyed to the complainant by opposite party no.1 that vehicle along with documents was delivered to the complainant in the presence of representative of M/s Kotak Mohindera Primus Ltd. (OP No.2).They had issued only one temporary registration certificate at the time of delivery of the new vehicle to the complainant. As such, admission of the opposite party is that documents were delivered to the complainant along with vehicle. This stand is in contradiction of the plea of the opposite party in their written statement. Because in the written statement, pleaded that documents of the vehicle were delivered to the complainant on 17.3.2005 whereas the vehicle was delivered on 12.11.2004. So, as per this reply, the documents were delivered on 12.11.2004. Conflicting stand is taken by the opposite party no.1. So, it means that they had made improvement from their stand contained in reply Ex.C4 and took contradictory stand while filing the written statement.

13. In these circumstances, complainant is able to bring home his allegations against the opposite party no.1 to the hilt. Plea of the opposite party no.1 that temporary RC Ex.C.4 is forged and not issued by them deserves outright rejection.

14. It is contended on behalf of opposite party no.1 that the complaint is bad for non joinder of necessary party M/s Chadha Super Cars but that objection is meaning less as in temporary RC Ex.R1 dated 12.11.2004, sale invoice Ex.R.2 Radiant Toyota and M/s Chadha Super Cars are shown to be of same concern. So, M/s Chadha Super Car is not different from Radiant Toyota, hence, the same is not a necessary party.

15. Contention of the opposite party is also that the claim is time barred. Even as per pleadings of opposite party, sale certificate and documents were given to the complainant on 17.3.2005. Complainant denied it. Consequently cause of action continued in his favour. The matter remained pending between them. Hence, in these circumstances, we conclude the complaint to be within limitation.

15. In view of the discussions, we allow this complaint by concluding that opposite party no.1 resorted to unfair trade practice to get enriched without authority, money of the complainant and practiced fraud with him after infringing the law of Motor Vehicle Act 1988 by issuing temporary registration certificate time and again.

16. Therefore, the complaint is allowed and as a result we order opposite party no.1 to pay compensation of Rs.50,000/-(Rs.Fifty Thousands only) to the complainant in these peculiar circumstances of the case and also litigation cost assessed at Rs.2000/-(Rs. Two Thousands only). Order be complied within 45 days of the receipt of copy of the order, failing which shall be liable to pay the same with 9% interest per annum from the date of complaint till payment.

A.K.Mohammed Nassar,

“Delsile”, Chovva, Complainant

Kannur 6.

1. Managing Director,

Amana Toyota VPK Motors (P) Ltd.

Thottada.P.O. Kannur 7.

2. The Manager,

Customer Service Division

Toyota KirloskarMotor Ltd.,

Plot Bidai, Ramanagar Taluk,

Bangalore Rural Dist 562 101 Opposite parties

3. Manging Director,

Good Year India Ltd.,

Mathura Road, Bullabagarh,

Faridabard, Hyrana.

O R D E R

This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pay the cost of New Tyres with Rs.10, 000/- as compensation and cost.

The case of the complainant is that he had purchased a Toyota, Innova-G1-8 model vehicle on 28.11.06. At the time of purchase the opposite parties made believe the complainant that the vehicle and its tyres are of high quality and also backed their claims with massive advertisement campaign. But to the utter shock of the complainant on 3.2.07, after running 5370kms, the wheel tyres on the rear right side had a crack on the shoulder area and admitting the defects in the tyre the opposite parties replaced the same. But again on 16.5.07, after 12,800/- km usage again found an external crack on the shoulder area of the tyre and the spot inspection of the report of the 3rd opposite party found that this was not adjustable under warranty and hence the replacement of the tyre was denied. This indicates and prove the poor quality and manufacturing defects of the tyes.

The complainant has used this vehicle only for personal use and for the use of his family members. Because of the non-replacement the complainant had to use other vehicles for several days and this resulted in huge expenditure. The complainant had purchased a new tyre spending Rs.3750/-. So the opposite parties had committed unfair trade practice and deficiency of service. Stating all these facts the complainant issued a registered lawyer notice to the opposite parties on 2.11.07, but instead of replacing it they had issued reply stating false contentions. Hence this complaint.

On receiving notice from the Forum opposite parties 1 to 3 appeared and filed their version. The opposite parties 1 and 2 filed version with the following contentions: Oppose parties 1 and 2 admits that the complainant had purchased a Toyota Innova from 1st opposite party and it was free from any defect and all other fittings are of good qualities and are free from any defects.

The tyres are warranted under a separate warranty provided by the tyre manufacturer. The warranty provided by the vehicle manufacturer does not cover tyre, battery etc. The tyres are manufactured by 3rd opposite party and it is the responsibility of the tyre manufacturer to rectify or replace the tyres if any manufacturing defect is seen in the tyre. So the opposite parties 1 and 2 has no liability and the complaint is liable to be dismissed.

On getting the second complaint from the complainant on 16.5.07, the 1st opposite party reported to the 3rd opposite party and they conducted a spot inspection of the tyre, the very same day. The spot inspection conducted by the tyre manufacturer revealed that the complaint of external part as shoulder area is due to some external hit and not due to any manufacturing defect. So the tyre manufactures reported that the tyre is not replaceable under warranty. So there is no deficiency of service or unfair trade practice on the part of opposite parties 1 and 2.

3rd opposite party also filed version contending that the complainant is not a consumer. The complainant is a businessman and he purchased the vehicle for his business purpose. The 3rd opposite party admits that the tyre fitted in the vehicle supplied by the 2nd opposite party is manufactured by the. But they never offered 50000 kms guarantee. But in case any manufacturing defect of the tyre, it will be replaced. The defect is not related to the manufacturing of the tyre. The engineering wing of 3rd opposite party inspected the tyre and found that the tyre is not having any manufacturing defect. Upon the tyre there was a clear mark of hit on the side wall of the tyre. As such it was a crack due to the impact on hitting some sharp edge or hard object at a very high speed. This can occur only due to very careless and rough handling of the vehicle. So this opposite party has no liability and the complaint is liable to be dismissed.

Upon the above contentions the following issues have been raised for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled any relief claimed in the complaint?

3. Relief and cost.

The evidence in this case consists of the oral testimony of PW1, DW1 and Exts.A1 to A5 and B1 to B4.

Issue Nos. 1 to 3

The opposite parties admitted that they had replaced one of the tyres due to crack on shoulder area which is a manufacturing defects soon after within two months of the purchase of the vehicle. This was done as per the Ext.A4 report. But they contended that the crack was only on hair-line crack. But no such details are in the Ext.A4 report. Similarly opposite parties again admitted on 16.5.07 that they had inspected the tyre and has filed a report ie.A5 report. In the report also it is written as” external cut on shoulder area”. But the opposite party contended that this defect was occurred due to hit of a sharp 0bject upon the tyre. But on perusal of Ext.A5 nothing is stated in the report with respect to the reason for such defect. More over, the opposite party has not examined the expert who had inspected the tyre and filed report. So it can be seen from the report itself that the both defects are one and the same.

This defect was noticed within the guarantee period itself. So from the available evidence on record it is seen that the tyre became defective within the period of guarantee and once the tyre was replaced by opposite party due to manufacturing defect. So we are of the opinion that there is some deficiency on the part of 3rd opposite party who is the manufacturer of the tyre and hence he is liable to compensate the complainant either b y replacing the defective tyre or to refund the value of the tyre with Rs.1000/- as cost and compensation and the complainant is entitled to receive the same. Opposite parties 1 and 2 has no liability and hence they are exonerated from liabilities.

In the result, the complaint is allowed directing the 3rd opposite party either to replace the defective tyre or to refund the value of the tyre with Rs.1000/- as cost and compensation to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order against the 3rd opposite party under the provisions of consumer protection act.

A.K.Mohammed Nassar,

“Delsile”, Chovva, Complainant

Kannur 6.

(K.M.Pradeepnatha)

1. Managing Director,

Amana Toyota VPK Motors (P) Ltd.

Thottada.P.O. Kannur 7.

(Rep. by Adv.P.Faizl)

2. The Manager,

Customer Service Division

Toyota KirloskarMotor Ltd.,

Plot Bidai, Ramanagar Taluk,

Bangalore Rural Dist 562 101 Opposite parties

(Rep.by Adv.Faisal.P)

3. Manging Director,

Good Year India Ltd.,

Mathura Road, Bullabagarh,

Faridabard, Hyrana.

(Rep. by Adv.J.Krishnakumar)

O R D E R

Smt.K.P.Preethakumari, Member

This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pay the cost of New Tyres with Rs.10, 000/- as compensation and cost.

The case of the complainant is that he had purchased a Toyota, Innova-G1-8 model vehicle on 28.11.06. At the time of purchase the opposite parties made believe the complainant that the vehicle and its tyres are of high quality and also backed their claims with massive advertisement campaign. But to the utter shock of the complainant on 3.2.07, after running 5370kms, the wheel tyres on the rear right side had a crack on the shoulder area and admitting the defects in the tyre the opposite parties replaced the same. But again on 16.5.07, after 12,800/- km usage again found an external crack on the shoulder area of the tyre and the spot inspection of the report of the 3rd opposite party found that this was not adjustable under warranty and hence the replacement of the tyre was denied. This indicates and prove the poor quality and manufacturing defects of the tyes. The complainant has used this vehicle only for personal use and for the use of his family members. Because of the non-replacement the complainant had to use other vehicles for several days and this resulted in huge expenditure. The complainant had purchased a new tyre spending Rs.3750/-. So the opposite parties had committed unfair trade practice and deficiency of service. Stating all these facts the complainant issued a registered lawyer notice to the opposite parties on 2.11.07, but instead of replacing it they had issued reply stating false contentions. Hence this complaint.

On receiving notice from the Forum opposite parties 1 to 3 appeared and filed their version. The opposite parties 1 and 2 filed version with the following contentions: Oppose parties 1 and 2 admits that the complainant had purchased a Toyota Innova from 1st opposite party and it was free from any defect and all other fittings are of good qualities and are free from any defects. The tyres are warranted under a separate warranty provided by the tyre manufacturer. The warranty provided by the vehicle manufacturer does not cover tyre, battery etc. The tyres are manufactured by 3rd opposite party and it is the responsibility of the tyre manufacturer to rectify or replace the tyres if any manufacturing defect is seen in the tyre. So the opposite parties 1 and 2 has no liability and the complaint is liable to be dismissed. On getting the second complaint from the complainant on 16.5.07, the 1st opposite party reported to the 3rd opposite party and they conducted a spot inspection of the tyre, the very same day. The spot inspection conducted by the tyre manufacturer revealed that the complaint of external part as shoulder area is due to some external hit and not due to any manufacturing defect. So the tyre manufactures reported that the tyre is not replaceable under warranty. So there is no deficiency of service or unfair trade practice on the part of opposite parties 1 and 2.

3rd opposite party also filed version contending that the complainant is not a consumer. The complainant is a businessman and he purchased the vehicle for his business purpose. The 3rd opposite party admits that the tyre fitted in the vehicle supplied by the 2nd opposite party is manufactured by the. But they never offered 50000 kms guarantee. But in case any manufacturing defect of the tyre, it will be replaced. The defect is not related to the manufacturing of the tyre. The engineering wing of 3rd opposite party inspected the tyre and found that the tyre is not having any manufacturing defect. Upon the tyre there was a clear mark of hit on the side wall of the tyre. As such it was a crack due to the impact on hitting some sharp edge or hard object at a very high speed. This can occur only due to very careless and rough handling of the vehicle. So this opposite party has no liability and the complaint is liable to be dismissed.

Upon the above contentions the following issues have been raised for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled any relief claimed in the complaint?

3. Relief and cost.

The evidence in this case consists of the oral testimony of PW1, DW1 and Exts.A1 to A5 and B1 to B4.

Issue Nos. 1 to 3

The opposite parties admitted that they had replaced one of the tyres due to crack on shoulder area which is a manufacturing defects soon after within two months of the purchase of the vehicle. This was done as per the Ext.A4 report. But they contended that the crack was only on hair-line crack. But no such details are in the Ext.A4 report. Similarly opposite parties again admitted on 16.5.07 that they had inspected the tyre and has filed a report ie.A5 report. In the report also it is written as” external cut on shoulder area”. But the opposite party contended that this defect was occurred due to hit of a sharp 0bject upon the tyre. But on perusal of Ext.A5 nothing is stated in the report with respect to the reason for such defect. More over, the opposite party has not examined the expert who had inspected the tyre and filed report. So it can be seen from the report itself that the both defects are one and the same. This defect was noticed within the guarantee period itself. So from the available evidence on record it is seen that the tyre became defective within the period of guarantee and once the tyre was replaced by opposite party due to manufacturing defect. So we are of the opinion that there is some deficiency on the part of 3rd opposite party who is the manufacturer of the tyre and hence he is liable to compensate the complainant either b y replacing the defective tyre or to refund the value of the tyre with Rs.1000/- as cost and compensation and the complainant is entitled to receive the same. Opposite parties 1 and 2 has no liability and hence they are exonerated from liabilities.

In the result, the complaint is allowed directing the 3rd opposite party either to replace the defective tyre or to refund the value of the tyre with Rs.1000/- as cost and compensation to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order against the 3rd opposite party under the provisions of consumer protection act.

Date of presentation: 14.11.2007

Date of decision: 06.01.2010

Shri Devinder Singh Thakur S/O Shri Parkash Chand Thakur,
R/O Sant Albans Cottage, Near Boys Senior Secondary School, Lal Pani, Shimla.H.P.

… Complainant.
Versus
1. ENOPEE Motors LTD.

177 H Industrial Area, Phase-1

Authorised Dealers of TOYOTA make of Vehicle Chandigarh, through its Manager/Proprietor.
2. Costumer Service Division, Toyota Krilosker Motors Ltd. Plot No. 1 Bidadi Industrial Area, PO Bidadi, Ramanagar Taluk, Banglor Rural District Pin562109.
3. Personal and Auto. Credit Establishment, SCO 53,54 2nd floor above induslnd bank, Sec. 8-C, Madhyamarg Chandigarh, through its Manager.
4. ICICI Bank LTD, The Mall, Shimla HP,

Through its Manager.

…Opposite Parties
For the complainant: Mr. Bhupinder Pathania, Advocate.

For the Opposite Parties: Ms. Ritu Sharma, Advocate vice for

OPs No. 1 & 2.

OPs No. 3 & 4 exparte.
O R D E R:

Per, Charanjit Singh, Member:-

This complaint has been filed by Shri Devinder Singh Thakur, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, in the month of November, 2006, he, in order to purchase a vehicle, to earn his livelihood, visited the OP No.4, to avail the loan facilities, who approved the loan agreement, vide loan account No.LASHM00009430237, in the month of December and issued the loan sanction letter in favour of the OP No.2. Thereafter, the complainant visited he OP No.1, and paid first installment of Rs.14,225/- and also handed over him the vehicle and also assured him that the documents will be sent through post and thereafter, the complainant continued paying all the installments, till date. The complainant further proceeded to aver that the documents were withheld by the OP No. 1 for the reasons that the OPs No.3 & 4 caused delay in remitting the loan amount, after two-three months. He further averred that the negligent act of the OPs, he could neither register the vehicle nor could ply the same, hence, has been put to great financial loss. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Bank and accordingly relief to the extent as detailed in the relief clause be awarded in his favour.

2. The OP No.1, in its written version admitted the sale of vehicle to the complainant, rather, it is denied that the OP No.1, intentionally withheld the document. The OP No.1, received a payment of Rs.66,860/- and Rs.650/- in cash on 07.12.2006 and 10.01.2007. The vehicle was handed over to the complainant and the documents were to be supplied on receipt of the full and final payment. It is contended that the cheque issued for Rs.18,250/- dated 18.01.2007, was dishonored. Thereafter, a payment of Rs.6,10,840/- was received on, 27.02.2007 and Rs.21,510/- on 10.04.2007 and cash payment of Rs.29,561/- on, 26.12.2007. Thereafter, the OP No.3 was asked to collect the paper, but, as the complainant was not present, hence, the paper could not be delivered. The OP No.2, also filed separate reply, who denied that the OP No.1 is an agent of the OP No.2 or that OP No.2, is, doing its business through OP No.1. It is contended that the OP No.1, purchases the vehicle from the OP No.2, on payment of full price and taxes. It is further contended that it has nothing to do with the present case. The OP No.3, in its written version denied that OP No.3, is, financier of the vehicle, rather, the ICICI Bank is the financier. It is contended that the complainant did not complete the formalities which were required for availing loan facilities and he also did not deposit the margin money as well as two advance EMI of Rs.1,01,210/- and Rs.28,510/-, out of which he paid only Rs.66,860/- and Rs.15,000/- and promised to pay the remaining amount out of Rs.1,30,720/- within the short period of 10 days. In nutshell, it is contended that it was the duty of the complainant to deposit the advance amount of Rs.1,30,720/-, i.e. down payment, hence, the documents could not be supplied to him due to his lapse being not paying the total down payment. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the act of the OPs, in not delivering him the documents of the vehicle, so as to enable him to register the vehicle with the concerned authority. On the other hand, the OPs, have repudiated the claim of the complainant, inasmuch, as, the complainant did not deposit the advance amount of Rs.1,30,720/-, hence, in not paying the total down payment, the documents could not be delivered to him.

6. The OP No.3 has not been able to place on record any proof qua the fact that the complainant was liable to pay down payment of Rs.1,30,720/-, hence, it cannot be construed that they were disabled to make the entire payment of the loan amount to the OP No.1. For lack of proof to substantiate the fact that the complainant was required to deposit Rs.1,30,720/- being the down payment, the act of the OP No.3, in not timely making defrayment of the loan amount to the OP No.1, was a clear cut case of deficiency in service.

7. So far as the plea of the OP No.3, with regard to territorial jurisdiction is, concerned, the OP No.3, in its reply under paragraph 1, has categorically admitted that the ICICI Bank is the financier of the vehicle, and since ICICI Bank has been impleaded as OP No.4, hence, it can safely be constructed that this Forum has got the territorial jurisdiction to entertain the and try the instant complaint.

8. The complainant has averred that due to non-registration of vehicle, well in time, he has suffered loss of Rs.30,000/-, on account of excise tax rebate and has also to pay penalty of Rs.3,000/-. He has also averred that suffered loss of Rs.2,000/- per day due to non-plying of the aforesaid vehicle. But no cogent, convincing and apposite evidence has been brought on record by the complainant for substantiation of the aforesaid facts. In the absence of material on record, we are not inclined to accept his aforesaid version. Therefore, it shall be appropriate and in the expedient of interest of justice, if the complainant, is, held entitled to a consolidated sum of Rs.10,000/- as damages from the OP No.3 only. Since, the documents were ordered to be released to the complainant vide zimni order dated 15.11.2007, hence, no order is required to be passed on this score.

9. Accordingly, we allow this complaint and direct the OP No.3 to pay damages of Rs.10,000/- to the complainant, for causing him, pain, suffering and humiliation, within a period of forty five days after the date of receipt of copy of this order, failing which it shall also be liable to pay interest on the aforesaid sum, at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 14.11.2007, till actual payment is made. Besides, this the OP No.3, shall also pay cost of litigation to the complainant, which is assessed at Rs.2,000/-. The learned counsel for the contesting parties undertook to collect the certified copy of this order from the office, free of cost, as per rules, whereas, a certified copy of this order shall be sent to the remaining OPs, for compliance through UPC. The file after due completion, be consigned to record room.

DIFICIENCY OF SERVICE

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Originally posted by :ashok b v
"	Dear Members, kindly advise me on following query X Purchased a New car from a Car dealer Y. The tyres of the Car got damaged within few days of purchase of the Car. X filed a Complaint before the Consumer Protection Forum against the Car Dealer Y and the Tyre manufacturing Company Z. The Tyre Manufacturer. Company, Z stated in their contention before CP Forum that the Tyre Manufacturer. Company Z have contract with the Car Manufacturing Company only and hence, there is no “privitty of contract” between the Consumer X and Tyre manufacturing Company Whether this contention of Z is valid? advise me?	"