State Consumer Disputes Redressal Commission
Omkar Gupta vs Tvs Motor Company Limited & Others on 14 March, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI-GOA
In the matter of First Appeal 74 of 2019 in Consumer
Complaint 36 of 2018.
Before Shri Dhananjay A. Jog, Presiding Member
Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna A.M. Gonsalves, Member
Shri Omkar Gupta,
s/o Shri Hanumant Gupta,
House no. 379 PNG/17,
Mondo Benaulim,
Salcete, Goa. 403716 .....Appellant
V.
TVS Motor Company Limited,
P.B. No. 1, Bythahalli,
Kadakola Post, Mysore,
Karnataka. 571311. .....Respondent-1
Sarur Motors,
Authorized Main Dealer (TVS Service),
Opp. Multipurpose Government School,
Borda, Margao, Salcete, Goa. .....Respondent-2
TVS Credit Services Limited,
Jayalakshmi Estates, 29,
Haddows Road, Chennai,
Tamilnadu. 600006. .....Respondent-3
Appellant present in person and argues for himself.
Adv. Ms. D. Shirgaonkar present for Respondent-1.
Adv. Shri J. Ramaiya present for Respondent-2.
Adv. Ms. V. Kudchadkar present for Respondent-3.
DATE: 14/03/2023
1
JUDGEMENT
{per Shri Dhananjay A. Jog, President}
1. This Judgment and Order shall decide upon Appeal filed before us on 01/12/2019. Said Appeal challenges Order dated 07/11/2019 by District Commission, South in Complaint CC/36/2018.
2. Appellant was Complainant and Respondents were Opposite Parties before said District Commission in above Complaint.
3. For the purpose of this Judgment Parties are addressed as they stand before us.
4. It is Appellant's case that he filed a Complaint on 21/06/2018 before the said District Commission and that the same was registered as CC/36/2018.
5. Present Respondents were prayed to be directed to refund to Appellant an amount of Rs.1,13,767/- with interest thereon and further to pay compensation and cost.
6. The Impugned Judgment by District Commission, South pronounced on 07/11/2019 dismissed the Complaint. Appellant is hence before us.
7. The background in the matter is as under:-
i. Impressed upon by quality and functioning of "Apache RTR 200 CC Motorcycle". Complainant purchased the same from Respondent-2 who is the authorized dealer of Respondent-1, the Manufacturer of the above vehicle.2
ii. That within a few months, Appellant/Consumer discovered the defects as under: Since the alleged defects are extensive, they are listed below:-
a. Engine oil leakage between the head and cylinder block.
b. After oil leakage power drop.
c. Front fork bent.
d. Front tyre wear out.
e. Gear box leakage from gear shifter side. f. Rear mono shock hard.
g. Rear brake failure and noise.
h. Clutch system hard operation. i. RPM got stuck.
j. Fuel indicator not showing.
k. Speedometer malfunctioning. l. Gear shifting problems. Gears got engaged in neutral position when bike is in steady mode. m.Engine noise changed it started whistling. n. Front and rear alloy wheels out of shape. o. Front disk beak noise.
p. Chain sprocket defective and noise. q. Head light becomes foggy.
r. Fuel tank cap fitting not proper all petrol smell comes out.
s. Carburettor problem not fuel efficient. t. Engine not bolts not proper looks like half engine was removed and replaced. u. Seat covers are tearing off pins got rusty. v. Half the parts were replaced on warranty except engine and some other parts. But same parts came for replacement again which were replaced on warranty.3
iii. A Complaint about the above defects was given to Respondent-2 and as mutually decided, the suit vehicle was delivered to Respondent-2 for necessary repairs. However said Respondent-2 (whether with or without guidance from Respondent-1) could not rectify the same.
iv. Hence Appellant asked for replacement of the suit motorcycle, to which Respondents-1 & 2 did not agree.
v. Respondent-3 is a finance provider who enables Consumers to purchase vehicles and thereby eases the liability to pay upfront the entire costs of a vehicle and provides the financial provision to pay for the same in instalments.
vi. It is to be noted that Respondent-3 (TVS Credit Service Ltd.), from its name, appears obviously to be associated with Respondent-1 (TVS Motor Company Ltd.) vii. Upon the Complaint being admitted at above referred District Commission, Respondents-1 & 2 appeared and/or were represented. Respondent- 3, though served did not appear and hence the District Commission ordered the matter to proceed ex-parte against the latter.
viii. It is Respondent-2's case that Appellant purchased the suit vehicle for commercial purpose. That Appellant suppressed material facts and that the Complaint was frivolous and 4 vexatious. Further that Appellant breached the Warranty conditions and that for the above reasons, the Complaint was dismissed. That Appellant was given, at the time of delivery of the suit vehicle a comprehensive User's Manual which listed features, maintenance instructions and service procedures. That Respondent-2 was to give 5 free services to Appellant as provided in the Manual. However it is Respondent-2's case that Appellant did not adhere to the said instructions/schedule and hence that he is not entitled to the benefits of Warranty.
ix. That Appellant has driven the suit motorcycle for over 1,000 kms. within a period of 6 days. Further that, the suit motorcycle is fully repaired and under running condition and is lying in Respondent-2's workshop since January 2018. However that Appellant has not taken delivery of the same and is simply asking for replacement of the vehicle.
x. The District Commission in its Impugned Judgment observed that there was no deficiency on the part of Respondents and that hence no compensation is due to Appellant.
8. Having reviewed the background as detailed above, we observe that present Appellant (Complainant) came before us in Appeal on 10/12/2019. Parties filed Written Arguments and Oral Arguments were preferred on 07/02/2023.
59. Adv. Ms. Deepa Shirgaonkar for Respondent-1 the Manufacturer stated and would also argue that as Manufacturer they have a Principal-to-Principal Agreement with Respondent-2 who is their Dealer. That accordingly the Manufacturer supplies vehicles including the suit vehicle to the Dealer and there is no privity of contract between the Manufacturer and the end buyer (present Appellant). That if no manufacturing defects are evident or established then no liability may be attributed to the Manufacturer. That Manufacturer heard of the alleged problems faced by Appellant only after Appellant as Complainant filed a case before the District Commission.
10. Adv. Shri J. Ramaiya appeared for Respondent-2 the Dealer and stated that Job Cards in respect of suit vehicle which are produced have not been disputed. Counsel further showed on record, through the said Job Cards that the suit vehicle was driven approximately 1036 kms within 6 days of purchase. Further record show that within 60 days a distance of 3000 kms was travelled and as on 19/01/2018 the distance covered by the suit Motorcycle was 8486 kms. That if a vehicle could cover so much of distance then allegations of frequent stopping every 50-100 kms do not appear realistic.
11. Further also that a buyer of vehicle is expected to adhere to the Owner's Manual which is supplied with the vehicle. That specifically at page 1 of the said Manual it is informed that running of the first 1000 kms is a crucial part and that reliability and 6 performance of the vehicle depends upon special care and restraint exercised during this period. That it is especially important that during this run-in period the vehicle should be driven at a maximum speed of 50 kms/hour. Further that the first free service should be availed between the initial 500- 750 kms. That Appellant has not adhered to all above.
12. We observe that in the Impugned Order by the District Commission, it was noted that the running of the vehicle averaged 173 kms daily (1036 kms in 6 days). That the 3rd Servicing was done on 21/10/2017 at which time the vehicle had covered 2918 kms and the next i.e. 4th Servicing after that on 19/01/2018 showed 8486 kms of run.
13. Upon scrutinizing the records at the District and those before us and upon hearing Oral Arguments preferred we determine as under:
14. Having run the number of kilometres as is established through records we do not find that Appellant is entitled to receive a replacement of the vehicle. However it is indeed the responsibility of Respondent-2, the Service Dealer to carry out any repairs necessary and is directed to do so if the vehicle is brought in with any complaints.
15. We hence dismiss the Appeal subject to observation at clause 14 of this Judgment.
716. In the facts of the matter there is no Order as to costs.
[Shri Dhananjay A. Jog] President [Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna A.M. Gonsalves] Member sn 8